Alramon Pty Limited v City of Ryde Council

The Local Court proceedings 16Until 21 October 2013, Cerreto had been named as the defendant in the first charge, and Alramon in the second. The relevant Court Attendance Notice ("CAN") served 28 March 2014 and filed on 9 April, (both CANs are at AB, Tab B), was amended by leave of the Local Court on 21 October, to substitute Alramon for Cerreto on the first charge, and Alramon, which had earlier pleaded guilty to the second, immediately pleaded guilty also to the first. 17Once the charges came before the Local Court on 9 April 2013, they had a complex case management history, of some relevance to any discount for pleading guilty (see respondent subs, par 3, and Exhibit R1). There was initial delay on the part of the two original defendants (see Exhibit R1, fol 2), but the prosecutor agreed on the first return date to serve a brief of evidence in an effort to expedite matters. Subpoenas were then issued, and the defence indicated to the Magistrate that a two to three-day hearing would be involved (fols 9, 10 and 15). 18On 11 July, the hearing was fixed for 21 - 23 October (fol 18), with subpoenas listed for 23 July, and a pre-trial mention for 19 September. On 19 September, the Local Court was told (fol 26) that Council's dispute with the defendants over development at No. 29 was before the Independent Commission Against Corruption ("ICAC") the next day, as part of its inquiry concerning Ryde Council officers. 19The Magistrate stood the matter over to 26 September, on which occasion the solicitor for the defendants foreshadowed vacation of the October hearing dates, on the basis that the ICAC hearings were "still on foot" (fol 28), not necessarily implicating Cerreto or Alramon in any possible findings of corruption (fol 28 - 29), but concerning Council's "assessment of these applications" (fol 29). 20The Magistrate vacated one of the three hearing dates (23 October), and confirmed 21 - 22 October. The substitution amendment was made on 21 October, and the pleas of guilty were entered (AB, Tab C, fols 1 - 2). The sentencing hearing was then adjourned to 22 October (the transcript of 22 October is at AB Tab D). 21A Statement of Facts ("SOF"), prepared by the prosecutor, was placed before both Courts (AB, Tab E). In his evidence before me, Cerreto disagreed only with one detail in the SOF - the height of the additions quoted in fact "2d", 7.11m c.f. 6.5m. 22In passing sentence, the learned presiding Magistrate (Barry LCM) summarised those facts, to which I will return. However, I will now quote, at some length, her sentencing remarks (Tpp2 - 4 at AB, Tab D, fols 5 - 7 - emphasis mine): Between 18 December 2012 and February 2013 various development works were carried out on that property being demolition works and construction works in the form of a double storey addition and a balcony. All of these works were carried out by the defendant company without consent. On 11 January 2013 a verbal direction was given by Council to cease the work. On 15 January 2013 a statutory direction was served on the defendant ordering work to cease. Work continued on the subject property and on five or six separate occasions following 15 January 2013 to late February 2013 work was observed to be continuing on that property. The maximum penalty for each of these two offences under the Environmental Planning and Assessment Act is $1.1 million. The jurisdictional limit in the Local Court is the sum of $110,000 for each offence. In determining the appropriate penalty my starting point is the maximum penalty imposed by statute. I must impose a penalty that reflects the objective seriousness of the offence. In other words, the starting point is $1.1 million nothing (sic), of course, that the maximum that can be imposed in this Court is $110,000. Objectively I must take into account the following considerations, the building work was not insignificant, the building works were clearly visible from public areas and from neighbouring properties, the works were for the benefit of the director of the defendant company who resides on the property, failure to obtain the required consent deprived the neighbouring property owners of their right to raise their concerns about the impact upon them as is their legislative right. It is clear from the documentation that neighbouring property owners did voice their objections to the construction. It is the Council's duty to assess suitability of any proposed development prior to any works being carried out. This is important because environmental, social and economic impacts need to be assessed by local councils. It is also important when viewing the question of penalty because it seems to me if persons choose to take shortcuts and to avoid the issue of having any work they want to be carried out to be assessed as environmentally, socially or economically appropriate then they must be prepared to pay a penalty. In addition, of course, by failing to obtain consent the defendant has avoided fees payable in relation to the Development Application [("DA")] and various certificates required. In relation to the failure to comply with the stop work order it is clear that despite the order being served on 15 January 2013 to cease the work the defendant continued with that building work until late February 2013. The effect of this continuing disregard is twofold; by ignoring the stop work order the defendant was able to enjoy the amenity as he resided there and to entrench the ongoing existence of the structure making it more difficult, on discretionary grounds, for the council to enforce a demolition order and secondly there clearly was an ongoing impact on the neighbouring properties. The defence have submitted that the defendant is contrite and this can be evidenced by his plea of guilty. I do note that the plea of guilty was entered on the day of the hearing