Blacktown City Council v Everson

Land and Environment Court (NSW)|2018-01-31|Before: Molesworth AJ

TABLE OF CONTENTS Consideration and determination Overview - the consent orders and the contempt Sentencing principles in contempt proceedings Relevant evidence The Respondent's evidence The Council's evidence Consideration Seriousness of contempt Reason for the contempt Apology or public expression of contrition Character and antecedents General deterrence Personal deterrence Plea of guilty Penalty Whether a custodial sentence or fine should be imposed? Capacity to pay a fine Sentence Costs Orders Annexure A JUDGMENT

Overview - the consent orders and the contempt

The Respondent, Mr Ronald Everson, is the owner and occupier of a block of residential land at 15 Tangaloa Crescent, Lethbridge Park (the Premises). The Premises falls within the Blacktown local government area and its use is consequently governed by the Blacktown Local Environment Plan 2015 (BLEP 2015). Since approximately February 2012, the Premises has been the site of an accumulation of material, including (but not limited to) scrap metal, plastic, timber, e-waste, furniture, and car parts (scrap).
Blacktown City Council (the Council) considers that such a use of the Premises is prohibited under the BLEP 2015, and is therefore in contravention of (the then) s 76B (now s 4.3) of the Environmental Planning and Assessment Act 1979 (EPA Act). On 4 September 2013, the Council sent a letter of demand to the Respondent to remove the material from the Premises and to cease using the Premises for the purposes of the collection, storage, or abandonment of material.

Sentencing principles in contempt proceedings

The principles of sentencing in contempt proceedings in this Court are well established. Senior counsel for the Council set out those principles at [7] in his submissions, wherein he stated that, in contempt proceedings, the Court will normally apply the provisions of the Crimes (Sentencing Procedure) Act 1999 (Sentencing Procedure Act) as a guide to sentencing and, in particular, s 3A, setting out the purposes of sentencing, and ss 21, 21A and 22 (see Council of the City of Sydney v SP 18820 [2017] NSWLEC 81 at [46] per Robson J).
Counsel for the Respondent, at [5] in his submissions, adopted the Council's submissions with respect to the applicable sentencing principles.
Contempt can be characterised as technical, wilful, or contumacious. Technical contempt is where breach of the court order is casual, accidental, or unintentional. The Respondent's counsel conceded that the Respondent's contempt is more than technical (Respondent's submissions, [6]). Wilful contempt is where there is deliberate disobedience (that is, the disobedience is not casual, accidental, or unintentional) but without the intention of defying the Court's authority. Contumacious contempt is where there is a deliberate intent to defy the Court's authority. The Respondent's counsel argued that the Respondent's contempt is not at a high enough level to be classified as contumacious. The Council firmly submitted the contrary.
At [13] of the Council's submissions, their assessment was expressed as follows: However, the Respondent's conduct, in continuing to fail to comply with the consent orders, suggests that the contempt is very serious indeed and constitutes a contumacious disregard of the orders and of the authority of the Court. The breach can now properly be described as repeated, sustained and flagrant. The Respondent has been given repeated indulgences by the Court coupled with detailed explanations as to the seriousness of the orders and of the consequences which may flow from continuing breaches of them. He has had the benefit of able pro bono assistance and advice from Dr O'Shea. Yet, he continues in breach.
In Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309, at 314, Kirby J said: A conviction of contempt of court is a conviction of an offence, criminal in nature. Punishment of the convicted contemnor must therefore take into account the considerations normally applicable to the punishment of crime and apt to uphold the purpose of this jurisdiction, viz, the undisturbed and orderly administration of justice in the courts according to law. Thus, in determining the punishment which is apt to the circumstances which have led to a conviction of contempt, it is appropriate to bear in mind the purposes of punishing the contemnor; deterring the contemnor and others in the future from committing like contempt; and denouncing the conduct concerned in an approximately emphatic way :.. See also NCR Australia Pty Ltd v Credit Connection Pty Ltd [2005] NSWSC 1118 at [24] and [25]; [94] and [97]; Environment Protection Authority v Pannowitz (No 2) 153 LGERA 126; [2006] NSWLEC 797 at [20], [23], [24] and [28].
In Wood v Staunton (No 5) (1996) 86 A Crim R 183, at [185], Dunford J set out the following 10 factors for the Court to consider in sentencing for contempt. Those matters were also set out in Burwood Council v Ruan [2008] NSWLEC 167 at [18] and are as follows: 1. the seriousness of the contempt proved; 2. whether the contemnor was aware of the consequences to himself of what he did; 3. the actual consequences of the contempt on the relevant trial or inquiry; 4. whether the contempt was committed in the context of serious crime; 5. the reason for the contempt; 6. whether the contemnor has received any benefit by indicating an intention to give evidence; 7. whether there has been any apology or public expression of contrition; 8. the character and antecedents of the contemnor; 9. general and personal deterrence; and 10. denunciation of the contempt.
Of the 10 factors identified by Dunford J, the Council submitted that the following are of particular relevance in these proceedings: 1. the seriousness of the contempt proved; 2. whether the contemnor was aware of the consequences to himself of what he did; 3. the reason for the contempt; 4. whether there has been any apology or public expression of contrition; 5. character and antecedents of the contemnor; 6. general and personal deterrence; and 7. denunciation of the contempt.
These factors have been referred to and applied by this Court on many occasions, for example, in Owners Strata Plan 37762 v Pham (No 2) [2007] NSWLEC 306 at [20]; Waverley Council v Tovir Investments Pty Ltd & Rappaport (No 4) [2013] NSWLEC 88 at [17]-[19]; and Hutley v Cosco [2016] NSWLEC 15 at [32]; Georges River Council v Mifsud [2017] NSWLEC 113 at [23]; and the aforementioned Burwood Council v Ruan [2008] NSWLEC 167 at [18]
The application of the Sentencing Procedure Act in cases of civil contempt has been the subject of judicial discussion, however, as Robson J noted in Canterbury City Council v Ali Ahmed [2016] NSWLEC 160 at [19], the Sentencing Procedure Act has been applied to civil contempt proceedings both generally and by analogy, and provides at least guidelines to the Court when it is considering civil contempt.
Section 3A of the Sentencing Procedure Act sets out the purposes of sentencing: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.
Section 21A of the Sentencing Procedure Act sets out aggravating and mitigating factors that are to be taken into account when sentencing, relevantly: (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: … (b) the offence involved the actual or threatened use of violence, (c) the offence involved the actual or threatened use of a weapon, … (i) the offence was committed without regard for public safety, … (o) the offence was committed for financial gain, … (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, (b) the offence was not part of a planned or organised criminal activity, … (e) the offender does not have any record (or any significant record) of previous convictions, … (i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), … (k) a plea of guilty by the offender (as provided by section 22 or Division 1A),
Section 21A also notes that the Court is to take into account any other objective or subjective factors that affect the relative seriousness of the offence. It is accepted by the Court that the Respondent is an elderly and recurrently ill man. At times, the Court had concerns that the Respondent might also not be cognitively alert to the ramifications of his actions. These are all subjective matters that go to sentence.
As is foreshadowed in ss 21A and 22, the Sentencing Procedure Act provides that, in passing sentence, a court must take into account a plea of guilty, its timing, and the circumstances around that plea. The Respondent did not plead guilty early. He was advised by myself in the capacity of the List Judge, on 4 August 2017, of the ramifications of being found guilty of contempt. He was strongly advised to seek legal advice. At the scheduled commencement of the hearing on 10 October 2017, he submitted no plea, but this was understandable given this was the first day he had met his pro bono counsel. A week later, on 17 October 2017, the rescheduled day for hearing, he submitted no plea, but was now assisted by pro bono counsel. Finally, on 5 December 2017, a plea of guilty was entered.
There are clearly a number of areas in which the matters identified as relevant to sentencing in Wood v Staunton and those set out in the Sentencing Procedure Act overlap. These are, where relevant, considered below.
Finally, s 6 of the Fines Act 1996 (Fines Act) requires, in the exercise of a discretion to fix the amount of any fine, the Court to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount.
With respect to the Sentencing Procedure Act, the Respondent submitted that the approach the Court should adopt is as follows:

