Bay State Construction Pty Ltd v Woollahra Municipal Council

Land and Environment Court (NSW)|2020-06-16|Before: Preston CJ

Magistrate Crompton File Number(s): 2018/250264; 2018/245678 and 2018/249414

An appeal against sentence

Bay State Construction Pty Ltd (Bay State) was convicted by the Local Court for three offences of carrying out prohibited development on land contrary to s 4.3 of the Environmental Planning and Assessment Act 1979 (EPA Act) and sentenced to pay fines of $6,000 for the first offence in proceedings 2018/250264, $10,000 for the second offence in proceedings 2018/245678 and $20,000 for the third offence in proceedings 2018/249414 and the prosecutor's costs of the three proceedings in the sum of $8,000. Bay State has appealed against the severity of the sentences under s 31 of the Crimes (Appeal and Review) Act 2001 (CAR Act).

The offences committed

Bay State is a builder who, in 2017 to 2018, was carrying out a new residential development at 7 Loftus Road, Darling Point, pursuant to a development consent granted by Woollahra Municipal Council (the Council). Erection of the building required the use of an on-site tower crane. Bay State affixed to both sides of the shorter horizontal arm of the crane an illuminated sign stating "BAYSTATE". The sign remained affixed to the crane from the time of the crane's erection in August 2017 until the crane's removal in December 2018. The sign may not have been illuminated for the whole of this period. It was noticed by a neighbour to be illuminated in mid-December 2017 but no longer illuminated in mid-March 2018.
The neighbour, who lived in Darling Point Road, complained to the Council about the illuminated sign in December 2017. He said it "completely spoils" his night-time view across Sydney Harbour towards the Harbour Bridge and the Opera House.
The Council determined that the illuminated sign was prohibited development. The land on which the crane was erected was zoned R3 Medium Density Residential under Woollahra Local Environmental Plan 2014 (WLEP). The Council contended that both an advertisement and a business identification sign were prohibited in this zone. For an advertisement, there was an additional source of prohibition. Under cl 10(1) of State Environmental Planning Policy No 64 - Advertising and Signage, the display of an advertisement is prohibited on land that, under an environmental planning instrument, is within a zone or description of "residential (but not including a mixed residential business zone or similar zones)". The land on which the crane was erected was located in such a residential zone.
On 3 May 2018, the Council issued Bay State with a penalty infringement notice under s 9.58 of the EPA Act for the unauthorised business identification sign affixed to the crane. The date of the offence was identified as 3 January 2018. The amount of the penalty was $6,000.
On 25 May 2018, the Council issued Bay State with a second penalty infringement notice under s 9.58 of the EPA Act for the unauthorised business identification sign affixed to the crane. The date of the offence was identified as 14 May 2018. The amount of the penalty was $6,000.
On 14 August 2018, the Council commenced proceedings in the Local Court, by way of a court attendance notice, against Bay State for carrying out specified development, being advertisement on the crane, which was prohibited on the land. The date of the offence was identified as 5 July 2018.
After being served with the court attendance notice, Bay State elected to have the offences the subject of the two penalty infringement notices determined by the court. The Local Court therefore came to determine three proceedings for the three offences committed by Bay State in displaying the advertising sign on the crane.

The Local Court sentences

The Local Court (Magistrate Crompton), by judgment delivered on 4 October 2019, found that Bay State had committed, and convicted it for committing, each of the three offences. The Local Court fined Bay State $6,000 for the first offence committed on 3 January 2018, $10,000 for the second offence committed on 14 May 2018 and $20,000 for the third offence committed on 5 July 2018. The Local Court ordered Bay State to pay the Council's costs in the sum of $8,000.