after two days had been set aside for hearing. In addition, it is submitted that the defendant was of the mistaken belief that authority had been given to commence the work because he had engaged a private certifier to ensure development consent had been obtained. Curiously there does not appear to have been any thought by the defendant about the apparent lack of application fees nor of any written certification from the council or the private certifier he had engaged. The submission that he believed he had authority to commence is difficult to accept given that the defendant director of the company resided in the premises and, presumably, it would have been in his mind to ensure that any commencement of the work complied with council requirements especially as it is submitted he resided in the premises with his wife and children and presumably he was concerned for their security. These concerns are only heightened by the defendant's subsequent behaviour following the notice to cease work. He flagrantly disregarded that order. It is suggested by the defence that he did so because he needed to make the property safe and secure. These concerns were clearly not in him (sic) mind when he commenced work without approval. Both of these matters are serious breaches. It is submitted by the defence that these offences are at the lower end of the scale. I do not agree. Especially in relation to the offence under s 121B which was an ongoing deliberate disregard of the law. The work commenced was not a minor adjustment or addition but a major construction on a residential property which has enormous impact on neighbouring properties. The failure to cease work was an ongoing and deliberate disregard for the law and can never be tolerated. As I have indicated before, if people choose to take shortcuts and choose to ignore what is required in the law then they can only expect serious penalty. Taking into account the circumstances, the plea of guilty, the fact that the defendant director of the company has no prior convictions and the objective seriousness of these offences I impose the following penalties. IN RELATION TO THE MATTER UNDER S 76 I IMPOSE A FINE OF $35,000 AND IN RELATION TO THE MATTER UNDER S 121B I IMPOSE A FINE OF $60,000. 23Alramon was also ordered to pay Council's costs, which were then agreed at $20,000 (fol 8), and the appellant does not complain in this appeal about that order or that agreed amount.

The Class 6 Appeal 24On appeal, I must consider the sentencing issues afresh, and I need find no fault in the Magistrate's reasoning, in order for me to decide to vary the sentence imposed. 25Frankly, I can find nothing to criticise in her Honour's conclusions and remarks. However, the appellant complains of error (subs par 19 - 21), in these terms (emphasis mine): 19. A significant error is that the Magistrate appears not to have had any regard to the principle of totality - that is, the Magistrate failed to consider the overall criminality of the Appellant to ensure that the totality of fine imposed was appropriate and properly reflects the total criminality (R v Holder [1983] 3 NSWLR 245). 20. It is submitted that the principle of totality is a very relevant consideration which was not considered by the Magistrate. 21. In a sense it is unnecessary to even look for any further errors in process. There was the broader error that the fine imposed by the Local Court was too severe, having regard to the pattern of sentencing in this Court for comparable offences. 26Hence the issues raised by the appeal are the application of the principles of "totality" and "proportionality/evenhandedness". 27I now return, therefore, to the facts of the matter. 28The major elements of the unlawful work done at the Vimiera Rd dwelling-house between 18 December 2012 and late February 2013 (a period of at least six weeks) were demolitions (of the rear of the house, an attached covered area, and outbuilding, and a detached garage), a 4m extension of the rear of the house to accommodate living and dining areas, and construction of an attached addition comprising ground level parking, a rumpus room with balcony, and three bedrooms at first floor level. 29Such works require consent, pursuant to Ryde Local Environmental Plan 2010 ("the LEP"), but none was obtained (SOF 2 - 4). Cerreto admits to some knowledge of the DA/DC process, largely in the context of commercial works, but no experience of the CDC process. (Indeed, during argument, Mr Howard suggested that the works complained of in this matter may not have qualified for the CDC process, rather than the DA/DC process). 30A complaint by "an adjoining owner" on 18 December 2012 (AB Tab NO) resulted in Council inspections on 20 December 2012, and 10, 11 and 12 January 2013, followed by the service on 15 January 2013 of the s 121B order to "immediately ... cease all building works ... " (SOF 5 - 12, and AB Tab K). 31Work continued, and the BCA involved in matter 10768 was lodged on 17 January 2013, seeking retrospective consent for the "unauthorised and uncertified work", which was stated to have a market value of $80,000 (SOF 13 - 19, and AB Tab M). 32The AB contains many photographs depicting the property at various dates from 20 December 2012 and 5 February 2013 (AB tabs F, G, H, I, J, L, P, Q, and R). Before me, the prosecuting Council also relied upon an affidavit sworn recently by its Building Compliance Officer, Peter Lupevski, reporting on his inspection of No. 29 on 26 April 2013, and producing some photographs taken on that day, showing the fairly complete internal work done in the extension, and the relatively unchanged external appearance since the earlier photos in the AB. Cerreto said during cross-examination that little had changed on site since the Lupevski photographs. 33There were further neighbour complaints on 22 January, 16 and 18 February 2013 (SOF 16 and 19, and AB tabs S and T). 