Burwood Council v Doueihi

Land and Environment Court (NSW)|2013-11-11|Before: Pain J

Sentence for offence of carrying out work without development consent 1The Defendant, Antoine Doueihi, has pleaded guilty to one offence committed contrary to s 125(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) in the amended statement of charge dated 11 November 2013. The charge relates to Mr Doueihi's failure to comply with a development consent granted by the Prosecutor in relation to development application 189 of 2011 (DA189/11) from 8 June 2012 to 24 October 2012 contrary to s 76A(1) of the EPA Act. A plea of guilty is an admission by Mr Doueihi of the essential elements of the offence. 2I note for completeness that the amended statement of charge handed up at the sentence hearing reduced the number of charges. 3A statement of agreed facts (SOAF) was provided by the parties together with three plans tendered by the Prosecutor, being the original DA plan lodged with the Prosecutor, an amended DA plan lodged with the Prosecutor and a copy of the amended DA plan marked up by the Prosecutor's law enforcement officer. These documents provide the factual basis for sentencing. The SOAF stated as follows: 1. The Defendant, Antoine DOUEIHI, is presently the Deputy Mayor of Burwood Council. 2. The Defendant was elected as a Councillor on Burwood Council in September 2012. Prior to that time he served as a Councillor between 1995 and 2000. He also served as Deputy Mayor in about 1997 or 1998. 3. At all relevant times the Defendant has been the owner of land and development located at 113 Burwood Road Burwood NSW. 4. At all relevant times the Defendant has been the Director of Baker Street Pty Ltd being the owner of land and development located at 113-117 Burwood Road Burwood. 5. The development that is the subject of this charge was undertaken at 113 -117 Burwood Road Burwood ("the premises"). 6. The Defendant was the applicant for consent in relation to development at the premises. 7. The built form at the premises is in one continuous line of development consisting of two levels with car parking at the rear of the building(s). Background 8. In September 2010 the Defendant submitted to the Prosecutor development application 173 of 2010 ("DA 173/2010"). By way of DA 173/2010 the Defendant sought consent for development consisting of a boarding house and other extensions to the first floor of the premises. 9. On 30 November 2010 the Prosecutor gave its conditional consent to DA 173/2010. 10. The Prosecutor's conditional consent to DA 173/2010 allowed the Defendant to develop a boarding house on the first floor of the premises consisting of 10 bedrooms and housing a maximum of 12 people inclusive of a manager. The Offence 11. On or about 7 November 2011 the defendant submitted development application 189 of 2011 ("DA 189/11") seeking to extend the use of the premises as a boarding house. 12. By way of DA 189/11 the Defendant sought to add nine additional boarding house rooms and associated facilities. All additional rooms and facilities were to be located on the second floor of the premises. 13. That [sic] there were a number of issues in relation to DA 189/11 that initially prevented the Prosecutor from giving development consent. One such issue was in relation to a lack of car spaces for the additional boarding rooms. 14. On 29 November 2011 the Defendant submitted to the Prosecutor plans in relation to DA 189/11. A copy of those plans is located at Exhibit RT04, with plans relating to the nine additional boarding house rooms being referred to as "level 2 floor plan". 15. Between 29 November 2011 and 28 March 2012 the prosecutor received various car parking proposals/plans in relation to DA 189/11. Each of these proposals/plans was rejected because of inconsistencies with the car parking requirements set out in DA 173/2010 and because of the car parking requirements set out under clause 30 of the affordable housing SEPP. 16. On 19 March 2012 Mr Robert Toohey, the Prosecutor's Executive Planner, attended the second floor of the development and saw that all the work sought to be undertaken in relation to DA 189/11 had already been commenced despite no consent having been given by the Council. 17. On 3 April 2012 in a meeting between the defendant and the Prosecutor, there was a discussion about the Defendant reducing the scale of the development by reducing the number of additional boarding house rooms sought in DA 189/11 from 9 to 5. The import of this proposal was that the reduced number of rooms would result in a reduced number of car parking spaces required for the development. 18. On 17 May 2012 the Prosecutor received amended plans that indicated a reduction in the number of boarding house rooms sought to be added so that the second floor of the development would consist of five additional boarding house rooms rather than nine. 19. The amended plans indicated that rooms originally marked on the level 2 floor plan as rooms 204 through 207 would be replaced by a large void area that was indicated on the amended plans as "enclosed unused area". 