Bay State's submissions that the sentences are too severe

Bay State submitted that the sentences imposed by the Local Court are individually and cumulatively excessive for four reasons.
First, Bay State's conduct in displaying the advertising sign on the crane was a single course of conduct committed over a period of time, rather than three distinct and unrelated transactions. Second, application of the totality principle justified a reduction in both the aggregate and the individual fines. Third, the aggregate of the fines was manifestly excessive. Fourth, the amount of each individual fine was not proportionate to the objective seriousness of the offence committed.
As a consequence, Bay State submitted that this Court would reduce the fines for each offence. I will elaborate on each of these submissions.
First, Bay State noted that its offending involved a single course of conduct. It had affixed to the crane and displayed the advertising sign stating its name "BAYSTATE". The advertising sign was affixed when the crane was erected in August 2017 and was removed when the crane was dismantled in December 2018. The illumination of the advertising sign was for a shorter period. On the evidence, the sign was observed to be illuminated in mid- December 2017 but was no longer illuminated by mid-March 2018. The illumination of the sign is not relevant to commission of the offence of carrying out the prohibited development of advertisement but it is relevant to the period of interference with the neighbour's amenity. The offending conduct of carrying out of the prohibited development of advertisement was a single course of conduct over a period of about 16 months.
The Council selected three days within this extended period, 3 January 2018, 14 May 2018 and 5 July 2018, and charged Bay State with committing the same offence of carrying out the prohibited development of advertisement on each of these three days.
Bay State noted that, notwithstanding the multiple counts charged, the actus reus of the three offences is made up of a continuation of the same underlying facts, being the continuous display of the unauthorised advertising sign.
Bay State submitted that "whatever the number of technically identifiable offences committed", it "was truly engaged upon one multi-faceted course of criminal conduct", citing Attorney General v Tichy (1982) 30 SASR 84 at 92-33. Bay State submitted that "where there is an interrelationship between the legal and factual elements of two or more offences with which an offender has been charged, care needs to be taken so that the offender is not punished twice (or more often) for what is essentially the same criminality": Royer v Western Australia [2009] WASCA 139 at [22].
Bay State submitted that the way to accommodate the complete overlap in the three offences is to impose a fine in the appropriate amount for the first offence but no fine for the second and third offences.
Alternatively, Bay State submitted that, having fixed the appropriate amount of the fine for the first offence, any additional amounts for the second and third offences should take account of the extra time that the advertising sign was displayed after the commission of the first offence. The first offence was committed on 3 January 2018. 131 days lapsed before the second offence was committed on 14 May 2018 and a further 52 days elapsed before the third offence was committed on 5 July 2018. Bay State submitted that the amount of the fines for the second and third offences should be based only on these periods of additional days that the offending conduct continued.
Bay State suggested what it termed a "1% rule of thumb" to calculate these amounts. Bay State noted that the maximum penalty per day for a continuing offence is exactly 1% of the maximum penalty for an offence. For example, the Tier 2 maximum monetary penalty for a corporation for an offence is $2,000,000 and, for a continuing offence, a further $20,000 for each day the offence continues: s 9.53(1)(a) of the EPA Act.
Bay State submitted that this suggests that for each day after the date of the first offence that the offending conduct continued up to the date of the second offence (131 days), and then from the date of the second offence to the date of the third offence (52 days), the penalty should be calculated as 1% of whatever amount is fixed as the appropriate amount of the fine for the first offence. This daily rate should be multiplied by the number of days (131 days and 52 days respectively) to determine the additional amount of fines that should be imposed for the second and third offences, over and above the amount of the fine for the first offence.
Secondly, Bay State submitted that the totality principle should be applied in sentencing it for the three offences. The effect of the totality principle is to require the court, which has indicated a series of sentences, each properly calculated in relation to the offence for which it would be imposed, to review the overall sentence that would result from aggregation of the sentences and consider whether the overall sentence is just and appropriate: Mill v The Queen (1988) 166 CLR 59 at 62. Where the overall sentence exceeds the overall criminality involved in all of the offences, a downwards adjustment is necessary, both in the aggregate sentence and in the individual sentences: R v Holder (1983) 3 NSWLR 245 at 260.