Section 22 - the Respondent pleaded guilty when he was last before the Court on 5 December 2017, negating a full hearing of the proceedings having to be undertaken;
Section 21A(2) - the only pertinent aggravating factors to be taken into account in determining an appropriate sentence are pursuant to s 21A(2)(d), that the Respondent has a prior criminal conviction for an unrelated offence at least 25 years prior; and
Section 21A(3) - the mitigating factors to be considered are that the injury, loss or damage caused by the offence was not substantial, it was not part of a planned criminal activity, and the Respondent has expressed his remorse and has entered a plea of guilty.

The Respondent's evidence

Although the Respondent's counsel relied solely upon the Respondent's affidavits sworn on 13 October 2017 and 20 December 2017 in his submissions, the Respondent tendered the following affidavits over the course of the contempt proceedings: 1. dated 9 October 2017, setting out the circumstances leading to the Respondent's non-compliance with the Consent Orders, medical problems of the Respondent's, and steps taken including organising council clean-ups, and arranging for a Mr Edmund Norman of Norman's Scrap Metals to provide a skip bin to take scrap metal away from the Premises; 2. dated 13 October 2017, noting medical issues of the Respondent's, the Respondent's financial circumstances, and certain steps taken by the Respondent to have the scrap materials and goods removed from the Premises. Relevantly, this affidavit at [12] contained the statement, "Neither myself nor my Son (sic) carry on any business on the Land. That is, no commercial activity is undertaken on the Land"; 3. dated 17 October 2017, dealing with steps taken to clear the Premises of the scrap material and goods, including photographs of the Premises; and 4. dated 20 December 2017, detailing the Respondent's financial position and noting certain steps taken, or to be taken, to clear the Premises.
The Respondent also gave oral evidence at the sentencing hearing. During the course of cross-examination, the Respondent conceded that he and his son have, since at least 2012 (Transcript 20.37-38), collected unwanted material, stored that material at the Premises and have, at the Premises, extracted scrap metal for sale.

The Council's evidence

The Council relied on a number of affidavits, six of which (dated 31 October 2016, 20 July 2017, 21 July 2017, 5 December 2017, and two dated 31 January 2018) were from Mr Jason Roberts, a Development Control Officer with the Council.
Mr Roberts also gave oral evidence at the sentencing hearing, which I will discuss, where relevant, below.
Following an initial affidavit of 21 July 2017 sworn by the Council's solicitor, Mr David Baird, a further affidavit by Mr Baird dated 18 January 2018 was relied upon by the Council. These two affidavits detailed the history of the contempt proceedings.
The Council also relied upon an affidavit, dated 10 October 2017 from Mr Roderick Duncombe, a process server engaged by the Council to serve documents on the Respondent on 4, 5 and 6 October 2017. This affidavit is noteworthy, demonstrating as it does the extent of difficulty Mr Duncombe experienced in effecting service on the Respondent. The Court is satisfied that, on the first two occasions, the Respondent was uncooperative, offensive and, on 5 October 2017, physically threatening to the process server. There was no mention of the Respondent being present on the occasion of the third visit to the Premises.

