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Court of Criminal Appeal 10 December 2025

Jindalee Road Wines Pty Ltd v Natural Resources Access Regulator; Littore v Natural Resources Access Regulator

[2025] NSWCCA 215

Other
ENVIRONMENT AND PLANNING ENVIRONMENTAL CRIME STRICT LIABILITY OFFENCES APPEAL AGAINST SENTENCE PARITY ARITHMETICAL ERROR IN SENTENCE

Citation: Jindalee Road Wines Pty Ltd v Natural Resources Access Regulator; Littore v Natural Resources Access Regulator [2025] NSWCCA 215
Court: Court of Criminal Appeal
Date: 10 December 2025
Judges: N Adams J, Cavanagh J, Rigg J

Background

A corporate vineyard operator and its farm manager pleaded guilty to four offences each under the Water Management Act 2000 (NSW). The offending involved installing bypass infrastructure at two separate leased properties to pump water from irrigation works without passing through the metering system operated by Western Murray Irrigation Limited. The farm manager installed the bypasses on both occasions; the company was held vicariously liable for his conduct, even though he had acted without the authority or knowledge of the company.

Both the "Infrastructure Offences" (damaging or interfering with works owned or controlled by an irrigation corporation under s 342(1)(a)) and the "Take Water Offences" (taking water from a water supply work without authorisation under s 343(1)) attract strict liability. The sentencing judge in the Land and Environment Court imposed fines across all eight proceedings in March 2024.

Following the original sentence, the prosecutor filed a motion to correct what it characterised as an arithmetical error in the sentencing judgment. The judge amended the fines in October 2024 using the slip rule under r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW). Both appellants then challenged the amended sentence on multiple grounds, including the validity of the slip rule amendment, the approach to totality, and parity between the co-offenders.

  • Whether the slip rule under UCPR r 36.17 was available to correct an arithmetical error in a criminal sentence imposed in Class 5 proceedings in the Land and Environment Court
  • Whether the amendment under the slip rule constituted an impermissible re-exercise of the sentencing discretion
  • Whether the sentencing judge applied the totality principle correctly when imposing multiple fines across different properties and time periods
  • Whether the disparity in fines between the corporate appellant and the individual farm manager was appellable on parity grounds

Decision

Slip rule: The Court held that UCPR Part 36, including r 36.17, is expressly incorporated into the Land and Environment Court Rules 2007 (NSW) by rr 5.1 and 5.2(2)(h), and applies to Class 5 proceedings in the Land and Environment Court. The phrase "so far as applicable" in r 5.2(2) did not permit a purposive analysis to exclude the rule from criminal proceedings in that jurisdiction. The slip rule therefore was available to correct an arithmetical error in the original sentence.

The Court further held that applying the slip rule in this instance did not require the judge to re-exercise any sentencing discretion. The original reasons revealed a clear stated intention to apply a 50% reduction to the Take Water Offences for totality, but the orders as originally made did not reflect that intention. Correcting that error involved no evaluative or discretionary exercise; it simply gave effect to what the judge had expressly stated she intended to do.

Totality: The Court found error in the sentencing judge's approach to totality. The principle of totality applies to the imposition of fines, and requires the sentencing court to stand back after identifying each individual fine and assess whether the aggregate total across all offences is just and appropriate, reflecting the total criminality involved. The judge had assessed totality only within each property pairing rather than across all four fines for each appellant. That was a material error warranting resentencing.

Parity: The Court declined to intervene on the parity ground. Although the fines for the corporate appellant and the farm manager differed, the sentencing judge had carefully identified and weighed the similarities and differences between the co-offenders. The Court observed that appellate courts should proceed with particular caution before disturbing a sentence on parity grounds where the sentencing judge has engaged with that analysis. No error was established.

Orders Made

The fines imposed on 27 March 2024 (as varied on 16 October 2024) were set aside and replaced as follows:

David Alan Littore (total: $213,000):
- Premises 1 Infrastructure Offence: $90,000
- Premises 2 Infrastructure Offence: $48,000
- Premises 1 Take Water Offence: $37,500
- Premises 2 Take Water Offence: $37,500

Jindalee Road Wines Pty Ltd (total: $345,000):
- Premises 1 Infrastructure Offence: $180,000
- Premises 2 Infrastructure Offence: $120,000
- Premises 1 Take Water Offence: $22,500
- Premises 2 Take Water Offence: $22,500

The parties were directed to inform the Court within seven days if any further orders were necessary.

Key Takeaways

  • UCPR r 36.17 (the slip rule) applies to criminal sentencing proceedings in Class 5 of the Land and Environment Court's jurisdiction by virtue of the Land and Environment Court Rules 2007 (NSW), and the phrase "so far as applicable" in those rules does not permit a court to conduct a purposive analysis to exclude individual UCPR provisions.

  • The slip rule permits correction of an arithmetical error in a sentence without constituting a re-exercise of the sentencing discretion, provided the correction simply gives effect to the court's clearly stated original intention rather than substituting a fresh evaluative judgment.

  • The totality principle applies to the imposition of fines in environmental and water-related criminal proceedings. After fixing individual fines, the sentencing court must assess the aggregate total against the overall criminality of all offences, not only within individual property or incident groupings.

  • In dismissing the parity ground, the Court of Criminal Appeal reaffirmed that appellate intervention on parity requires a demonstrated error, and that particular caution is warranted where the sentencing judge has carefully and expressly addressed the differences between co-offenders.

  • On resentencing, the Court applied a 20% reduction to the Infrastructure Offence fines for both appellants to achieve an appropriate total, leaving the Take Water Offence fines undisturbed.

Legislation and Cases Referenced

Legislation:
- Water Management Act 2000 (NSW), ss 342(1)(a), 343(1), 347, 364A
- Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 36.17
- Land and Environment Court Rules 2007 (NSW), rr 5.1, 5.2(2), 5.2(2)(h)
- Criminal Appeal Act 1912 (NSW), s 5AB
- Land and Environment Court Act 1979 (NSW), s 21
- Crime (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(3)(a)

Cases:
- Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
- EPA v Barnes [2006] NSWCCA 246
- Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34
- Epacris Pty Limited v Director-General, Department of Natural Resources (2007) 69 NSWLR 507; [2007] NSWCCA 76
- Ainsworth v Wilding [1896] 1 Ch 673
- Ivanhoe Gold Corporation Ltd v Symonds (1906) 4 CLR 642; [1906] HCA 71
- Fleming v White (1981) 2 NSWLR 219
- ACE Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- House v The King (1936) 55 CLR 499; [1936] HCA 40