Bay State submitted that the aggregate of the fines imposed by the Local Court, $36,000, exceeds the overall criminality involved in the commission of the three offences. The offences related to only three of the days on which the single course of conduct of displaying the unauthorised advertising sign occurred. Each of the three offences committed on those days was relevantly the same. There was no more criminality involved in committing the offence over three days than on one day. The aggregate of the fines imposed by the Local Court for the three offences therefore exceeded the overall criminality involved in committing the offences.
Bay State also submitted that, in reviewing the totality of the sentences, the Court should take account not only of the aggregate of the fines ($36,000) but also the amount of costs ordered ($8,000). The costs were "an important aspect of the punishment" of Bay State: Environmental Protection Authority v Barnes [2006] NSWCCA 246 at [78].
Thirdly, Bay State submitted that "the result embodied in the order", the sentences imposed by the Local Court, is "unreasonable or plainly unjust", so that there is "manifest excess" in the result: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25].
Bay State noted that, although the maximum Tier 2 monetary penalty for a corporation is $2,000,000, offences against s 4.3 of the EPA Act for carrying out development that is prohibited cover a vast range of different kinds of offending. Displaying an advertising sign on a crane for a limited period of time is at the lower end of the spectrum of offending against s 4.3 of the EPA Act.
Bay State sought to gain some indication of what might be an appropriate monetary penalty for offending at the lower end of the spectrum from two sources. First, the penalty that can be imposed for a penalty notice issued under s 9.58 of the EPA Act for a corporation is $6,000: see cl 284 and Sch 5 of the Environmental Planning and Assessment Regulation 2000. Second, in the case of a contravention of cl 27A(1) of the State Environmental Planning Policy No 64 - Advertising and Signage, which prohibits the displaying of an advertisement on a trailer parked on a road without consent, the penalty that can be imposed in a penalty notice for a corporation is $3,000. Bay State submitted that displaying an unauthorised advertisement on a crane is analogous to displaying an unauthorised advertisement on a trailer parked on a road. Both of these penalties that can be imposed in a penalty notice issued under s 9.58 of the EPA Act provide a useful legislative indication of the lower level of culpability that is associated with offending of this kind (displaying unauthorised advertisements).
In making this submission, Bay State was not saying that the amount of the penalty that should be imposed by the Court for each offence should be the prescribed amount that can be imposed in a penalty notice. Bay State accepted that the Court's jurisdiction "is in no way limited to the fine limitations placed on infringement notices": Sutherland Shire Council v Upper Class Developments Pty Ltd [2003] NSWLEC 414 at [37]. Instead, Bay Sate's argument was that Parliament has given some legislative guidance as to the seriousness with which it views advertising and signage related offences.
Fourthly, Bay State submitted that careful evaluation of the objective seriousness of each offence reveals that the sentences imposed by the Local Court are not proportionate to that objective seriousness. Bay State referred to the factors relevant to the objective seriousness of an offence identified in Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34 at [163].
As to the maximum penalty for the offence, Bay State repeated its submissions summarised earlier that these offences are at the lower end of the spectrum of offending.
As to the objective harmfulness of the offences, Bay State accepted that the carrying out of prohibited development is objectively serious as it interferes with the integrity of the system of planning and development control: Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349; [2006] NSWLEC 47 at [72]. Nevertheless, carrying out some types of prohibited development is more serious that carrying out other types of prohibited development. The Court's task is to make findings about the seriousness of the particular offences of carrying out prohibited development in this case. Bay State submitted that displaying unauthorised advertising and signage on cranes is less serious than carrying out other types of prohibited development.
Bay State disputed the Council's assertion that the displaying of the particular advertisement on the crane involved significant harm for an extended period of 12 months. Bay State noted that there was only one complaint made, from the neighbour in Darling Point Road. His complaint was limited to the illumination of the sign at night, as it spoilt his harbour view. On that neighbour's evidence, this impact was limited to the period from mid-December 2017 (when he made the complaint to the Council) to mid-March 2018 (when he informed the Council that the illumination of the sign had been turned off). Only one of the offences occurred in this period, being the first offence which was committed on 3 January 2018. The second offence occurred on 14 May 2018 and the third offence occurred on 5 July 2018, both being after the neighbour advised the Council that the illumination of the sign at night had been turned off.