Seriousness of contempt

Every breach of a court order is a serious matter.
The Council argued that the contempt in this matter is so serious that it amounts to contumacious disregard of the Consent Orders and the authority of the Court. It noted that, despite the opportunities afforded to the Respondent by the Court to comply with the Consent Orders, he has not done so.
The Court was reminded by Mr Baird, in his affidavit of 18 January 2017, that, as early as 4 August 2017, in the course of a directions hearing, the Court gave the Respondent unambiguous warning of the seriousness of contempt. In Annexure B to that affidavit was a letter from the Council's solicitor sent to the Respondent. In the third paragraph of that letter was set out an account, which the Court considers accurate, of the Court's warning given to the Respondent in person: You will recall that Justice Molesworth made comment to you about the seriousness of the charges made by the Council. Justice Molesworth informed you that the Land and Environment Court takes very seriously any breach of orders made by it and that with respect to the matter before the Court presently alleging that you are in contempt of Court the Land and Environment Court has the power to impose a sentence of imprisonment. In those circumstances Justice Molesworth urged you to complete the clean-up of your land so as to comply with the orders made by the Land and Environment Court on 9 December 2016.
The Respondent's counsel submitted evidence that the Respondent suffers from a number of health problems which have contributed to the delay in carrying out the Consent Orders. Whereas in the first half of 2017 the Respondent's health difficulties may be accepted as a cause for tardiness in complying, the Court has concluded that the Respondent was in fact 'dragging out' the clean-up of the Premises so as to ensure, in the most opportunistic fashion he could arrange, he raised funds from the sale of the scrap metal he had accumulated The Court considers the capacity of the Respondent to clean up the Premises was not limited to himself, but clearly could have been facilitated by adult children of whom mention was made at various points in the evidence. This is particularly so given the Respondent's son lived at the Premises and was clearly involved in the collection of the scrap.
The Respondent's counsel submitted that the Respondent's behaviour can be characterised as wilful rather than contumacious, as he did not reveal a specific intent to defy the authority of the Court. Instead, since the July 2017 filing of the Statement of Charge, the Respondent has made attempts, though clearly inadequate, to comply with the Consent Orders of 9 December 2016.
Further, it was submitted for the Respondent that there was no evidence put by the Council to indicate that the state of the Premises had deteriorated beyond what it was on 9 December 2016, that is, there is no evidence that additional materials have been brought to the Land since that date. The Respondent's counsel submitted that, considering the age (74 years), health and impecunious financial position of the Respondent pensioner, that he has been able to achieve some modest improvement in the Premises, even though recognising that he has been over-optimistic as to the timetable in which that could be achieved, does not take the contempt to a level to characterise it as contumacious.
On the other hand, the Council submitted that, in spite of the further extensions of time granted by the Court in the orders dated 17 October 2017 to comply with the Consent Orders, the Respondent remains in serious breach of the orders. The Council submitted that no further indulgences should be granted to the Respondent.
The Council submitted that at the time these contempt proceedings were commenced in July 2017 and when the Respondent appeared in response to the Motion, on 4 August 2017 and again on 3 October 2017, the Council characterised the contempt as wilful and deliberate. This characterisation was in accordance with Council of the City of Sydney v SP 18820 [2017] NSWLEC 81 at [38] per Robson J and Fairfield City Council v Adams (No 2) [2010] NSWLEC 45 at [13]-[14].
The Council persuasively submitted, at [16]-[21] of their written submissions, that the breach of the Consent Orders should be treated as very serious for the following reasons. First, it is well established in this Court that breaches of the Environmental Planning and Assessment Act 1979 (EPA Act) are serious matters. That much is made clear by the very substantial penalties enacted where persons are prosecuted for offences against that Act. The community expects that the planning law will be consistently and fairly applied so as to ensure that there is, in effect, a level playing field and that the law applies equally to all and is seen to apply equally to all. Failure to ensure that the law is evenly and fairly applied gives rise to a sense of unease and injustice in the community. Secondly, the Respondent's breaches of the planning law now extends back many years to at least 2012. (See the affidavit of Jason Roberts sworn 31 October 2016 at [6]-[44]). Over that period, the Council has continuously pursued the Respondent to remedy his unlawful conduct without success. Thirdly, the Respondent's use of the land for collection of scrap materials is prohibited under the Blacktown Local Environmental Plan 2015 (BLEP 2015). It is not a use capable of obtaining consent or approval. Fourthly, the Respondent's unlawful use extends over the whole of the curtilage of the land. It plainly causes environmental harm by creating an eyesore in an otherwise orderly residential area. The accumulation of large quantities of waste and scrap materials provides a habitat for vermin. Fifthly, despite the Respondent's denials of commercial use, the Court should be satisfied on the evidence that the Respondent has derived income from his sale of scrap metal and has therefore profited (whether or not modestly) from his breaches of the planning law. Sixthly, the Respondent has given repeated assurances to the Council and the Court that he will have the material removed. Whilst there may have been some reasons for the delay in complying in the period from December 2016 to July 2017 due to ill health, the Respondent has continued to breach the orders with no obvious end in sight. In his affidavit of 13 October 2017, the Respondent assured the Court that with the assistance of daughter and son-in-law, he would have the land cleared so as to be fully compliant with the orders by 30 November 2017. (See Respondent's affidavit of 13 October 2017 [13]-[18]). He failed to do so but has provided no explanation for that failure.
In the circumstances, the Court accepts the foregoing submissions as an accurate assessment of the Respondent's conduct.

