Blue Legend Australia Pty Ltd v Liverpool City Council

Land and Environment Court (NSW)|2017-03-20|Before: Pain J

SOLICITORS: Breens Solicitors and Conveyancers (Appellant) Liverpool City Council (Respondent) File Number(s): 16/308787 Decision under appeal Court or tribunal: Liverpool Local Court Jurisdiction: Criminal Date of Decision: 16 September 2016 Before: Magistrate Baptie File Number(s): 2015/344497

Sentencing appeal

This is an appeal brought under s 31 of the Crimes (Appeal and Review) Act 2001 (Appeal and Review Act) and pursuant to s 21A of the Land and Environment Court Act 1979 (Court Act). The Appellant was convicted and sentenced in the Local Court on 16 September 2016. The Appellant was ordered to pay a penalty of $36,000 and the Council's costs of $2,000. This appeal is limited to the severity of the sentence imposed in the Local Court. The Appellant does not challenge the finding of guilt or the conviction in the Local Court.

Particulars of the offence

The Appellant was convicted in Liverpool Local Court on 16 September 2016 of an offence under s 76A(1)(b) of the Environmental Planning and Assessment Act 1979 (EPA Act) in that the Appellant had carried out development contrary to a development consent.
The Appellant operated a shop within the Liverpool Plaza from which fresh and cooked seafood was displayed and sold. Development consent was granted on 12 September 2002 to a previous owner which authorised a shop fitout in accordance with certain approved plans. The Prosecutor Liverpool City Council alleged that the shop was not being used in accordance with the development consent and in particular the approved plans. The period of the offence is from 3 July 2015 to 21 October 2015.
The proceedings in the Local Court were commenced by Court Attendance Notice served on the Appellant as the business operator of the seafood shop. The Appellant, represented by Mr Huang the sole director of the company, pleaded not guilty to the charge.
Following a hearing on 5 May 2016 and 5 September 2016 the Court found the offence proved and on 16 September 2016 proceeded to convict and sentence the Appellant accordingly.

Documentary evidence in sentence hearing

The Appellant tendered a bundle of documents which became Exhibit A in these proceedings. The bundle contained a court attendance notice dated 10 November 2015, a copy of the Local Court orders made on 16 September 2016, transcripts from the Local Court proceedings, a report of Mr O'Brien certifier on shop refurbishment of the premises occupied by the Appellant dated May 2016, which the Appellant relied on, and two unsigned financial statements of the Appellant for the years ending 2014 and 2015 respectively. The Appellant tendered a further financial statement for the year ending 2016 which became Exhibit B. All the financial statements showed that the Appellant was trading at a large deficit. Exhibit C was a surrender of lease dated 1 March 2016 and deed of surrender and release between the owner of the property leased to the Appellant, the Appellant company and its sole director Mr Huang.
The Council tendered a bundle of documents containing evidence and other written materials from the Local Court hearing which became Exhibit 1. The bundle included the Magistrate's written decision and the court orders that were issued following the conviction. The evidence before the Local Court included documents relating to the Council's assessment of a development application in respect of the subject premises for which consent was granted on 12 September 2002. The application, made by a previous occupier of the premises, was for a fish shop and contained plans that were relied upon by the Council in these proceedings to show the permitted use of the premises. In particular the Council referred the Court to the locations where the Applicant had kept crates and buckets containing uncooked fish for sale showing that these were not indicated as permitted on the plans. The evidence before the Local Council also consisted of the LORUS report of May 2016, photographs taken of the premises by Council officers showing fish stored and displayed in buckets filled with ice in various locations around the shop, a copy of an order issued under s 121B of the EPA Act on 30 June 2015 to comply with development consent and photographs taken by Mr Huang of fish displays at other seafood shops. Exhibit 2 was also tendered by the Council and was a plan from the development application that was approved in respect of the premises occupied by the Appellant.

Oral evidence in sentence hearing

The financial statements of the Appellant tendered in these proceedings were not signed by an accountant. Mr Huang director of the Appellant company gave brief oral evidence in this appeal that these statements are a true and correct record of the Appellant's financial position. He also stated that the Appellant did not have any prior convictions. Mr Huang was not cross- examined.