Although a Council officer asserted that the sign was illuminated on 14 May and 5 July 2018 when he visited the site, Bay State submitted that the Council had not proved beyond reasonable doubt that the illumination of the sign continued after the neighbour had advised that it had been turned off. The neighbour's evidence is the better evidence, not only because he had an interest in the illumination of the sign as it interfered with his harbour views but also because the Council officer's memory of those days was refreshed from looking at photographs which had been erroneously marked as having been taken on those days. The photographs of the later days were the same as a photograph of an earlier day. The Council did not prove which day each photograph was actually taken.
Bay State submitted that the mere display of the advertising sign on the crane, during daylight hours and when not illuminated at night, was not shown to have caused any impact on the neighbour's amenity or on the amenity of the locality generally.
As to the state of mind in committing the offences, Bay State submitted that the Council had not proved beyond reasonable doubt that the offences were committed intentionally, recklessly or negligently. The Council did not charge Bay State with having committed the offences intentionally. For the Tier 1 maximum monetary penalty to apply, the court attendance notice or application commencing the proceedings would have had to have alleged that the offence was committed intentionally and that the offence caused or was likely to cause significant harm to the environment or death or serious injury to a person: s 9.52(2) of the EPA Act. Here, the penalty notices and the court attendance notice did not allege that these factors applied to the commission of the offences by Bay State.
Bay State submitted that the Council had not proved that Bay State's commission of the offences was reckless or negligent. The position may be contrasted with that in Pesic v Sutherland Shire Council [2019] NSWLEC 38 where the offender was reckless in failing to obtain legal advice as to the lawfulness of his actions (at [30]). In the present case, after the Council had sent Bay State a letter before issuing the first penalty infringement notice, Bay State sought legal advice and responded to the Council with that legal advice that displaying the advertising sign on the crane was lawful. As events transpired, the legal advice that Bay State had received was incorrect. But that did not make Bay State's actions of allowing the advertising sign to remain, acting on that legal advice, either reckless or negligent.
As to the foreseeability of the risk of harm and the practical measures that could be taken to prevent or mitigate that risk of harm, Bay State reiterated that it did seek legal advice and that it acted on that advice. Bay State thought that it was complying with the law and planning system.
Bay State submitted that the Council had not established that there were any practical measures that Bay State could have taken to remove the sign, once the crane to which the sign was affixed had been erected. There was no evidence that the sign could be removed in situ without dismantling the crane itself. Bay State accepted that it could turn off the illumination of the sign, but on the neighbour's evidence, this was done in mid-March.
As to the reasons for commission of the offence, whilst Bay State accepted that the purpose of displaying any advertisement is for commercial gain, the Council had not proved beyond reasonable doubt that Bay State in fact received any financial gain by displaying this particular sign on this crane.
As to there being multiple offences, Bay State disputed the Council's assertion that its culpability increased for each offence. First, there was insufficient time between Bay State being served with each penalty infringement notice and the court attendance notice for it to adjust its behaviour. For example, only 11 days elapsed between the issue of the first penalty infringement notice on 3 May (notwithstanding that the date of the offence was 3 January 2018) and the issue of the second penalty infringement notice on 14 May. Second, Bay State was acting on legal advice that its conduct was lawful, notwithstanding that the Council evidently thought otherwise by issuing the penalty infringement notices. Third, the three offences related to one single course of conduct. Where the offending arises out of the same facts, punishment for later offences should reflect their incremental criminality as distinct from the criminality of the previous offences. In this case, the later offending ought to attract lesser penalties not higher penalties to reflect the criminality already punished by the earlier offences.
In conclusion, having regard to all of these considerations, Bay State submitted that the Court would impose fines for the three offences in an aggregate less than the amount of $36,000 imposed by the Local Court.