Reason for the contempt

Although, in his 13 October 2017 affidavit, the Respondent claimed that no commercial activity is undertaken on the Premises, his evidence in cross‑examination contradicted this. It is clear that the Respondent profits from the sale of scrap material that is stored on the Premises. The Court is satisfied that the Respondent had an ulterior motive to prolong the clean-up of the Premises for as long as he could, so as to maximise his opportunity to profit from his illegal conduct.

Apology or public expression of contrition

The Respondent expressed an apology in his affidavits of 9 October 2017 and 20 December 2017. The Council, however, considered that the sincerity of such expressions of remorse ought to be read in light of the Respondent's subsequent conduct, particularly his continued failure to comply with the Consent Orders. The Court agrees.
The Respondent's attitude towards the Council's officer, Mr Roberts, during his inspection of the Premises and towards the Council's process server while serving documents relating to the proceedings has been aggressive and uncooperative (see affidavit of Jason Roberts, 5 December 2017, at [7]-[10], and affidavit of Robert Duncombe, 10 October 2017, at [6]-[10]). The experience of Mr Duncombe is revealing, in the Court's opinion.
The affidavit of Mr Duncombe dated 10 October 2017, at [4], [6] and [10], contains evidence of the Respondent's attitude and conduct which was contemporaneous with at least one of his alleged expressions of remorse. Given the potentially frightening context within which Mr Duncombe heard and reacted to the Respondent, the Court accepts his evidence. Whilst trying to serve court documents on the Respondent, to hear statements such as: I'm not taking them. Those Campbelltown lawyers can get f… and so can the council. I've done what I have to do, they can all piss off" (4 October 2017). [emphasis added] And then: F… off. I don't want them. I have already received them in the mail today. Take them back with you. I'm not going to court again anyway so just piss off. [emphasis added] Later: Ronald Francis Everson then picked up the folder and walked towards me with a steel cap boot in his left hand which was raised above his shoulder. The Respondent said "take them and get f…". The Respondent then threw the folder towards me which landed on the ground. (5 October 2017)

Character and antecedents

The Court heard the Respondent has one previous conviction for an unrelated offence 25 years ago.
Further, it is noted that the Respondent, on 25 July 2016, was subject to a penalty infringement notice from the Council in the amount of $3,000 for "carry[ing] out development forbidden with or without consent" (Affidavit of Jason Roberts, 31 October 2016, [43] and Ex BA (JR1) being the penalty infringement notice).
The Court considers also material, with respect to the Respondent's character, the evidence which the Respondent revealed regarding his traffic infringements. At [14] of his affidavit of 20 December 2017, the Respondent advised that he still owed $7,974 in fines in relation to traffic offences. By any standard, for a person to have nearly $8,000 in outstanding traffic fines is staggering. Sixteen enforcement orders are identified in a statement, as at 7 December 2017, from the State Debt Recovery Office (now Revenue NSW), with nine still outstanding. The Court was informed that these 16 offences related to traffic matters associated with the Respondent's cartage with a trailer. It seems somewhat ironic that these driving offences with a trailer are most probably related to the very business of scrap collection, storage and trading that gave rise to the unlawful conduct the subject of the Consent Orders. By community standards, to receive one such infringement would be unfortunate, two - unimpressive, three - concerning, four - highly unacceptable, five and beyond - appalling. Sixteen such offences reveals a course of conduct which demonstrates a total disregard for the rule of law and a propensity to continue pursuing unlawful conduct, come what may. At Transcript 21.8-9, the Respondent suggested that he had been continuing to collect metal for sale in order to pay off his fines, somehow implying that such a reason was an excuse to keep generating his 'unidentified' income from his unlawful conduct.

General deterrence

The Council submitted that there is a clear need for general deterrence where a respondent has been ordered to remedy breaches of the EPA Act but has failed to do so. This breach of the order is highly visible and obvious, the Council said. It submitted that, apart from the need to vindicate the authority of the Court, there is a need to ensure that respondents comply with orders of the Court to remedy breaches of the EPA Act, particularly where they have consented to those orders but have then persistently failed to comply with them (citing Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 (2009) 170 LGERA 253; [2009] NSWLEC 178 (Plath) at [49]).
The Council argued that it is also relevant to consider the difficulty faced by authorities in seeking to pursue and enforce the orders obtained and the cost involved to the community of enforcement action. It submitted that the penalty imposed needs to send a message to others that breaches of the Court's orders in similar circumstances will have serious consequences and to protect the effective administration of justice by demonstrating that the Court's orders will be enforced.

Personal deterrence

Given the history of this matter, there is every reason to believe that the Respondent fully appreciates the nature of the Court's orders and the need for him to comply with them. The seriousness of the breach and the length of time that it has persisted in spite of the numerous indulgences granted to him suggest that there is a very clear need for personal deterrence in this matter.