Oral evidence in Local Court

The Council relied on the evidence of Mr Tleige compliance officer at the Council given orally at the Local Court hearing gleaned from transcripts of those proceedings. Mr Tleige said that he had inspected the Appellant's premises on 10 to 15 occasions. He issued the Appellant with an order under s 121B of the EPA Act on 30 June 2015 requiring the Appellant to, inter alia, remove the buckets displaying seafood. This order was not fully complied with which prompted the commencement of proceedings in the Local Court on 21 October 2015.
The Council also relied on the evidence of Mr Ramsey environmental health officer at the Council given orally at the Local Court hearing. Mr Ramsey testified that the Appellant's storage and display of raw fish in open crates and buckets in various locations around the shop was unsafe and potentially harmful to customers. Cold food such as fish must be stored at or below 5 degrees Celsius in accordance with Australian food standards to minimise risk of causing food-borne illness. The Council received complaints from customers and adjoining shopkeepers of offensive odours being emitted from the shop. Mr Ramsey confirmed this assessment of malodours following his inspections of the premises.
Mr Ramsey observed that the crates and buckets containing seafood and ice were not draining adequately and that this led to the potential for contamination.

Purposes of sentencing

Section 3A of the Crimes (Sentencing Procedure) Act 1999 (CSP Act) identifies the purposes of sentencing. It states: 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 CSP Act identifies numerous matters which a court must take into account when sentencing including in relation to aggravating (s 21A(2)) and mitigating (s 21A(3)) factors.

Objective seriousness of the offence

Relevant factors to determine the objective gravity of an offence under the EPA Act were identified in Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34 at [163] and Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242 at [110], including the maximum penalty, objective harmfulness of the defendant's actions, reasons for the commission of the offence and state of mind of the offender. The foreseeability of the risk of harm is relevant, as are the practical measures that could have been taken to avoid harm and the defendant's control over the causes of the harm, per Council of the Municipality of Kiama v Pacific Real Estate (Warilla) Pty Ltd [2009] NSWLEC 191 at [67].

Maximum penalty

The maximum penalty for the offence committed is a relevant consideration reflecting the seriousness of the offence as nominated by the Parliament of New South Wales (NSW), per Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698; see also Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at 372. The offence was a continuing offence and at the start of the relevant charge period the maximum penalty was $1,100,000. I note that the maximum penalty for this offence, as a tier two offence, for corporations was increased during the period of the offence to $2,000,000 as part of amendments to the EPA Act introducing a three tier offence regime in ss 125A, 125B and 125C which commenced on 31 July 2015. For the reasons identified by Preston CJ in Council of the City of Sydney v Adams [2015] NSWLEC 206 at [22]-[30] these provisions do not apply to offences committed under s 125(1) before 31 July 2015. The charge in maximum penalty occurred during the charge period for this offence.
As the Council submits the Court can have regard to the increased maximum penalty as a reflection of the increased seriousness with which Parliament views the offence. This increased level of concern is to be reflected in the sentences imposed by the courts, see Burwood Council v Erector Group Pty Ltd; Burwood Council v Liverpool Developing Pty Ltd [2017] NSWLEC 20 at [14], citing R v Howland (1999) 104 A Crim R 273; [1999] NSWCCA 10 at [17].

Environmental harm

There is no evidence of any actual environmental harm being occasioned by the commission of this offence. I accept the Council's submission that the potential for harm was present in the failure of the Appellant to ensure the proper placement and arrangements for the sale of food, particularly uncooked seafood. Further, the placement of the buckets containing the uncooked fish caused hazards in terms of access and use of the area within the shop. This is evident from the evidence of Mr Ramsay which included photographs of the shop operating in breach of the development consent.
The Council also submits and I accept that the offence caused harm to the regulatory system of planning in NSW, see Lane Cove Council v Wu [2011] NSWLEC 43 at [45]; Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89 at [35]; Pacific Real Estate at [72]-[73]; North Sydney Council v Perini (No 2) [2013] NSWLEC 91 at [137].

Control over causes

The Appellant had control over the causes of the offence.

Appellant's state of mind

I accept the Council's submission that the Appellant acted at least negligently in failing to make enquiries and understand the requirements of the development consent. I also accept that the Appellant acted intentionally in configuring the shop contrary to development consent and the approved plans. The Council relied upon oral submissions made by Mr Huang before the Local Court that he had been relying on professional advice as to how he could lawfully configure the shop. It is therefore no answer that the Appellant was ignorant of the applicable legal requirements.
It is also apparent from the history of inspection by Mr Tleige council officer and the issuing of a s 121B order under the EPA Act as summarised above in par 10 that the Appellant was aware for many months of the Council's concerns about the manner of operation of the shop. Following the service of the s 121B order on 30 June 2015 numerous inspections of the premises were carried out and the shop was compliant on only one of these occasions.

Reasons for committing offence

The offence was committed in the course of conducting a commercial operation and was for financial gain.