The Council's submissions that the sentences are appropriate

The Council submitted that the Court should conclude that no lesser punishment is warranted than that imposed by the Local Court. The Council noted that even the aggregate of the fines for the three offences imposed by the Local Court ($36,000) was still less than 2% of the maximum penalty that can be imposed for only one offence ($2,000,000). The Council responded to the four reasons advanced by Bay State for why Bay State submitted the sentences imposed by the Local Court were excessive.
As to the first two reasons concerning the course of conduct and totality principles, the Council submitted that, regardless of whether the Local Court did or did not take into account these principles, this Court can do so in resentencing Bay State for the offences.
As to the third reason, again, if this Court considers that the sentences are manifestly excessive, the Court can resentence Bay State. The Council submitted, however, that the sentences imposed by the Local Court were not manifestly excessive.
The Council submitted that the starting point for considering the appropriate penalty is the maximum monetary penalty prescribed for the offence committed by Bay State of $2,000,000. This serves as the sentencing yardstick, not the prescribed penalty for the issuance of a penalty infringement notice of $6,000. The Council noted that once Bay State elected to have the matter dealt with by the Local Court, the relevant penalty became the maximum penalty for the offence not the prescribed penalty for the penalty infringement notice: Sutherland Shire Council v Upper Class Developments Pty Ltd at [37].
The Council submitted that the penalty regime for offences under the State Environment Planning Policy No 64 - Advertising and Signage is similarly of no relevance. The offence of displaying an advertisement on a trailer parked on a road is a different offence to the offences committed by Bay State of carrying out prohibited development contrary to s 4.3 of the EPA Act.
As to the fourth reason, the Council submitted that the aggregate of the fines imposed for the three offences was appropriate and proportionate to the objective seriousness of the offences. The Council noted that Bay State did not lead before the Local Court, or in this Court, any evidence in respect of the subjective circumstances of Bay State.
The Council noted that the commission of the offences, involving the carrying out of prohibited development, caused harm to the integrity of the planning system in NSW. The Council submitted that the commission of the offences also caused actual environmental harm. The extent of harm caused by the commission of an offence can increase the objective seriousness of the offence: Environmental Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299; [2006] NSWLEC 419 at [145]-[147].
The Council noted that the illuminated advertising sign affixed to the crane impacted on the "iconic Sydney Harbour views (including Harbour Bridge and Opera House)" enjoyed by the complainant who resided in Darling Point Road. The Council submitted that this impact extended for at least 12 months from approximately 19 December 2017 to approximately 21 December 2018. The Council submitted that "given the iconic nature of the view enjoyed from the complainant's property and the extended period of time that prohibited development remained at the site, the development resulted in significant harm".
The Council noted that the offences are ones of strict liability, which if committed intentionally, negligently or recklessly, will be objectively more serious than one committed accidentally: Director General, Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 at [42]-[43]. The Council did not expressly contend that Bay State did commit the offences intentionally, negligently or recklessly, but it did contend that Bay State's state of mind in committing the offences showed that its actions "were high in culpability". The Council submitted that it had warned Bay State that its behaviour was unlawful, including in its letters to Bay State both before and on issuing the penalty infringement notices, and gave Bay State an opportunity to address the offending behaviour. Bay State did not do so. Bay State failed to take any reasonable measures (such as turning off the illumination of the sign) to address the concerns raised by the Council.
The Council submitted that Bay State could reasonably have foreseen the risk of harm to the environment caused by the commission of the offences. The Council submitted that Bay State "must have, or at least reasonably should have, been aware of the nature of the views to be impacted" by the illuminated advertising sign on the crane. Bay State could also have foreseen the risk of harm to the integrity of the planning system by carrying out prohibited development.
The Council submitted that there were practical measures to avoid the foreseeable risk of harm. Bay State could and should have made enquiries of the Council as to the permissibility of displaying the advertising sign on the crane.
The Council submitted that the reason for the commission of the offences was to advertise the name of Bay State for commercial gain, at the site which was at the time under construction by Bay State.
The Council submitted that, taking these factors into account, Bay State's culpability is at the high end of the low range of culpability for all three offences. The Council submitted that the culpability of Bay State increased for each of the offences as it was, or reasonably should have been, aware of the prohibition on displaying the advertising sign but elected to proceed with the development irrespective of the prohibition.
The Council submitted that, having regard to these considerations, the Court would not come to different sentences for the offences than those imposed by the Local Court.