Plea of guilty

Mr Everson pleaded guilty to the contempt some five months after the charge was filed, nearly two months after obtaining representation.

Whether a custodial sentence or fine should be imposed?

The Court having concluded that: 1. the Respondent's contempt was contumacious; 2. that his ongoing offending was intentional whilst endeavouring to commercially trade in scrap metal; 3. that his offending, since 9 December 2016 followed four years of non-compliance with the Council's prior efforts to achieve the clean-up of the Premises and demonstrated extreme wilfulness; 4. that his conduct demonstrated an arrogant disregard of the Council and, at times, an uncooperative, offensive and, in one instance, threatening, approach to Council officers and a process server endeavouring to go about their lawful business; 5. that the ongoing offending gave rise to serious and unacceptable amenity impacts, including visual amenity impacts, on the neighbourhood of the Premises; 6. that the extent of rubbish amongst the scrap was such as to create a health hazard in the neighbourhood of the Premises, given the strong likelihood that vermin would be harboured therein; and 7. that the Respondent was deceitful, having lied to the Court. This was apparent from the inconsistency between his sworn evidence in his affidavits and sworn evidence given orally during the hearing (compare, for example, [12] of the Respondent's affidavit of 13 October 2017 with his oral evidence at Transcript 22.3-12). Having been caught out with such blatant inconsistencies, the Court is entitled to assume that in other respects the Respondent has been less than truthful.
In all the circumstances, the Court would have seriously considered that a custodial sentence for an appropriate period of time was warranted. However, given the fact that the Respondent was: 1. 75 years of age at the time of the hearing; 2. there was evidence that he had suffered a minor stroke and other illnesses in the course of the year before the sentencing hearing; and 3. that he had been a disability pensioner (due to back injury) before being an aged pensioner (see [3] of Respondent's affidavit of 13 October 2017), there were overwhelming reasons why it would be inappropriate for the Court to impose a custodial sentence, even though, on the evidence and law there would have been justification for such a sentence. Towards the conclusion of the hearing, the Court advised counsel that there was no need to make oral submissions, beyond the written submissions, on such a sentence (Transcript 48.20).
The Court is mindful that one highly desirable outcome of proceedings such as these is the potential rectification of the contravened planning law. See, for example, Cumberland Council v Khoury [2017] NSWLEC 14 at [114] and Sydney City Council v Sydney Tool Supplies Pty Ltd & Daniel Bek (No 3) [2012] NSWLEC 27. In both those cases the Court decided that a custodial sentence was appropriate but held that the sentence be wholly suspended on the proviso that the contemnors comply with a good behaviour recognisance which entailed the necessary action or steps to ensure compliance with the planning law, thereby purging their contempt. Inherent in the concept of a suspended sentence is the prospect that should the recognisance be breached, then the contemnor's 'default' custodial sentence would be enlivened. The contemnor in these circumstances would soon see themselves in custody serving out their sentence.
So, with such a sentence, the prospect of a period in custody must be a real one, capable of being enlivened in circumstances such as the Court has just described. In the case of Cumberland Council v Khoury, the Court had a pre‑sentence assessment carried out by the New South Wales Probation and Parole Service to determine whether the contemnor would be capable of being placed in custody. Such an assessment will look at a range of factors, including mental and physical suitability for prison. Once the Court is satisfied with such an assessment, then the imposition of a custodial sentence would have meaning and the avoidance of it, via compliance with a recognisance, would have even more meaning to the contemnor, that is, "comply with your recognisance or you'll shortly be incarcerated for the duration of your sentence".
In the case of the Respondent, the Court has confirmed, for the reasons stated, that a custodial sentence is not within contemplation. The Respondent was 75 years of age at the time of the sentencing hearing and he had had a longstanding record of ill health (as demonstrated by having been a disability pensioner and, more recently, having suffered a stroke). It was also apparent to the Court that he demonstrably suffered certain communication impairments (the motivating factor for why the Court decided the original scheduled hearing of the Motion on 10 October 2017 had to be adjourned pending the securing of pro bono counsel to represent the Respondent). It follows that, in this case, a sentence imposing a custodial sentence and then suspending it would, in a sense, be meaningless as, upon default of any recognisance, the Respondent would clearly not be fit for incarceration.
Section 5(1) of the Sentencing Procedure Act provides that a Court must not sentence an offender to imprisonment unless it is satisfied, having considered possible alternatives, that no penalty other than imprisonment is appropriate. In Plath, at [181], Preston CJ listed the circumstances where it is appropriate to consider a custodial sentence as an appropriate punishment to reflect the criminality involved in environmental offences as including: (a) where the offender's conduct involves a considerable degree of wilfulness and deception; (b) where an actuating reason for the offender's conduct is to make a profit or save an expense; (c) where the offender's conduct posed a high level of risk to or actually caused considerable harm to the environment and the public; (d) where the offender's conduct is over an extended period or is of a repetitive nature; and (e) where deterrence, both individual and general, makes the custodial sentence appropriate. [citations omitted]