34The local complainants use terms like "eyesore", "monstrosity", "NOT of the residential-style", "towering over our ... windows", "detract from the streetscape", etc, and complain of particular amenity impacts, especially on the frail/aged residents of No. 31, eg. closeness of the extension to the boundary between Nos. 29 and 31. 35The complaints also speak of making "the whole process of property development control a real farce", because there was no "consultation with neighbours", and the SWO was "continuously and flagrantly" ignored. One complaining neighbour has a long-standing grievance about stormwater runoff following earlier works at 27/29 Vimiera Rd, and complains that the current works do not address this, and the additional drainage issues likely to be caused by the proposed further increase in "hard surface areas" (AB fol 87). 36Cerreto swore an affidavit, in this appeal, which is undated, but was filed on 19 June 2014. As a director of Alramon he says he is authorised to speak on its behalf. Cerreto told the Court that his father really controlled the company, but he is "sometimes" involved in its management. He also gave oral evidence before me, which displayed many defects in his written evidence. 37He deposes that, prior to commencing building works at No. 29, he discussed with Peter Prasad of Pyramid Consulting Pty Ltd whether those works could proceed by way of a CDC, instead of the slower DA process. He confirmed in his oral evidence that he did not speak to his neighbours at any stage - he considers that Alramon's works make no impact on them, and he "minds [his] own business". 38Prasad is described as Pyramid's "Engineering Director" (AB, fol 71), but there is no evidence from him, or concerning his qualifications to issue a CDC, even though he appears to have been the signatory on a structural certification for the works, submitted with the BCA. 39In any event, he advised Cerreto, in early December 2012, that "all was in order and all paperwork had been submitted", and that he "may commence building works". 40Cerreto acted on that advice, and "engaged builders to commence" the works. He wanted the house extended to accommodate his "growing family", and his then-expected third child was born on 10 February 2013. 41He deposes that Council contacted him about 21 December 2012 wanting "details of the project's certifier and copies of plans". He responded, nominating Prasad, providing Prasad's mobile phone number, and promising to forward "copies of drawings and engineering and basics (sic)". A Council officer responded on 3 January 2013 (Exhibit A1) as follows: "Hi Norm, I refer to your e-mail and attached documentation regarding certificates for your property below to Kiril from my office. One thing missing was a complying development certificate from your PCA. I have not received a copy and your certifier cannot confirm that one has been issued. Can you please send Council a copy ASAP in order that we can definitively confirm that you have approval to carry out the works under construction." 42Cerreto deposes (par 9) that: "At all times I believed that I was given approval for the works and I continued the building works." 43In his oral evidence, Cerreto insisted that Prasad, at no stage prior to a discussion between them, after receipt of the SWO on 15 or 16 January 2013, informed him that no CDC had been issued. In that discussion, Prasad admitted that he had "stuffed up". 44Cerreto went on to depose, in his affidavit, that Alramon received the SWO, and that he "caused" the BCA to be lodged, and he continued: 12. At the time the Order was served, the property was in a state that the roof was exposed and the building was unsecured. I was placed in a position that if I did not complete some works in order to secure the Property that I would have been exposed to weather elements and possible theft. In order to secure the Property for my family, I continued to complete some works which was the finalisation and installation of a roof and secure the property. 13. At the time of these works being undertaken, I resided at the property with my wife, my new born daughter and my two sons. It was my view that the safety of my family was paramount and the works continued until the Property was secured. 45In his words, he "had no choice", but he denied that he considered himself "above the law". 46His affidavit continues: 16. As a result of the Building Certificate Proceedings and after discussions with Council, I caused to be lodged with Council a Development Application for additions and alterations to the Property which included works above the illegal structure being the constructions of a roof in order to address the concerns of Council, the Development Application was approved by Council on 6 May 2014. Annexed hereto and marked "E" is a copy of the Approval letter and approved plans. ... 20. I have since commencement of the Building Certificate Proceedings communicated and consulted with Council regarding the Development which has resulted in the works being approved at the Property. It is my intention to apply for a Construction Certificate in the next few weeks in order to commence the works in accordance with the Development Consent granted by Council. 47On the question of contrition/remorse, he deposed: 18. I am remorseful for the action undertaken by me, I should have ceased work immediately upon service of the Orders and consulted with Council staff regarding the works. I have since the property was secured, not undertaken any construction works at the property. 19. I am aware that I have disappointed my neighbours and local residents, and for that I deeply apologise. 48In his oral evidence, he said that he began to feel remorse when his "head cleared", some months after his baby was born. 49Many documents regarding all these issues were annexed to his affidavit.