20. On 8 June 2012 Council gave its conditional consent to DA 189/11 on the basis that it would only allow an additional five boarding house rooms, one indoor communal area and one common outdoor area to be built on the second floor of the premises as per the amended plans received by the Prosecutor on 17 May 2013 [sic]. 21. On 29 June 2012 Mr Toohey attended level 2 of the subject premises in company with the defendant. Mr Toohey saw that the doorways to four additional boarding house rooms shown on the original plans as rooms 204, 205, 206 and 207 had been covered with some form of painted board. 22. In October 2012 Mr Andrew McClure, a law enforcement officer employed by the Prosecutor, received a complaint relating to parking at 113 - 117 Burwood Road Burwood. He attended the premises in company with Mr Morley, a senior law enforcement officer. 23. At the premises on the second floor Mr Morley and Mr McClure saw that there were nine additional boarding house rooms rather than five. They saw that the four extra boarding house rooms were units 204, 205, 206 and 207 being the rooms that were deleted by the amended plan submitted to the Prosecutor on 17 May 2012. 24. On Wednesday, 24 October 2012 Mr Morley and Mr McClure again attended the premises and conducted an inspection of the second level. They inspected the interior of boarding house rooms 204, 205, 206 and 207 and took photographs. 25. On Monday 11 March 2013 Mr Morley conducted an interview with the defendant. The defendant was cautioned and the interview was recorded on an audio CD and also reduced to a transcript. During the interview, the defendant made admissions to building the additional boarding house rooms and to renting them out whilst he only had consent for an additional five boarding house rooms. 26. In or about July 2013 the defendant lodged a modification pursuant to Section 96 of the Act in which he sought to be allowed to utilise the four additional rooms. In lieu of sufficient parking the defendant offered to make a financial contribution. 27. That application was supported by an independent town planner and, at a meeting of Burwood Council held on 23 July 2013, it was agreed that the modification would receive further consideration. 28. On or about 29 August 2013 the defendant was advised that the Council had resolved to agree to the defendant's modification application subject to it being exhibited for a period of 28 days. That period of exhibition has commenced and is due to expire on or about 12 November 2013. 4The Court may take facts into account in a way that is adverse to the Mr Doueihi's interest if they have been proved beyond reasonable doubt. The Court may take facts into account in a way that is favourable to Mr Doueihi if they have been proved on the balance of probabilities: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27]. 5Two character references were provided by Mr Doueihi. One reference was provided by Mr Chidiac who has known Mr Doueihi for approximately ten years. Mr Chidiac stated that Mr Doueihi is of good moral standing, honest, genuine, a hard-working family man, ethical, professional and held in high esteem by those around him. Mr Kayrouz, the president of the Maronite Catholic Society, provided another reference. He has known Mr Doueihi for approximately 15 years. He stated that Mr Doueihi has been an active church member, makes regular donations to good causes, attends Church function and is a highly valued member of the church. He believes that Mr Doueihi is of extremely good character. Both references were made in the knowledge that Mr Doueihi was charged with the offence before me. 6The purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (CSP Act) are: (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. 7Of particular relevance in this matter are (a), (b), (e), (f) and (g). 8When sentencing the Court must apply the instinctive synthesis approach by identifying all the relevant factors, discussing their importance and making a "value judgment as to what is the appropriate sentence given all the factors of the case": Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 at [26] unanimously following Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [51] per McHugh J. The sentence must reflect all the relevant objective circumstances of the offence and subjective circumstances of the defendant: see Veen v R [1979] HCA 7; (1979) 143 CLR 458 at 490; Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472 - 473, 490 - 491. The sentence should not exceed what is "justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances": Veen v The Queen (No 2) at 472, 485 - 486, 490 - 491, 496; Hoare v R [1989] HCA 33; (1989) 167 CLR 348 at 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ). 9In Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [163] and Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [110] relevant factors to determine the objective gravity of an offence were identified in the context of the EPA Act. These include the maximum penalty, the objective harmfulness of the defendant's actions, the reasons for the commission of the offence and the state of mind of the offender. Another relevant factor is the statutory scheme in which the offence provision occurs.