Although the Court has concluded that, for the reasons explained in [53] above, a custodial sentence ought not be imposed on the Respondent, nevertheless, analysing the considerations set out in Plath, provides a useful means of highlighting the seriousness of the Respondent's non-compliance with the Consent Orders, and subsequently the further clean-up orders of 17 October 2017. In considering the factors in Plath, whilst the Respondent's counsel conceded that (a) and (d) apply, with which the Court entirely agrees, he submitted, in closing oral submissions, in terms of (b), that the Respondent is believed to have only received a modest profit from selling the scrap metal that was on the Premises post December 2016 (and it was sold, counsel submitted, so as to get the metal off the Premises so as to comply with the December 2016 Consent Orders). It was submitted that there would have been expenses to pay for a truck and workmen to come and take away the rubbish, plus tip fees. The Respondent's behaviour was being driven by a desire to "save an expense", counsel submitted, because the Respondent does not have the financial means to pay a large amount to get the clearance achieved.
The Court disagrees with the tenor of the submissions summarised in the previous paragraph. The Court does not accept that the scrap metal sales occurred so as to comply with the Consent Orders and subsequent orders. The Court considers that the Respondent was probably dishonest throughout the proceedings. The Court has concluded that he has set about to deceive the Council, the Court, his own honorary counsel and, most probably, other authorities. There is no basis for it to be said that the Respondent made a modest profit. The context is a business extending back to 2012. Due to the convenient arrangements he pursued there is little likelihood that there are, or ever would have been, records to identify what income the Respondent generated. As for the outgoings, the Court understands the Council provided its regular pick-up service free of charge and that a scrap metal dealer, Mr Norman of Norman's Scrap Metals, provided his skips free of charge. At Transcript 23.42-45, the following exchange occurred between counsel for the Council and the Respondent: Q. It's the case, isn't it, that, on at least ten occasions in the last 12 months, Mr Norman has offered you skip bins free of charge to remove the scrap metal and other material from the land? A. That's right.
The Respondent's counsel submitted that in terms of consideration (c) in Plath, it is difficult to see the non-compliance as putting the public or environment at high risk. The Court notes that consideration (c) in Plath is not just about 'high risk', rather in that matter his Honour also referred to whether the offending "actually caused considerable harm to the environment and the public". Those are relative terms that will vary in their application depending of the facts in each case. There are two passages in the transcript which record the account given by Mr Roberts of two aspects that go to environmental harm impacting upon the public. First, at Transcript 13.8-18, regarding vermin and so potential harm to public health and safety: Court - Q. In the submissions that Mr Wright has placed before me (he) refers to the fact that the accumulation of the rubbish and materials that we see in your photos might have resulted in vermin. "The accumulation of…habitat for vermin." That's a matter that goes to health and safety in addition to the visual intrusion into the neighbourhood. You, being the officer that you are and with the responsibilities that you have, what's your opinion about what I see in these photos as being likely to encourage the habitation for vermin? Roberts - A. In my opinion, most definitely, and in particular, not only the material out the front, but in the rear yard where it's stored under the pergola where it's just a - a breeding ground for vermin. There's no sunlight or air that gets in anywhere. There's no pedestrian traffic to - it's just stored there.
Secondly, regarding visual amenity, at Transcript 13.38-50: Court - Q. Just to give me a contextual understanding, Mr Roberts, because, in one sense, the photo 007 is the only one that provides a glimpse of the street, how does the Everson property with this material I can see compare with the neighbourhood? If I was to examine that house across the road, it appears to be a house surrounding by a garden filled with flowers and lawn. Is that the characteristic that is in the street? Roberts - A. All other houses within that vicinity are all in good condition in all their front yards, whereas this is the only premises in that area that has that type of material. I suppose you could pretty much use the analogy of a spot of black paint on a white sheet. Court - Q. I see. Black paint on a white sheet. Roberts - A. If I could just add to that and make mention of: there's no grass in the front yard, where it's been completely worn out with the storage of all the materials.
The Court concludes that, in the context that the conditions complained of on the Premises have extended back to at least 2012, when the Council first started its effort to secure a clean-up of the property, through to the hearing, conditions such as are described in the foregoing passages from the transcript, that there is a sound basis to conclude that there has been considerable harm caused to the environment and the public and, without appropriate clean-up of the Premises, that harm will be ongoing. Accordingly, consideration (c) in Plath is satisfied in the Court's opinion.
In terms of consideration (e) in Plath, the Respondent's counsel agreed that as a means of deterrence imprisonment is a strong deterrent, but so could the imposing of a fine. In this instance, the Court agrees, especially the recurring fine which the Court has decided to impose as a means of encouraging compliance.
Accordingly, the Respondent submitted, and the Court agrees, that a fine, rather than imprisonment, is appropriate. As Preston CJ stated in Plath at [202]: A fine is the most common sentencing option and often the most appropriate penalty for environmental offences. The fine embodies the legislative view, based on community standards, of the seriousness of criminal conduct. A fine can achieve the purposes of sentencing of retribution, accountability, denunciation and deterrence. A fine is appropriate in the circumstances of the offences and the offender in this case.

