Attorney General for the State of New South Wales v Ceerose Pty Ltd

The Court of Appeal was presented with an appeal against the sentence imposed on Ceerose Pty Ltd by the primary judge. The company was convicted of breaches of the Environmental Planning and Assessment Act 1979 (NSW), relating to unauthorised earthworks and vegetation clearance. The primary judge sentenced the company to a fine of $1,000,000, which the company considered manifestly inadequate given the severity of the environmental harm caused by its actions. The appeal focused on whether the primary judge erred in their assessment of the objective seriousness of the offending and whether the penalty imposed was manifestly inadequate.

The appeal raised several legal issues for the Court of Appeal to consider. Firstly, whether the primary judge failed to have proper regard to the maximum penalty available under the legislation and the increase in that maximum penalty since the offending occurred. Secondly, whether the primary judge erred in their assessment of the objective seriousness of the offending. Thirdly, whether the penalty imposed was manifestly inadequate, and lastly, whether the Court should exercise its residual discretion not to intervene, even if the sentence was not manifestly inadequate.

In addressing the appeal, the Court of Appeal found that the primary judge did not have proper regard to the maximum penalty available under the legislation and the increase in that maximum penalty since the offending occurred. The Court of Appeal also found that the primary judge erred in their assessment of the objective seriousness of the offending, as they failed to consider the full extent of the environmental harm caused by the company's actions. Given these errors, the Court of Appeal found that the penalty imposed was manifestly inadequate. The Court of Appeal exercised its residual discretion to increase the penalty to $2,000,000, reflecting the seriousness of the offending and the need for general deterrence.

The Court of Appeal ordered that the fine imposed on Ceerose Pty Ltd be increased from $1,000,000 to $2,000,000, with the company to pay the additional $1,000,000 within 28 days. The Court of Appeal also ordered that the company pay costs of the appeal on an indemnity basis.