Burwood Council v Mehedin Abdul-Rahman

Catchwords

(2006) 145 LGERA 234 Burwood Council v Abdul-Rahman (No 2) [2017] NSWLEC 177 Burwood Council v Doueihi [2013] NSWLEC 196(2008) 163 LGERA 71 Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289(2006) 148 LGERA 299 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242(2006) 145 LGERA 189 Gore v The Queen [2010] NSWCCA 330(2010) 208 A Crim R 353 Harris v Harrison [2014] NSWCCA 84(2014) 86 NSWLR 422 Heatscape Pty Ltd v Mahoney (No 2) [2016] NSWLEC 45(2016) 217 LGERA 332 Hijazi v Georges River Council [2020] NSWLEC 36 Hoare v The Queen [1989] HCA 33(1989) 167 CLR 348 Johnson v The Queen [2004] HCA 15(2004) 78 ALJR 616 Jones v R [2010] HCA 45(1988) 166 CLR 59 Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132(2002) 122 LGERA 89 Mouawad v The Hills Shire Council [2013] NSWLEC 165(2013) 199 LGERA 28 Muldrock v The Queen [2011] HCA 39(2011) 244 CLR 120 Pearce v The Queen [1998] HCA 57(1998) 194 CLR 610 Pesic v Sutherland Shire Council [2019] NSWLEC 38 Pham v R [2015] HCA 39

Judgment (45 paragraphs)

[1]

9] HCA 33; (1989) 167 CLR 348 Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 Jones v R [2010] HCA 45; (2010) 242 CLR 520 Ku-ring-gai Council v Baynie [2017] NSWLEC 172 Lane Cove Council v Wu [2011] NSWLEC 43 Liverpool City Council v Leppington Pastoral Co Pty [2010] NSWLEC 170 Liverpool City Council v Maller Holdings Pty Ltd (No 2) [2015] NSWLEC 48 Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89 Mouawad v The Hills Shire Council [2013] NSWLEC 165; (2013) 199 LGERA 28 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 Pesic v Sutherland Shire Council [2019] NSWLEC 38 Pham v R [2015] HCA 39; (2015) 256 CLR 550 Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 R v Dodd (1991) 57 A Crim R 349 R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 R v Nichols (1991) 57 A Crim R 391 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Oliver (1980) 7 A Crim R 174 R v Visconti [1982] 2 NSWLR 104 R v Wheeler [2000] NSWCCA 34 R v Wickham [2004] NSWCCA 193 Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 Water NSW v Barlow [2019] NSWLEC 30; (2019) 244 LGERA 1 Zirilla v The Queen [2014] HCA 2; (2014) 253 CLR 58 Category: Sentence Parties: Burwood Council (Prosecutor) Mehedin Abdul-Rahman (Defendant) Representation: Counsel: S Shneider (solicitor) (Prosecutor) J Papafotiou (solicitor) (Defendant)

[2]

Solicitors: Houston Dearn O'Connor (Prosecutor) James Papas Solicitors (Defendant) File Number(s): 2021/12869; 2021/12870; 2021/12871 Publication restriction: Nil

[3]

Abdul-Rahman Carries Out Unlawful Residential Development

On 5 March 2021 Mehedin Abdul-Rahman pleaded guilty to two offences of contravening s 4.2(1) of the Environmental Planning and Assessment Act 1979 ("the EPAA") and one offence of procuring the contravention of that provision pursuant to s 9.50(3A) of the EPAA. The offences arose as a result of Abdul-Rahman undertaking development at 38 Kembla St, Croydon Park (that is, Lot 128 in Deposited Plan 785) ("the land") absent development consent as required under the applicable environmental planning instruments ("EPIs").
The applicable EPIs were the Burwood Local Environmental Plan 2012 ("BLEP"), the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, and the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017.
The first summons issued by the prosecutor, Burwood Council ("the Council"), charged Abdul-Rahman as follows ("the tree offence"): The Prosecution claims: 1. An order that Mehedin Abdul-Rahman ("the Defendant"), whose address is 89 Brunker Road, YAGOONA in the State of New South Wales, appear before a Judge of the Court to answer the charge that, between 12 March 2019 and 10 July 2019, at Croydon Park in the State of New South Wales, contrary to sections 4.2(1) and 9.50 (3A) of the Environmental Planning and Assessment Act (EP&A Act), did aid, abet counsel or procure the carrying out of development on land, namely the clearing of vegetation in a non-rural area, being development that an Environmental Planning Instrument ("EPI") provides may not be carried out except with development consent, whereas development was carried out without a development consent having first been obtained and without a development consent being in force. Particulars (a) Development being the clearing of vegetation consisting of seven trees on land located at 38 Kembla Street Croydon Park NSW 2133 and legally described as Lot 128 in Deposited Plan 785 ("the land"). (b) The EPI is the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017. (c) The clearing of vegetation on the land is permissible with the authority conferred by a development consent or a permit for the purpose of clearing vegetation as issued by Burwood Council. (d) A permit issued by Burwood Council for the clearing of vegetation is a development consent. (e) The defendant had no development consent in any form to clear the vegetation.