Nature of offence within statutory scheme 10The offence results from a failure to comply with the development control laws of the State identified in the EPA Act. The EPA Act's objects include the promotion and orderly and economic use and development of land (s 5(a)(ii)). As identified in many cases in this Court, failure to comply with that scheme undermines the integrity and efficacy of that important system to which all citizens are subject: see Blue Mountains City Council v Carlon [2008] NSWLEC 296 at [48], Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89 at [35]; Willoughby Council v Vlahos [2013] NSWLEC 71 at [31] and Burwood Council v Matthews [2013] NSWLEC 23 at [33]. In this case that undermining of the integrity of the planning system is exacerbated by Mr Doueihi's position as a former and current elected councillor on the prosecuting council, a matter I refer to in more detail below.

Maximum penalty 11The maximum penalty is set by s 126(1) and is $1,100,000 with a daily recurring penalty of $110,000. The Prosecutor does not seek a daily recurring penalty. The maximum penalty and the daily recurring penalty indicate Parliament's intention that offences under s 125 of the EPA Act are serious.

Objective harmfulness 12The Prosecutor submitted that Mr Doueihi has committed an environmental offence which is serious. It is conceded that in the circumstances Mr Doueihi's actions have not caused actual harm to land. Mr Doueihi submitted there was little environmental harm occasioned by the breach. 13While there is no actual physical harm to land as a result of the offence, the use of the premises for more than the approved number of units resulted in more residents than planned for living in the locality and greater demand for car parking. Lack of car spaces was one of the reasons the original DA was not approved, SOAF at par 13-15, 17. I infer this led to problems with the provision of adequate parking as the reason Mr McClure, Council officer, attended 113-117 Burwood Road in October 2012 was to respond to a complaint about parking at the premises. This circumstance underlines the importance of obtaining and complying with a development consent. The making of a development application and its assessment by a council of the impact of a proposed development in determining whether to grant development consent ensures the amenity and convenience of other residents surrounding a development are met. I consider there was environmental harm in relation to the impact on amenity and convenience to other residents in the locality resulting from the offence.

Mr Doueihi's state of mind 14This is a strict liability offence and mens rea is not an element of the offence. Mr Doueihi's state of mind can nevertheless be taken into consideration when assessing the objective gravity of the offence (Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349 at [61]). 15The Prosecutor submitted that Mr Doueihi knowingly and deliberately undertook the actions that led to the offence. Mr Doueihi's actions were also calculated to deceive in that the additional rooms 204, 205, 206 and 207 were initially covered by a board, which meant these rooms could not be detected on any inspection of the premises during the construction or post construction inspection phases. The offence would not have been detected except for a chance inspection undertaken by Mr McClure who was investigating a complaint at the premises in relation to car parking. 16I agree with the submissions of the Prosecutor that given the positions held by Mr Doueihi in the past and after September 2012 as a councillor elected to the prosecuting council, Mr Doueihi would or ought to have known the gravity of his actions and that his actions were not legal. As a member of the prosecuting council for a number of years including his re-election during the period of the offence in September 2012, I infer that Mr Doueihi was very likely to have been involved in development approval decisions and decisions made about enforcement of environmental planning laws and was aware of the necessity to comply with the EPA Act. In a prosecution under the Protection of the Environment Operations Act 1997, Cessnock City Council v Quintaz Pty Ltd; Cessnock City Council v McCudden [2010] NSWLEC 3; (2010) 172 LGERA 52 the Court took into account the defendant's position as a councillor in finding that he had knowledge of the relevant regulatory provisions and the need to comply with these at [124]. Similar observations apply also in this matter. 17I find that Mr Doueihi's actions were deliberate, as he admitted in the record of interview on 11 March 2013. Although not part of the charge period of 8 June 2012 (the date development consent was granted) to 24 October 2012 the SOAF refers to the fact that work commenced before development consent was granted as detected by a Council officer on 19 March 2012 (par 16). Discussions were held with Mr Doueihi resulting in him lodging an amended plan for the second floor which provided for four fewer rooms to be constructed. Mr Doueihi was well and truly aware of what the Council consented to at the time development consent was granted and that did not include the four additional rooms which he constructed. 18Whether Mr Doueihi set out to mislead through covering up the doors of the four additional boarding house rooms as referred to in par 21 of the SOAF is not established from the bare facts relied on by the Prosecutor. The factual circumstances required to establish that matter whether directly or by inference must be established beyond reasonable doubt which standard has not been met in this regard. 19Mr Doueihi's counsel submitted without any evidence such as an affidavit from Mr Doueihi that this was his first commercial development and he acted in ignorance. I do not accept that submission from the bar table alone as explaining Mr Doueihi's actions. As I have found above the inference arises that he had knowledge from his position as a councillor that his actions were unlawful.

