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Court of Criminal Appeal 9 March 2026

CEAL Limited (Trading as Multiquip Quarries) v Secretary, Department of Planning, Housing and Infrastructure

[2026] NSWCCA 20

Other
CRIME APPEALS APPEAL AGAINST SENTENCE NO WRONG PRINCIPLE IDENTIFIED

Citation: CEAL Limited (Trading as Multiquip Quarries) v Secretary, Department of Planning, Housing and Infrastructure [2026] NSWCCA 20
Court: Court of Criminal Appeal (NSW)
Date: 9 March 2026
Judge(s): Payne JA, Weinstein J, Rigg J (Rigg J delivering the principal judgment)

Background

The appellant, a company operating a basalt rock and river sand quarry in Bungonia, NSW (trading as Multiquip Quarries), had pleaded guilty in the Land and Environment Court to two offences of carrying out development not in accordance with the conditions of its development consent, contrary to s 4.2(1)(b) of the Environmental Planning and Assessment Act 1979 (NSW). The first offence involved the use of certain silt cells and management areas in a manner inconsistent with the approved project layout over approximately 19 months. The second offence involved importing approximately 6,000 tonnes of Virgin Excavated Natural Material (VENM) — described as pristine soil with no contaminants — to the quarry site without the Planning Secretary having first approved a required Waste Management Plan.

The sentencing judge in the Land and Environment Court convicted the appellant and imposed fines of $56,000 for the first offence and $42,500 for the second, totalling $98,500. Additional orders were made for costs, payment of a moiety, and publication of the offending. The appellant appealed as of right to the Court of Criminal Appeal, arguing that the sentencing judge had erred in her approach to, and ultimate rejection of, a disposition under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act) — which would have allowed the offences to be dealt with without recording a conviction — and in her assessment of mitigating and extenuating circumstances.

  • Ground 1: Did the sentencing judge err by engaging in an impermissible "two-stage" sentencing process — first rejecting a s 10 non-conviction order and then separately determining the appropriate sentence — rather than conducting an integrated "instinctive synthesis" assessment? Relatedly, did the sentencing judge fail to take into account relevant considerations in declining to exercise the s 10 discretion?

  • Ground 2: Did the sentencing judge apply a wrong principle in her consideration of "extenuating circumstances" under s 10(3)(c) of the Sentencing Act, effectively failing to recognise factors that the appellant submitted should have been treated as extenuating?

  • Ground 3: Did the sentencing judge err by taking into account an irrelevant consideration — namely, that a conditional release order under s 10(1)(b) of the Sentencing Act is "more appropriately made in the case of an individual defendant" — in a manner that improperly restricted the availability of such orders to corporate offenders?

Decision

Ground 1: No impermissible two-stage process

The Court dismissed this ground, finding that the sentencing judge did not engage in an impermissible two-stage sentencing process. Rigg J explained that in her determination of whether to record a conviction, the sentencing judge appropriately took into account the circumstances of both the offences and the offender as required by s 10 of the Sentencing Act, including those matters raised by the parties. This involved a consideration of a mixture of subjective and objective features — consistent with the instinctive synthesis approach — rather than the kind of rigid staged reasoning that would constitute error. The Court noted that because the appellant had not submitted at first instance that all circumstances of the offences and offender were relevant to the s 10 question, the sentencing judge was not required to explicitly refer to every such matter. When the sentencing judge then turned to determining the quantum of the fines, she explicitly took all relevant circumstances into account, consistent with the approach mandated by Markarian v R (2005) 228 CLR 357 and Muldrock v R (2011) 244 CLR 120.

Ground 2: No error in extenuating circumstances finding

The Court rejected this ground on the basis that it was not properly framed. The appellant identified no wrong principle applied by the sentencing judge but rather sought to challenge a factual finding about whether extenuating circumstances existed — without arguing that the finding was not reasonably open, and without framing the challenge in any of the accepted ways identified in Hancock v R [2025] NSWCCA 213. The Court noted the ground could be rejected on that basis alone. However, Rigg J went further and found that it was reasonably open to the sentencing judge to make the factual finding she did. Moreover, even if there had been factual error, it could not have been material, because the factors the appellant contended were extenuating had already been considered by the sentencing judge in her assessment of the objective seriousness of the offending.

Ground 3: No irrelevant consideration regarding corporate offenders and CROs

The Court found that the sentencing judge did not restrict the availability of conditional release orders (CROs) under s 10(1)(b) to individual offenders. Rather, her Honour observed that CROs appear to be more commonly made for individuals — a factual observation about usual practice, not a statement of legal principle limiting their availability. The Court also held that the practical inapplicability of certain conditions that can be attached to CROs (such as supervision or community service) to corporate offenders was not an irrelevant consideration. It was a legitimate matter to weigh in assessing the utility and appropriateness of such an order for a company.

Orders Made

  • Appeal dismissed on all three grounds.
  • The sentences imposed at first instance (fines of $56,000 and $42,500, together with associated costs, moiety, and publication orders) were undisturbed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that section 10 non-conviction orders remain available for corporate offenders, while holding that a sentencing judge is entitled to consider the practical limitations of conditions attachable to conditional release orders when the offender is a company, and that doing so does not constitute reliance on an irrelevant consideration.

  • Under the instinctive synthesis approach, a sentencing judge does not err merely by addressing the section 10 question before determining the quantum of any fine, provided both assessments involve an integrated consideration of objective and subjective factors, as the Court of Criminal Appeal found that this approach applies equally to the section 10 question and to the determination of penalty.

  • Challenges to factual findings on sentence must be properly framed within established appellate frameworks; an appellant cannot effectively challenge a factual finding (such as whether extenuating circumstances exist) under the guise of alleging a "wrong principle" without demonstrating that the finding was not reasonably open.

  • Even where a factual error is identified, it will not ground appellate intervention unless it could have been material to the outcome. The Court noted that where the same factors have already been weighed elsewhere in the sentencing analysis (for instance, in assessing objective seriousness), an error in their treatment under another heading may be inconsequential.

  • In dismissing the appeal, the Court of Criminal Appeal reinforced that a sentencing judge may not be required to address matters not expressly raised at first instance, underscoring the importance of all circumstances relied upon in support of a section 10 order being articulated before the sentencing court.

Legislation and Cases Referenced

Legislation:
- Environmental Planning and Assessment Act 1979 (NSW), s 4.2(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 10(1)(b), 10(3)(c)
- Criminal Appeal Act 1912 (NSW), ss 5AA, 5AB
- Protection of the Environment Operations Act 1997 (NSW), s 250(1)(a)
- Fines Act 1996 (NSW), s 122(2)
- Criminal Procedure Act 1986 (NSW)

Key Cases:
- Markarian v R (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
- Hancock v R [2025] NSWCCA 213
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
- CMB v Attorney-General (NSW) (2015) 256 CLR 346; [2015] HCA 9
- Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482