Consideration 50The parties' submissions agree upon the principles governing Class 6 appeals of this type - see the Crimes (Appeal and Review) Act 2001, as interpreted and applied in cases such as Terrey v Department of Environment, Climate Change and Water [2011] NSWLEC 141; Mouawad v The Hills Shire Council ("Mouawad") [2013] NSWLEC 165; (2013) 199 LGERA 28; and, Franks v Woollahra Municipal Council [2007] NSWLEC 461. 51Likewise, the respective submissions suggest no departure from the sentencing principles which are regularly applied by this Court in its first-instance and appellate criminal work - see, e.g. their application in a Class 6 appeal: Mouawad, at [160] - [202]. 52I dealt at length with the relevant statutory provisions, sentencing principles, and influential authorities, in Newcastle Port Corporation v MS Magdalene Schiffahrtsgesellschaft MBH; Newcastle Port Corporation v Vazhnenko ("Magdalene") [2013] NSWLEC 210, especially at [117] - [160], and [269] - [278], and I will not repeat that analysis here. 53The sentencing function requires an "instinctive synthesis" by the Court of the key objective and subjective factors of the particular case - see Pain J most recently in Chief Executive, Office of Environment and Heritage v Kyluk Pty Limited (No 4) [2014] NSWLEC 74, at [39] - [40]. 54The sentence must reflect, and be "proportionate" to, the synthesis of all relevant factors, and "evenhandedness" requires the Court to have regard to the general pattern of sentencing for offences of the kind being considered, taking care to identify relevant factual differences: Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd [2013] NSWLEC 185; (2013) 199 LGERA 236, at [35] and [115] per Craig J. 55In cases of this type the Court accepts, indeed insists, that general deterrence is a most important objective in sentencing. The penalty must send "a strong warning to builders and others who carry out development work that a breach of the law will be visited with significant financial consequences": per McClellan ChJ in Keir v Sutherland Shire Council ("Keir") [2004] NSWLEC 754, at [20]. 56The question of "totality", the major submission of the appellant, did not arise in Magdalene, but all judges of this Court have applied it carefully where appropriate. 57Its classical formulation remains that of Street CJ in R v Holder ("Holder") [1983] 2 NSWLR 245, at 260 - 1, as adopted and applied, in the context of environmental offences, by, for example, the Court of Criminal Appeal in Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority ("Camilleri") (1993) 32 NSWLR 683, at 703 - 704. Street CJ put it this way in Holder (emphasis mine): "... The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straight-forward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate [which] exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. The effect of this practical consideration is always to produce an ultimate aggregate which is less than that which would be arrived at by a straight-forward adding up of the terms appropriate for the offences if each were viewed alone. In carrying out this process of adjustment, it is both inevitable as well as proper that the ultimate decision be arrived at in the light of the totality of the criminality involved in all of the offences. As has been said more than once in this Court, where the principle of totality comes into effect, it is more often than not of little importance how the ultimate aggregate is made up (that is to say, whether by a series of aggregate terms or by a series of concurrent terms, or by partly one and partly the other). The important factor is the practical significance of the sentencing order." 58In Camilleri, Kirby P added, at 704: The principle of totality is applicable where the penalty imposed is by way of fine: see R v Sgroi (1989) 40 A Crim R 197 at 203. However, it may be that the principle of totality may not have the same force in the case of the imposition of fines, as opposed to the imposition of imprisonment where it has a special operation: see R v Brown (1982) 5 A Crim R 404 at 407. 59Mr Howard submitted (par 39) that the gravamen of each of the two offences here is "quite independent" of the other. I am inclined to agree with that submission, but assessing the justification for a total penalty of $95,000, even if there were two separate courses of conduct involved, is still the essential task of the Court on this appeal. 60The appellant accepts (subs par 28) that its behaviour offends the objectives of the EPA Act, and caused foreseeable harm to the integrity of the planning process. It does not accept fault beyond "a misguided belief", and Cerreto's personal anxiety to proceed, because of the imminent birth of his third child (par 33), nor that it caused any environmental harm, in terms of harm to neighbourhood amenity. 