Reasons for committing the offences 20The reason for committing an offence is an objective circumstance relevant to the evaluation of culpability in the commission of the offence (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366). 21The reason for committing this offence was economic. The Prosecutor submitted that the Court can draw an inference that Mr Doueihi stood to capitalise on his investment (the premises) by ignoring the conditions of consent. In his interview with Mr Morley, Council officer, Mr Doueihi acknowledged that he received money from renting the additional units (SOAF par 25). That is an aggravating factor as I discuss below.

Aggravating factors 22Section 21A(2) of the CSP Act identifies aggravating factors to be considered when sentencing. 23The Prosecutor submitted there were aggravating factors. The offence was committed for financial gain (s 21A(2)(o)). That many offences of this kind involve financial gain through property enhancement does not undermine the importance of this as an aggravating factor contrary to what Mr Doueihi's counsel appeared to suggest. 24The Prosecutor also submitted that Mr Doueihi abused a position of trust or authority in relation to the victim being the prosecuting council (s 21A(2)(k)). Mr Doueihi had been a Deputy Mayor and councillor of Burwood Council in the past and was re-elected to the Council in September 2012 and presently serves as Deputy Mayor (SOAF par 1 and 2). He occupied a position of trust as a councillor, which he breached by his actions which harmed the Council. There is no suggestion, and it was not pressed by the Prosecutor, that Mr Doueihi acted improperly in any of his functions as a councillor. He acted as a private citizen in seeking development consent. I do not consider his behaviour can be described as an abuse of a position of trust in these circumstances. I have already observed above that someone in his position as a former and current councillor should have known better.

General deterrence 25Sentences imposed in relation to environmental offences must embrace powerful considerations of general deterrence: see Axer per Badgery-Parker J at 367. In Axer, Mahoney J stated at 359: The quantum of the fines which the legislation allows to be imposed has no doubt been fixed not merely to indicate the seriousness with which such pollution is regarded but also to deter those engaged in such activities and to procure that they will take the precautions necessary to ensure that it does not occur. 26This is an important consideration in this matter given the very large volume of development that occurs in this state and the importance of enforcing the EPA Act so that there is a level playing field for all under that system.

Specific deterrence 27In Veen v The Queen (No 2) at 477 the majority judgment of Mason CJ, Brennan, Dawson and Toohey JJ stated that past criminal behaviour is relevant in sentencing: to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. 28I hold later that Mr Doueihi is unlikely to re-offend and therefore do not consider specific deterrence is relevant to this sentence.

Denunciation and Retribution 29Subsections 3A(a) and (e) of the CSP Act set out retribution and denunciation as part of the purposes of sentencing and the Court needs to take them into account. By admitting the offence Mr Doueihi has admitted that he acted deliberately. Deliberate contraventions of the EPA Act should be denounced.

Conclusion on objective gravity 30While the extent of unauthorised development is of relatively small compass compared to a number of other similar cases, objective harmfulness arose from the offence, the actions of Mr Doueihi were deliberate and I infer were done with knowledge of the requirement to comply with planning laws and carried out for financial gain. This suggests this offence is of moderate objective seriousness.

Subjective factors 31Section 21A(3) of the CSP Act identifies mitigating factors to be considered in sentencing where relevant.