Capacity to pay a fine

Section 6 of the Fines Act requires that the Court consider the means of the Respondent prior to fixing the level of the fine. Preston CJ in Plath also stated that: [i]f the court is satisfied that the offender would be unable to pay the amount determined, the court may reduce the amount of the fine to take account of the offender's means and impecuniosity: R v Rahme (1989) 43 A Crim R 81 at 86-87.
The Respondent owns the Premises with no encumbrances. The Respondent submitted that his main other asset is $1,168 in a St George Bank account - see [5] in Respondent's affidavit of 20 December 2017 (however, the Court notes his 13 October 2017 affidavit wherein he states at [10] that he has approximately $4,000 in his bank account- see [78] below). The Respondent's counsel stressed that the Respondent is an old age pensioner and submitted that the fortnightly net amount available from his age pension, after all deductions have first been taken out, is $310. The Respondent argued that any substantive fine would be beyond his ability to pay (that is, without having to sell his house). However, as observed later by the Court, an unencumbered house may provide the security to raise the funds for a fine, without actually selling property.
Whereas the Court accepts this evidence 'on its face', the Court believes this 'face' could well be misleading, not revealing the whole picture. It is relevant to consider that for many years the Respondent has been generating income from an unpermitted or illegal business of collecting, storing and trading in scrap metal. In the absence of any record of this 'business', the Court has no means of determining the true financial status of the Respondent. The public record of the Respondent's financial capacity may be deceiving. The true extent of this illegal business will never be known, but the manner by which details emerged revealed that there had been a course of deceitful conduct pursued by the Respondent.

Sentence

The Council submitted that the Respondent should be convicted of the contempt and that, notwithstanding the Respondent's personal financial circumstances, a substantial fine is an appropriate penalty. The Council submitted that the Court should also consider imposing a periodic penalty until the Respondent has fully complied with the orders. The Court considers that both these submissions are soundly founded on a proper analysis of the evidence.
Taking all relevant matters into account, I consider it appropriate to fine the Respondent $5,000 pursuant to r 55.13(1) of the Supreme Court Rules 1970, which applies to these proceedings by virtue of r 5.2(1) of the Land and Environment Court Rules 2007.
Determining the quantum for the fine has been a difficult exercise. On the one hand, the disclosed public record of the Respondent reveals an elderly, ill pensioner receiving an age pension. On the other hand, it is established, to the Court's satisfaction, that since at least 2012 the Respondent has been conducting a business of collecting, storing and selling scrap. There are no records as to the quantum of income generated from his scrap business. It is clear that the Revenue NSW has accepted the Respondent's impecunious state by allowing his remaining near $8,000 in traffic fines (as at December 2017) to be paid off by fortnightly instalments until 2022, the year the Respondent turns 80. Having determined that the Respondent's contempt has been contumacious and given the circumstances, where the Court considers there is clear evidence of him being dishonest, there are sound grounds to justify a substantial fine.
The Court does not consider $5,000 to be, objectively, a substantial fine, however in the context of the status of the Respondent (as far as it can be discerned), even though there is clearly a history of undisclosed income, subjectively, $5,000 is most probably a substantial fine to the Respondent. Given that the Respondent owns the Premises unencumbered, which can be leveraged in order to secure funds to pay this fine, the Court has dismissed the thought, as foreshadowed at [19] in the Respondent's submissions, that provision be made for the fine be paid off by fixed instalments.
With the Court being cognizant of the fact that the Respondent owns the Premises unencumbered, if it is the case that the Respondent has so arranged his affairs that there are few apparent liquid funds, then an unencumbered property can provide the means by which funds can be generated to fund the fines the Court imposes. In the context of the real estate value of an entire residential lot, the fines the Court will impose are both affordable, yet sufficiently 'painful' to send a strong message to the recalcitrant Respondent and for the community at large. In circumstances where the Respondent openly admitted that his son has for years been conducting the same unlawful business, in fact facilitating it via providing his own vehicle and trailer, the message will be concurrently received by the Respondent's son.
A penalty of a fine is appropriate punishment for the contempt in this case and the amount of $5,000 is appropriate for the charge. The imposition of additional fines of $2,000 per month is also appropriate in order to secure compliance with the Consent Orders. However, the $2,000 monthly fine will be capable of being discharged if the Respondent purges his contempt by complying with the Consent Orders by an extended date for compliance of Thursday, 14 March 2019. Although the Court has taken some considerable time deliberating in this matter, during which time the clean up of the Premises may have advanced, the Court will, nevertheless, allow this further period for compliance.
In imposing these fines, the Court is cognizant of the submissions placed before it that the Respondent is an old age pensioner, with limited declared income. However, in the course of hearing the evidence of the Respondent, the Court formed the view that it was clear that he had been in receipt of regular income from the sale of scrap metal for many years, back to at least 2012. However, by reason of the mode of his operations dealing with the scrap metal, it would be virtually impossible for the income from his scrap trading to be identified with any particularity or certainty. The Court has a strong suspicion that the Respondent has been a participant in what is generally referred to as the 'cash economy'. Senior counsel for the Council was circumspect, entirely properly, regarding this aspect of the inconsistency of the Respondent's financial situation, not pressing that aspect of the 'business'. However, the Court is obliged to analyse the veracity of that which was asserted by the Respondent.
The Court also considers that the Respondent was manipulative and dishonest. At [12] of the affidavit of 13 October 2017 he boldly and unambiguously stated, "[n]either myself nor my son carry on any business on the Land. That is, no commercial activity is undertaken on the Land". In the Respondent's affidavit of 20 December 2017 at [6], after referring to his Centrelink pension, he said, "[t]his is my only form of income other than a nominal amount of interest on my bank account". Yet, under the skilled cross‑examination of Mr Wright, the Respondent repeatedly admitted that he had indeed conducted a commercial operation on the Premises, together with his son, by which they collected and traded scrap metal for commercial profit (Transcript 20.19-50; 21.1-50; 22.1-50; 23.1-50; 24.1-38).
The Court is entitled to form an even more serious assessment of this situation in circumstances where the affidavits of both 13 October 2017 and 20 December 2017 were prepared after Dr O'Shea had kindly commenced acting for the Respondent on a pro bono basis, at the request of the NSW Bar Association, without the benefit of an instructing solicitor. The coversheet of both the affidavits only reveal the name of Dr O'Shea. In the context of what the Respondent subsequently said under oath in the witness box, fully conceding that over many years he pursued a business generating income from the collection of scrap metal, the Court can only conclude that the Respondent blatantly lied to his counsel.
At Transcript 20.4-16, the Respondent confirmed that he controls the Premises and, even if his son brought in scrap material, the Respondent could nevertheless instruct his son not to do so. He readily agreed with these propositions. Quoting just two passages from the transcript will suffice.
In paragraph [8] of Mr Everson's affidavit of 13 October 2017 he confirmed that he purchased the Premises approximately 15 years earlier, that is, in 2002, and that it is unencumbered. The Respondent is obviously a man with at least one substantial asset. He also declared in this affidavit, at [10], that he has some $4,000 in his bank account, (but see [66] above: in his affidavit of 20 December 2017 at [5], the Respondent deposes to his bank balance as being $1,168), but is paying off unpaid driving offence fines to Revenue NSW. His affidavit also revealed, at [11], that he has an adult son living in the premises. In the course of cross-examination, it was revealed that, since the Respondent lost his licence due to multiple traffic offences, it is his son, driving his car and trailer, who has been, together with the Respondent, collecting scrap.

