Health Problems
8 On 22 June 2008 Mr Naklicki was involuntarily detained under the Mental Health Act at Westmead Hospital, when his estranged partner Flora Kortlepel had him admitted after he expressed suicidal thoughts. Ms Kortlepel also states that Mr Naklicki had "a breakdown" of some sort during a 1988 tax audit of his business, and renewed psychiatric problems in 1999.
9 The Westmead Discharge Summary annexed to Mr Naklicki's recent affidavit records his diagnosis on admission as "Bipolar Affective Disorder - Manic Episode". These proceedings were identified as a "current stressor". He reported that he had been diagnosed 15-20 years ago with "Bipolar Affective Disorder", but had not persevered with the prescribed medication. He reported also one earlier short hospital admission (to St John of God Hospital), but the actual year is not clear on the evidence (it was probably 1999). He described "episodes suggestive of milder depressive episodes and periods of mood elevation". He responded positively to a mood stabiliser and he was discharged on 30 July. He indicates in his affidavit that he now has more knowledge about his condition, its effects, and the need for treatment.
10 Mr Gough referred him to the Hills Clinic (Dr Ted Cassidy) for a forensic psychiatric assessment on 23 August 2008 (Exhibit D1). Dr Cassidy did not have the benefit of the Westmead discharge summary from which I have just quoted, but he diagnosed "Bipolar Disorder, currently presents (sic) with Hypomania on a background of recent mixed affective episode requiring an admission to hospital". He identified "Impulsive Personality Traits" and "Significant impairment and stress in relation to the matters before the court and also to his inability to manage his finances" or personal affairs. Dr Cassidy was concerned that Mr Naklicki was compliant with medication which was unsatisfactory for one with his problems, but non-compliant with other prescribed treatment which would have been beneficial. In summary, Dr Cassidy opines that Mr Naklicki has a mental illness that can be treated. I accept Dr Cassidy's evidence as indicative of Mr Naklicki's mental condition as at the date of his assessment, not beforehand.
The current proceedings
11 As a result of his hospitalisation, these proceedings were adjourned on 7 July till 14 July, then 11 August, then 28 August, when they were fixed for hearing on Wednesday 26 November.
12 On Wednesday the parties presented their evidence relevant to sentencing considerations, and to the need for remediation works, and the proceedings were eventually adjourned until today to enable (1) the experts to confer and hopefully agree upon a regime for remediation of the land, including the lake, both of which are contaminated with asbestos and possibly other pollutants, (2) the Defendant to seek up to date medical advice prior to sentencing, and (3) the legal representatives to have further negotiations about possible outcomes in these proceedings.
13 Thorough checking and remediation of the lake is crucial as it spills ultimately into Cattai Creek.
14 The Prosecutor and Mr Gough (on the Defendant's behalf) agreed on Wednesday, and informed the court, that an appropriate fine for the court to impose for this contempt would, in their shared opinion, be $30,000. The Defendant has also agreed to pay a total of $65,000 by way of Council's costs, and to undertake appropriate remediation works at his own expense.
15 Having considered all the evidence tendered that day, I urged the parties to give some thought, during their further negotiations, to the sentencing approach adopted by the then Chief Judge, Pearlman J, in Environment Protection Authority v Waight [2003] NSWLEC 124, at pars [14]-[20].
Sentencing considerations
16 The normal sentencing principles apply to contempt proceedings and many considerations are set out among the many relevant provisions in the Crimes (Sentencing Procedure) Act 1999.
The defendant himself
17 Mr Naklicki, now 62, was born in Germany or Poland. He came here at age 4. He is a man of sober, moderate habits, who had a good reputation in his chosen profession as a photographer, and he has no criminal or environmental record. He apparently had an unsuccessful marriage in his 20's, and a long term de facto relationship with Ms Kortlepel 1986-2001, with a reconciliation 2005-06. They were workmates and friends from 1980, and Ms Kortlepel and her family have stood by him during his recent health problems.
18 He has lived and worked in the Hills district since 1971. He sold his very successful photographic business in June 1998 (despite large taxation fines, apparently $80,000 in 1988 and $350,000 in 1992), apparently for about $4.5M, and has not worked in paid employment since. He had an unsuccessful art business venture (Inspiring Images Pty Ltd) for some time since 2000. He has lived off the capital from the 1998 business sale and some income from a small superannuation share portfolio, but his funds were exhausted by June 2008 and he has borrowed money from a relative.
19 Mr Naklicki bought the subject property for either $800,000 or $850,000 in 1998, and it is unencumbered, despite his spending $700,000-$1,000,000 on improvements since then. His vision for the property has been to develop it as "Kenthurst Inspiration Centre" to benefit the community, especially charities and children with life threatening diseases.
20 Dr Cassidy sees this Centre as a "grandiose" idea consistent with his condition, but Mr Naklicki received support and assistance in this endeavour from Mr Ralph Schubert, who has given him a character reference (Exhibit D3). Mr Naklicki has attached to his affidavit a vision statement, business plan and other documents regarding the proposed Centre, and the Foundation established to operate it, and Mr Schubert deposes that Inspiring Images Pty Ltd was intended to raise money for it.
21 Mr Schubert's reference attests to Mr Naklicki's enthusiasm, idealism, appreciation of fine art, and selfless concern for underprivileged and terminally ill children.
22 Mr Naklicki is resigned to having to dispose of the property to pay for the remediation works. He has obtained a market appraisal (cf a proper valuation) from L J Hooker Dural (Exhibit D2) indicating that in its present condition, and lacking appropriate consents, it might sell for about $800,000 but if "rectified" (as in remediated and enjoying the relevant approvals) it might sell for about $1.7M.
23 Section 21A(3)(j) requires the court to take into account as a mitigating factor the fact that the Defendant may not have been fully aware of the consequences of his actions by reason of age or disability. I accept the evidence of his history of mental problems since 1988 and of his refusal to take appropriate medication, but I have no basis upon which to find that he was not aware of the potential problems that could result from his use of uncertified fill on his land and in/near the lake. Nonetheless, I take into account the evidence before me of his current mental state and of the stress caused by these proceedings. See Regina v Fahda [1999] NSWCCA 267 (per Simpson J at [38]-[51]). His attitude would appear to have moved from defiance to contrition and compliance since his hospitalisation. It is to be hoped that Mr Naklicki takes better care of his mental health in the future.