The appropriate sentences

The appeal has been dealt with by way of rehearing on the basis of the evidence given in the Local Court proceedings. The Court is not restricted to a determination of whether the sentences imposed by the Local Court were infected with error or were manifestly excessive, but rather the Court is to redetermine the appropriate sentence for each offence.
I will start with determining the appropriate sentence for each offence. The sentence should reflect and be proportionate to both the circumstances of the offences committed by Bay State and the personal or subjective circumstances of Bay State as the offender. As there are three offences, the totality principle needs to be applied. The overall sentence that would result from aggregation of the individual sentences needs to be reviewed to consider whether the overall sentence is just and appropriate. If the overall sentence exceeds the overall criminality involved in commission of the offences, the individual sentences will need to be adjusted.
Although s 4.3 of the EPA Act specifies Tier 1 as the maximum monetary penalty for an offence against s 4.3, a Tier 1 maximum monetary penalty only applies if the prosecution has alleged in the court attendance notice or application commencing the proceedings the factors in s 9.52(2) of the EPA Act. If this is not done, so that a Tier 1 maximum monetary penalty does not apply, then a Tier 2 maximum penalty applies instead: s 9.52(3) of the EPA Act.
The Tier 2 maximum monetary penalty for an offence committed by a corporation is $2,000,000: s 9.53(1)(a)(i) of the EPA Act. If the offence is a continuing offence, the offender is liable for a further $20,000 for each day the offence continues: s 9.53(1)(a)(ii). The Council, did not, however, allege a continuing offence or seek a further penalty for a continuing offence. The limit of the Local Court's jurisdiction is $110,000 for each offence: s 9.57(3) of the EPA Act.
The maximum penalty (not the Court's jurisdictional limit) reflects the Parliament's view of the seriousness of the offence. It provides a sentencing yardstick against which the offence committed by Bay State can be compared: Markarian v The Queen at [31]. A yardstick is an instrument of measurement. The maximum penalty for an offence is used to measure the relevant features of a particular instance of an offence against the worst case: R v Campbell [2014] NSWCCA 102 at [28].
The prescribed penalty for issuing a penalty notice under s 9.58 of the EPA Act, whether for an offence against s 4.3 of the EPA Act (of $6,000 for a corporation) or cl 27A(1) of the State Environmental Planning Policy No 64 - Advertising and Signage (of $3,000 for a corporation) are not yardsticks against which the offences committed by Bay State should be compared. The amount of the penalty that is prescribed for a penalty notice is determined having regard to different considerations to those used to determine the maximum monetary penalty for an offence. The prescribed penalty for a penalty notice that may be issued for an offence is not an indication of the penalty that should be imposed for that offence if the person to whom the penalty notice has been issued elects to have the matter dealt with by the court.
The task of the Court in sentencing Bay State, therefore, is to measure the seriousness of its offending against the worst case represented by the maximum monetary penalty for that offence.
The objective harmfulness of Bay State's commission of the offences is relevant to determining the seriousness of the offences. The mere commission of the offence of carrying out prohibited development did interfere with the integrity of the system of planning and development control. However, the degree of interference in this case is minor. A sign stating the name of the builder who was constructing the approved residential development on the site was affixed to an on-site tower crane being lawfully used to carry out that development. That sign was found by the Local Court to be an advertisement or business identification sign, both of which were prohibited on land in the relevant residential zone. That unlawful development was minor in the context of the otherwise lawful development being carried out on the land.
The real impact resulted from the illumination of the sign. The sign was in the sight line of a neighbour looking over Sydney Harbour towards the Harbour Bridge and the Opera House. The neighbour complained that the sign, when illuminated at night, interfered with his night-time view of Sydney Harbour. The neighbour did not complain about the crane itself interfering with his views of Sydney Harbour, either during the day or at night. This interference with the neighbour's night-time view of Sydney Harbour did constitute harm. Nevertheless, on the evidence, the harm was confined to only one person (there was no evidence of any other person complaining or being affected by the sign), a limited time of each day (the night-time hours after dusk and before the neighbour went to sleep) and for a limited period of time (the sign was illuminated for around three months from mid-December to mid-March).
This harm caused by the illumination of the sign was established only for the first offence, which was committed on 3 January 2018. The second and third offences on 14 May and 5 July 2018 occurred after the neighbour advised the Council, on 11 March 2018, that the sign was no longer illuminated.
In these circumstances, the environmental harm caused by the commission of all of the offences was low, but even lower for the second and third offences than for the first offence.
The Council has not proved beyond reasonable doubt that Bay State committed the offences with any heightened state of mind. The Council did not allege in the penalty infringement notices or the court attendance notice that Bay State committed the offences intentionally. The Council did not prove that Bay State committed the offences recklessly or negligently. True, the Council did notify Bay State that it considered that displaying the advertising sign was prohibited development and the Council issued two penalty infringement notices and the court attendance notice alleging that Bay State was committing an offence by doing so. However, Bay State acted reasonably in seeking legal advice as to whether the Council's position was legally correct. The legal advice that Bay State received was that the Council was incorrect. Bay State acted on the legal advice it had received and left the sign on the crane. As events transpired, the legal advice proved to be incorrect but this did not mean that Bay State acted recklessly or negligently in relying on the legal advice.