Plea of guilty s 21A(3)(k) and s 22 32Mr Doueihi entered a plea of guilty on 20 September 2013, being the second occasion that the matter was before the Court. Mr Doueihi is entitled to a discount on sentence in accordance with s 22 of the CSP Act. Section 22(1)(c) of the Act allows the Court to take into account the circumstances in which the offender indicated an intention to plead guilty. The Prosecutor submitted that the strength of the prosecution case should be considered a relevant factor in assessing the discount available under s 22. While I accept that the plea of guilty was early, I agree with the Prosecutor that the circumstances suggest it was highly likely that a plea of guilty would be entered. The utilitarian value of the plea reflected in the maximum discount of 25 per cent identified in R v Thompson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [152] should be reduced.

Contrition and remorse s 21A(3)(i) 33Mr Doueihi's counsel submitted his remorse was demonstrated by the early plea of guilty and that he was instructed to inform the Court of Mr Doueihi's contrition. This Court more usually has expressions of remorse in written form and takes into account actions beyond a plea of guilty which are suggestive of remorse. An example of where the Court has taken into account actions as demonstrating remorse beyond expressions of contrition alone is Environment Protection Authority v Waste Recycling Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 at [203] to [215] albeit in a different context concerning a corporate defendant. Such action is lacking in this matter. The fact that a modification application was lodged with the Prosecutor seeking approval for the work carried out does not indicate remorse. As s 21A(3)(i) states, remorse shown by an offender can be taken into account in mitigation if the offender has provided evidence that he or she has accepted responsibility for his or her action and has acknowledged any injury, loss or damage or made reparation for that. Given that a plea of guilty is identified separately as a matter in mitigation, more than a guilty plea is generally necessary to demonstrate contrition: Environment Protection Authority v Hanna [2010] NSWLEC 98 at [68].

Defendant of good character (s 21A(3)(f)) 34Mr Doueihi is an active member of his local and church communities as attested to in the references tendered by his counsel. I accept that Mr Doueihi is of good character apart from what is clearly unfortunate, at best, behaviour giving rise to this offence. 35Mr Doueihi is 64 yrs old and came to Australia from Lebanon when he was 19 years of age. He has three grown children and five grandchildren. I am informed and accept that he has never been before a court before on any offence. I consider he is unlikely to reoffend (s 21A(3)(g)).

Evenhandedness/consistency in sentencing 36A principle of sentencing is consistency of sentencing where like cases receive like penalties. Consideration of similar cases can be of assistance in informing the range of penalty which is appropriate, subject always to the need to consider the individual circumstances of a particular case. A sentence in one case does not demonstrate the limits of sentencing discretion: Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 at [54]. 37Fortunately, no case has been found by the parties or the Court in relation to a prosecution under the EPA Act where a sitting or former councillor has been charged. The Prosecutor handed up a number of sentencing judgments for similar offences of carrying out work without development consent: Willoughby City Council v Revelas [2004] NSWLEC 138; (2004) 140 LGERA 348; Franks v Woollahra Municipal Council [2007] NSWLEC 461; Cessnock City Council v Bimbadgen Estate Pty Ltd (No 2 ) [2011] NSWLEC 140; Great Lakes Council v Spalding [2011] NSWLEC 257 and Burwood Council v Matthews. A large number of such prosecutions have been considered in this Court, as identified by Pepper J in Burwood Council v Matthews at [62]. Her Honour identified several cases where authorities have been summarised to which list I add my own in Council of Municipality of Kiama v Furlong [2009] NSWLEC 139. I have reviewed the many cases referred to and do not intend to identify these in further detail as none in my view are directly comparable to this case.

Conclusion on penalty 38I consider a penalty of $50,000 is warranted which I will reduce to $43,000 in light of the number of mitigating factors. 39Mr Doueihi is aware that he may be ordered to pay the Prosecutor's costs pursuant to s 257B of the Criminal Procedure Act 1986.

Order 40The Court makes the following orders: (1)The Defendant Mr Doueihi is convicted of the offence as charged. (2)The Defendant is fined the sum of $43,000. (3)The Defendant is to pay the Prosecutor's costs of the proceedings as agreed or assessed.

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: 19 November 2013

(1993) 113 LGERA 357

(2006) 145 LGERA 234

(2006) 146 LGERA 349

(2006) 148 LGERA 299

(2006) 145 LGERA 189

(2004) 140 LGERA 348

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