[4]

Legislative Framework

Section 4.2(1) of the EPAA relevantly provides that: 4.2 Development that needs consent (1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless - (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument.
Section 9.50(3A) of the EPAA states: 9.50 Offences against this Act and the regulations (3A) A person who - (a) aids, abets, counsels or procures another person to commit, or (b) conspires to commit, an offence against this Act or the regulations arising under any other provision is guilty of an offence against this Act or the regulations arising under that provision and is liable, on conviction, to the same penalty applicable to an offence arising under that provision.

[5]

Abdul-Rahman Builds a House for His Family

Abdul-Rahman is the registered proprietor of the land which he purchased in June 2019 for the purposes of renovating an existing dwelling on it in order to establish a family home for himself, his wife, and their seven children.
Under the BLEP the land is zoned R2 - Low Density Residential. This zoning permits the development of a dwelling house with consent on the land.
Between 12 March and 10 July 2019 Abdul-Rahman directed workers, namely, his friends, to clear a number of trees on the land in preparation for construction.
On 9 July 2019 Council officers attended the land in response to a neighbour's complaint regarding the removal of the trees. The officers identified the cleared trees as follows: 1. Chamaecyparis obtusa with a trunk diameter of 300mm; 2. Camellia japonica with a trunk diameter of 370mm (twin stems of 270 and 100mm); 3. Melaleuca armillaris with a trunk diameter of 530mm; 4. Cotoneaster pannosus with a trunk diameter of 2220mm; 5. Tibouchina granulosa with a trunk diameter of 350mm; 6. Callistemon viminalis with a trunk diameter of 325mm (average); and 7. Araucaria heterophylla with a trunk diameter of 390mm (average).
On 25 July 2019 Abdul-Rahman demolished the existing structures on the land. That day, Council officers again attended the land in response to a neighbour's complaint regarding the demolition works.
On 20 August 2019 Abdul-Rahman erected a building and performed other works on the land. Later that same day Council officers attended the land for a third time in response to a neighbour's complaint regarding the construction works.
On 21 August 2019 the Council issued Abdul-Rahman with a Stop Work Order and he ceased all works.

[6]

Evidence Relied Upon by the Parties

The parties relied on a statement of agreed facts in relation to each summons.
In addition, Abdul-Rahman relied upon an affidavit that he had affirmed on 9 May 2021.
The Council relied on the following affidavits: 1. an affidavit of Oliver Ellis, a Law Enforcement Officer employed by the Council, affirmed on 3 December 2020 ("Ellis affidavit"); and 2. an affidavit of Joe Lilley, a Tree Management Officer employed by the Council, sworn on 14 December 2020 ("Lilley affidavit").

[7]

The Affidavit of Abdul-Rahman

In his affidavit Abdul-Rahman deposed that: 1. he unreservedly apologised to this Court, the Council, and the relevant Council officers, for his unlawful actions; 2. he took responsibility for his "actions and [his] negligence" with respect to the matters before this Court; 3. he was willing to plant seven replacement trees in the locality in order to remediate any harm; 4. he purchased the land in June 2019 for the purposes of establishing a family home. He had borrowed $1,000,000 in order to fund the renovation of the existing dwelling on the land; 5. he had asked friends to assist in the removal of the trees on the land to "save costs" and did not "give proper attention" to obtaining Council approval to do so because he was in a "hurry" to commence the renovation of the existing dwelling; 6. after Ellis attended the land on 9 July 2019, Abdul-Rahman formed the view that the existing dwelling was structurally unsound and determined that its demolition was necessary. He contacted an architect and instructed him to prepare plans for the purposes of obtaining a complying development certificate ("CDC"). However, the certifier, SK Building Solutions, refused to assist him after learning of the unauthorised removal of the trees on the land; and 7. after he was issued with a Stop Work Order on 21 August 2019, he supervised the amendment of the development plans to comply with Council requirements.
On 4 September 2019 Abdul-Rahman applied for a building certificate with respect to the works undertaken without approval.
Abdul-Rahman's affidavit annexed the report of arborist, Scott Freeman, dated 24 April 2021 ("Freeman report"). In that report, Freeman opined that if Abdul-Rahman had applied to the Council for approval to remove the trees, there would have been no objection to their removal.
Abdul-Rahman was not cross-examined on the content of his affidavit.