The possibility that displaying an unauthorised illuminated sign on the crane might interfere with a neighbour's night-time view was reasonably foreseeable. A practical measure to prevent or minimise any such interference would be not to affix the sign to the crane in the first place and to turn off illumination of the sign if it had been affixed to the crane. Bay State affixed the illuminated sign and kept it in position in the belief that it was lawful to do so. Bay State turned off the illumination of the sign by mid-March. In these circumstances, the foreseeability of the risk of harm and availability of practical measures to reduce this risk do not add materially to the objective seriousness of the offences.
The Council has not proved beyond reasonable doubt that Bay State gained financially by committing the offences. No doubt Bay State thought that advertising its name as a builder on the crane whilst it was building the residential development might promote its business, but no financial gain has been proven to have been received by Bay State in doing so.
Having regard to the nature and circumstances of each offence committed by Bay State, the maximum penalty for the offence, the low harm caused by the commission of the offences, the commission of the offences without any proven heightened state of mind, the small degree of foreseeability of risk of harm and practical measures to reduce that risk, and no proven financial gain, I find that each offence is of low objective seriousness.
The offences, being three incidents in a continuing course of conduct of displaying an unauthorised advertising sign, mostly have the same factual elements. The differences between the offences are essentially twofold. The first difference is in the length of time that the conduct involved in each offence - the displaying of the advertisement - extended. The advertisement had been displayed for around five months by the time of the first offence, nine months by the time of the second offence and 11 months by the time of the third offence. There was, however, overlap in this conduct. The incremental period of further display of the advertisement was around four months between the first and second offences and two months between the second and third offences.
In order to avoid punishment for this overlap, the sentence for the first offence should focus on the initial period of the display of the advertisement up to the date of the first offence (5 months), the sentence for the second offence should focus on the incremental period between the first and second offences (4 months), and the sentence for the third offence should focus on the incremental period between the second and third offences (2 months). Whilst it can generally be said that the longer the period of time in which an offence continues the more serious the offence will be, there is not a directly proportionate relationship between the length of time of the offending and the seriousness of the offence. For example, the second offence is not twice as serious as the third offence merely because the period of offending is twice as long (4 months compared to 2 months).
The second difference is the harm caused by the offences. The harm caused by the first offence was greater than the harm caused by the second and third offences because the advertising sign was illuminated at the time of the first offence but was no longer illuminated by the time of the second and third offences.
These differences between the offences results in different relative objective seriousness, although all remain as being of low objective seriousness. The first offence is more serious because of the longer time the advertisement was displayed and the greater harm caused by the sign being illuminated, than the second and third offences.
Bay State did not advance any evidence or submissions of mitigating factors under s 21A(3) of the Crimes (Sentencing Procedure) Act 1999.
Considered individually, I consider the appropriate fines for the offences to be $30,000 for the first offence, $18,000 for the second offence and $12,000 for the third offence.
Because there multiple offences, relating to a single course of conduct, the totality principle is applicable. The aggregate of the individual sentences, each properly calculated in relation to the offence for which it was imposed, needs to be reviewed to consider whether the aggregate is just and appropriate and reflects the total criminality before the Court. If the overall sentence exceeds the overall criminality, an adjustment of the individual sentences should be made. For fines, this can be done by reducing the amounts of the fines for one or more of the offences.
In this case, I consider the aggregate of the individual fines (which would be $60,000) does exceed what is just and appropriate and the total criminality involved in the commission of the offences. Each offence relates to one day during an extended period of time in which the advertising sign was displayed. The displaying of the advertising sign on the crane was one continuous course of conduct. Except for the turning off of the illumination in mid-March, there was no other relevant change in the conduct of displaying the advertising sign through the period that the sign was displayed. It is appropriate to adjust the sentences to reflect the considerable degree of overlap between the offences. The overlap is not total. The second and third offences did involve further periods of displaying the advertisement. Some penalty should be imposed for that offending conduct.
I consider that, in total, a just and appropriate sentence is a fine of $36,000. This should be distributed to be $26,000 for the first offence, $6,000 for the second offence and $4,000 for the third offence.
Another consideration to take into account in reviewing the aggregate sentence is any costs order made by the Local Court or that might be made by this Court. An order for legal costs is part of the overall punishment of the offender: Environment Protection Authority v Barnes at [78], [88] and Harris v Harrison (2014) 86 NSWLR 422; [2014] NSWCCA 314 at [100]. In this case, the Local Court ordered Bay State to pay the Council's costs in the sum of $8,000. I have taken this associated cost order into account in assessing both the unadjusted and the adjusted aggregate and individual fines for the offences committed by Bay State.