61I acknowledge that work on the house stopped once the illegal works were secured, but I do not accept Mr Clay's submission (par 36) that, on the SWO charge, the defendant did not show "a blatant disregard of the law and the Council", but "a human response to a human situation". 62The appellant also accepts that, through Cerreto, it had control over the causes of harm, and had available to it practical measures to prevent the harm caused by both the offending work and the disobedience of the SWO. 63Mr Clay conceded (par 39) that both offences "fall into the upper level of the low range of objective seriousness for regulatory offences of this type". Mr Howard said (par 35) they were "serious", and he saw them in the "upper half of the range of objective seriousness". 64The task of classifying offences in "bands" of seriousness, in comparison with the theoretical worst case, has always been problematic (see Environment Protection Authority v Orange City Council [1995] NSWLEC 103, per Stein J, and my discussion in Magdalene, at [233], [234], [246], and [249]). 65Even the "upper level of the low range", to adopt Mr Clay's formulation, would suggest close to 10% of the worst case. However, as calculated by Mr Howard, the $35,000 penalty represents only 3.18%, and the $60,000 only 5.45%, of the statutory maximum. 66Both the company and Cerreto, as the director responsible, have no relevant prior record, and profess contrition and remorse. Mr Clay says that contrition was "plainly expressed" by Cerreto, but I agree with Mr Howard that disregarding the SWO indicates a lack of remorse, which must be expressed by more than words (see also [37] above). 67There is no other evidence of Cerreto's character, but I accept the defendant's cooperation with, or assistance to, the prosecutor, in reaching agreement on changing the defendant, pleading guilty to both charges, and agreeing to the SOF. 68The defendant is entitled to a discount in each case for pleading guilty, but the percentages to be allowed are subject to dispute, and no percentage discount was specified by the sentencing magistrate (see Magdalene at [122] - [128], and [269] - [278]). 69Mr Clay submits (par 48) that "the penalty to be imposed" (singular) should be mitigated "significantly", and he goes on to submit, in the context of the "totality" principle, that "the two offences involve a single course of behaviour". I do not take that view, beyond noting that the defendant's disobedience resulted in an extension of the illegal building behaviour beyond mid-January well into February. 70In terms of consistency in sentencing there are many cases to compare on the building offence, but none I can find on the SWO offence. 71I have considered all the cases Mr Clay included in his submissions (par 52). Accepting that the objective seriousness approaches 10% ([65] above), and allowing a plea of guilty discount on the building charge of about 20%, I consider that the defendant was at least negligent, and probably reckless, in not following through on ensuring his works enjoyed consent. He took the risk, when the works were not so essential, and so must accept the consequences. The fine of $35,000 should certainly stand. 72The Magistrate's fine of $60,000 places the SWO offence in this case at a very low level of objective seriousness, and I think Her Honour's grading of it is quite conservative. 73Ignoring Council's SWO for a period of six weeks was rightly described by Mr Howard as "deliberate", "conscious", "flagrant", "direct" disobedience/defiance, and aggravated the amenity impacts of the works. A plea of guilty discount of no more than 10% would be appropriate, in the circumstances of that offence. 74Accordingly, I conclude that the fine of $60,000 on that charge should also stand. 75I do not consider that total fines of $95,000 for the appellant's behaviour in this matter offend the "totality" principle in any way ([58] above). Mr Clay suggested that a total fine of $40-60,000 would suffice, but I disagree. 76I agree with the learned sentencing Magistrate that the defendant has shown "an ongoing deliberate disregard of the law" (Tp4, LL5 - 6, at Exhibit A1, Tab D, fol 7 - [22] above). General deterrence and serious punishment are called for. If asked by the Council to increase the individual or total penalties imposed, I would have been inclined to do so, but the prosecutor did not appeal, and has not argued their inadequacy. 77Accordingly, this appeal must be dismissed, and the appellant should be ordered to pay Council's costs of it: Keir, at [24]ff. 78I also order that the appellant pay Council's costs thrown away in respect of the abandoned hearing on 23 June 2014.

Orders 79The Orders of the Court are: (1)The defendant's appeal is dismissed and the penalties imposed by the Local Court are confirmed. (2)The defendant is ordered to pay the Council's costs of the appeal, and its costs thrown away as a result of the adjournment of the hearing on 23 June 2014, to be agreed or assessed according to law. (3)The exhibits may all be returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 July 2014