Foreseeability of risk of harm

The Council submits that the risk of harm to the system of planning in NSW was foreseeable.

Practical measures and control

The Council submits that the Appellant could have implemented practical measures to avoid and ensure control over the causes of the offence.

Characterisation of objective seriousness

The Council submits that the appropriate characterisation of the objective seriousness of the offence is "low to moderate". Within the overall context of the matter being less serious, I agree.

Subjective factors

The Appellant benefits from few of the mitigating factors identified in s 21A(3) of the CSP Act as follows: 21A Aggravating, mitigating and other factors in sentencing … (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, … (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (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), … (m) assistance by the offender to law enforcement authorities (as provided by section 23).

Prior record and good character of Appellant

I accept the Appellant has no prior record. There is no evidence of the Appellant's character.

Likelihood of re-offending

The Council submits that in light of the Appellant's not guilty plea and the lack of evidence as to good character the Court cannot be satisfied that the Appellant is unlikely to re-offend. I agree.

Remorse and contrition

There is no evidence of contrition and remorse, see JJ and ABS Investments Pty Ltd v Environment Protection Authority [2011] NSWLEC 199 at [32].

Assistance to authorities

There is no evidence that the Appellant co-operated with the Council in relation to the investigation of the offence or the preparation of the matter for hearing in the Local Court.

No early guilty plea

The Appellant entered a "not guilty" plea and is therefore not entitled to any discount for an early plea of guilty.

Prosecutor's costs

The Appellant has not offered to pay the Prosecutor's costs, either in the Local Court or in this Court.

Deterrence

Deterrence is an important factor in sentencing for environmental offences. A sentence should operate as a powerful factor in preventing the commission of similar offences by those who might otherwise be tempted by the prospect that only light punishment will be imposed, per Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419 at [228].
The Council submits that specific deterrence should feature heavily in the sentencing exercise, in particular due to the potential environmental harm of an offence of this type and the Appellant's plea of "not guilty" which demonstrates a lack of contrition and remorse and therefore a potential to re-offend.

Capacity to pay a fine

The primary submission of the Appellant in this appeal is the lack of financial capacity to pay the fine imposed by the magistrate. The three financial statements of the Appellant before the Court suggest that the company is trading at a large deficit. I can give no weight to the Appellant's counsel's submission from the bar table that Mr Huang the sole director would personally pay the fine if it was substantially reduced in the absence of any specific evidence to support that submission.
Lack of capacity to pay a fine is but one of the matters relevant to the exercise of sentencing discretion.

Consistency in sentencing

A sentencing principle is that like cases should receive like penalties subject always to the necessity of considering the facts of a particular case. There are a large number of matters before this Court where offenders have been sentenced for failing to comply with development consent conditions in a wide range of circumstances. The Prosecutor in its submissions at par 43 identified a number of these. In the cases there identified the defendants pleaded guilty and generally had a large number of mitigating circumstances available to them which resulted in substantial discounts on penalty. The Appellant does not have such a benefit. The penalties in those cases provide a range which would include that imposed by the magistrate in this matter.

Costs in the Local Court

No issue has been raised in relation to the Local Court costs of $2,000.

Appeal dismissed

The objective seriousness of this offence is in the low to mid range within the overall context of this kind of matter. The only mitigating factor available is that the Appellant has no record of prior convictions. That the Appellant has a limited capacity to pay a fine is accepted. No basis for reducing the penalty imposed by the magistrate is demonstrated however. The appeal should be dismissed.

Costs of the sentencing appeal

Pursuant to s 49(4) of the Appeal and Review Act the Court may make such order as to costs to be paid by either party as it thinks just. Section 70 concerning limitations on the award of costs against public prosecutors is not relevant. Under s 72(b) the Court must order costs be paid within a stated time. Costs are compensatory not punitive per Latoudis v Casey (1990) 170 CLR 534 at 543. As the Appellant has been unsuccessful in the appeal against sentence it is appropriate to make an order that the Appellant pay the Council's costs. Such costs are payable within two months (60 days) of the order being made.
As an administrative matter, the penalty and costs should be paid to the Land and Environment Court Registry.

Orders

The Court makes the following orders: 1. The sentencing appeal is dismissed. 2. The Appellant is to pay the Council's costs within 60 days. 3. The exhibits be returned.

Amendments 22 March 2017 - Cover page - omitted local court appeal details added. 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: 22 March 2017

(2006) 145 LGERA 234

(2006) 148 LGERA 299

(2006) 145 LGERA 189

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