Costs

Bay State sought an order that, if it was successful in its appeal against severity, the Council pay Bay State's costs of the appeal and of the proceedings in the Local Court.
The Council contested both of these costs orders. The Council submitted that, although pursuant to s 49(4) of the CAR Act, the Court can make such orders as to costs to be paid by either party, including the prosecutor, as it thinks fit, the exercise of the costs discretion is subject to s 70 of the CAR Act which limits the circumstances in which costs may be awarded against a public prosecutor. The Council submitted that given Bay State's acceptance of convictions for the offences, the costs ordered in favour of the Council by the Local Court should not be disturbed.
I consider that a costs order should not be made with respect to the costs of the appeal. I have determined that the aggregate of the fines imposed by the Local Court was an appropriate penalty for the offences committed by Bay State, although the distribution of the amounts of the fines between the offences should be different to what the Local Court found. In this event, Bay State has not been successful in establishing that the overall penalty imposed by the Local Court was too severe. A costs order in its favour is not warranted.
On the other hand, a costs order in favour of the Council is also not warranted. Bay State has been successful in establishing that the individual sentences imposed by the Local Court did not appropriately address the objective circumstances of each offence, the fact that each offence was part of a single course of conduct, or the totality principle. The individual sentences need to be adjusted to take account of these matters.
I also consider that it would not be just to make an additional order for costs of the appeal against Bay State. Although an order for costs is compensatory for the party in whose favour the costs order is made, and not punitive against the party ordered to pay costs, the effect of making an order for costs of the appeal in favour of the Council would be to add an additional monetary amount to the overall punishment of Bay State for the offences. In circumstances where Bay State has had some success in relation to the amounts of the individual fines, although not in relation to the aggregate of the fines, I do not consider that ordering Bay State to pay the Council's costs would be just.
In the events that have happened, there is no justification for disturbing the order for costs made by the Local Court. An order for costs in favour of the Council as the successful prosecutor in the Local Court was appropriate. Bay State did not pursue its appeal against conviction. The costs order made by the Local Court should therefore stand.

Orders

The Court orders: 1. The appeals are allowed. 2. The fines imposed on Bay State Construction Pty Ltd by the Local Court on 4 October 2019 in proceedings 2018/250264 of $6,000, 2018/245678 of $10,000 and 2018/249414 of $20,000 are set aside. 3. Instead of those fines, Bay State Construction Pty Ltd is fined as follows: 1. $26,000 for the offence committed on 3 January 2018; 2. $6,000 for the offence committed on 14 May 2018; 3. $4,000 for the offence committed on 5 July 2018.

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: 13 July 2020

(2006) 145 LGERA 234

(2006) 146 LGERA 349

(2009) 168 LGERA 121

(2006) 148 LGERA 299

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