Costs

Counsel for the Respondent, in submissions, referred to Borrie and Lowe: The Law of Contempt (4th ed, 2010, LexisNexis). The authors note (from an English law perspective), at p 228, that: 1. where appropriate the court may make no order as to costs at all; and 2. an award of costs on any basis may in itself amount to a substantial sanction and can be taken into account in determining what sum, if any, the contemnor should be fined.
Counsel for the Respondent then argued that if the Court found the Respondent should be liable to pay costs, then it should be on the ordinary basis and not on an indemnity basis. He submitted that, where contempt is established on an application by a private prosecutor, the usual order is for costs to be paid on the ordinary basis: McIntyre v Perkes (1988) 15 NSWLR 417. However, he conceded that McIntyre v Perkes, at [427], nevertheless confirmed that, "… orders for costs are essentially exercises of judicial discretion …", also citing Ditfort v Katz [1991] NSWCA 80).
The Respondent's counsel submitted that, in Dal Pont Law of Costs (3rd ed, 2013, LexisNexis), it is reinforced that "there is no 'rule' that successful contempt proceedings necessarily attract indemnity costs orders, as this would be inconsistent with the exercise of curial costs discretion" (at [16.68]). The Court accepts that statement of the law is correct.
In the circumstances of this case, the Court has decided that it is appropriate for the Council to be compensated for bringing the contempt proceedings by an order for costs on an indemnity basis. Had the Respondent not pursued a deceitful course in his defence, misleading the Court and clearly misleading his own pro bono counsel, then the Court may have been more amenable to the Respondent's submissions to impose costs on the ordinary basis. However, given the circumstances as they emerged, this is a case where an award of indemnity costs is appropriate.

Orders

For these reasons, I make the following orders: 1. The Respondent Ronald Francis Everson is found guilty of contempt by failing to do the 'clean-up works' required by order 1 of the orders made by this Court on 9 December 2016 (the Consent Orders), within the time period required by that order, as charged in the Statement of Charge filed on 26 July 2017 (for the purposes of this and order 4, 'clean-up works' means the requirement to remove or cause to be removed from the land known as Lot 149 in Deposited Plan 238630, being 15 Tangaloa Crescent, Lethbridge Park (the Premises) all scrap materials and goods collected, stored or abandoned thereon including the items listed in (a) to (u) inclusive of order 1 of the Consent Orders.) 2. The Respondent is fined a sum of $5,000, payable to the Registrar of the Court, within 28 days of the date of these orders. 3. The time for compliance with order 1 of the Consent Orders of 9 December 2016 (as previously extended by Court order on 17 October 2017 to 30 November 2017) shall be extended until 14 March 2019. 4. The Respondent is to: 1. provide officers of the Blacktown City Council (Council) unimpeded access to the Premises on Friday 15 March 2019 and, if necessary, Monday 18 March 2019, so as to enable those officers to carry out an inspection of all external areas of the Premises to determine whether the clean-up works have been satisfactorily carried out; and 2. allow such officers, whilst in the course of their inspection, to take such photographs and video film as may be necessary to properly record the state of the Premises. 1. In the event that the Respondent has not complied with the Consent Orders by the extended compliance date of 14 March 2019 in accordance with order 3, the Respondent is fined a further sum of $2,000 per calendar month for each month of non-compliance or part thereof, payable to the Registrar of the Court, with the first payment to be made on Thursday, 21 March 2019 and monthly thereafter for so long as the Consent Orders are not complied with or otherwise varied. 2. Order 5 is discharged if the Respondent purges his contempt by fully complying with the Consent Orders by Thursday, 14 March 2019. 3. Lest there be any doubt, orders 2 and 3 of the Consent Orders remain ongoing with which the Respondent must comply. 4. The Respondent is to pay the Council's costs of this Motion for contempt as agreed or assessed on an indemnity basis.

Annexure A - chronology (71.1 KB, docx) 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: 18 January 2019

(2009) 170 LGERA 253

At a glance

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Judgment (18 paragraphs)

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Cases Cited (17)

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