[8]

The Ellis Affidavit

In his affidavit, Ellis stated that he attended the land on 9 July 2019 with Council officer Anthony Henderson following a neighbour's complaint regarding the removal of trees. Ellis observed that two workers were operating tree clearing machinery on the land and that seven tree stumps on the land appeared to have been recently cut down.
Ellis further deposed that the following exchanges took place between the Council officers and Abdul-Rahman: 1. Abdul-Rahman confirmed that the men operating the machinery were "friends of [Abdul-Rahman's] removing some trees for [him]". Abdul-Rahman also confirmed that he had directed the men to attend the land and remove the trees; 2. Abdul-Rahman told Ellis about his extensive works to the land and indicated that he had removed asbestos sheeting from the walls of the existing dwelling. Abdul-Rahman stated that the frames of that structure were termite damaged and rotten; and 3. Abdul-Rahman noted his intention to demolish the dwelling. Ellis said to him, "please make sure you make your enquiries with Council and get the relevant approvals". Abdul-Rahman responded "I will".
Ellis took 28 photographs of the site and measured the tree stump diameters. Ellis contacted Lilley who also inspected the land and the stumps.
Later that day, Ellis confirmed that Abdul-Rahman had no consent to perform the clearing works.
Ellis and Henderson again attended the land on 25 July 2019, in response to a neighbour's complaint regarding the demolition of the existing dwelling.
When Ellis and Henderson arrived on the land they observed two workers operating an excavator and loading demolished house material into a small truck on the land. Ellis took eight photographs of the demolition works.
Upon returning to the Council offices, Ellis confirmed that Abdul-Rahman had no consent to perform the demolition works.
Ellis attended the land for a third time on 20 August 2019, following another complaint by a neighbour regarding construction works on the land.
When Ellis arrived, he noticed several workers completing development works, and observed new construction including a concrete house slab, a house frame, and the concrete shell of an in-ground swimming pool. Ellis took two photographs of the works.

[9]

The Lilley Affidavit

On 9 July 2019 Lilley attended the land to observe the cleared trees. He observed that there were 15 tree stumps on the land that had the appearance of being freshly felled. Of those stumps, Lilley was able to positively identify that seven were of a size and species protected under the Burwood Development Control Plan. Lilley ascertained that none of the seven trees cleared had been declared a priority weed under the Biosecurity Act 2015 (Cth).
Lilley deposed that the seven cleared trees required consent in the form of a tree permit or development consent from Council prior to their removal. No consent to clear trees or vegetation had been granted in respect of the land.
Documents including a satellite photograph of the land and photographs of the seven tree stumps were annexed to Lilley's affidavit.

[10]

The Purposes of Sentencing

The purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 ("CSPA"): 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.

[11]

Statutory Matters Required to be Taken into Account in Sentencing

Subsections 21A(2) and (3) of the CSPA set out the aggravating and mitigating factors that the Court must consider when sentencing an offender. Relevant to the facts of this case they are as follows: 21A Aggravating, mitigating and other factors in sentencing (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: … (o) the offence was committed for financial gain… The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. (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 or Division 1A), … (m) assistance by the offender to law enforcement authorities (as provided by section 23)…
The Council bears the onus of proving beyond reasonable doubt any aggravating factor for the purpose of sentencing (Gore v The Queen [2010] NSWCCA 330; 208 A Crim R 353 at [26] and [104] and R v Wickham [2004] NSWCCA 193 at [27]). The onus of proof lies upon Abdul-Rahman, however, to establish any factor in mitigation on the balance of probabilities (Wickham at [27] and R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27]).
Importantly, the sentence to be imposed on Abdul-Rahman for his commission of the offences must be proportionate to both the objective seriousness or gravity of the offence and his subjective circumstances (Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 at 490 and Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472).

[12]

Objective Seriousness of the Offences

The objective gravity of the offences fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit insofar as the sentence must not exceed that which can be justified as appropriate or proportionate to the gravity of the crimes considered in light of their objective circumstances (Veen (No 2) and Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at 354). It fixes the lower limit because allowance for the subjective factors of the case ought not produce a sentence which fails to reflect the objective gravity or seriousness of the offences (R v Dodd (1991) 57 A Crim R 349 at 354 and R v Nichols (1991) 57 A Crim R 391 at 395).
The objective seriousness is to be determined by reference to the nature of the offences and not by reference to matters that are personal to the offender (Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27]).
A determination of the objective seriousness or gravity of the offences compels a consideration of the factors discussed below.

[13]

Nature of the Offences

The nature and purpose of the provision that has been contravened, and its place in the statutory scheme, are illustrative of the objective seriousness of an environmental offence (Bentley v BGP Properties Pty Limited [2006] NSWLEC 34; (2006) 145 LGERA 234 at [168]-[169]; Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [49]; and Chief Executive, Office of Environment and Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 at [59]).
The objects of the EPAA identify the purpose of the offence provisions as follows: 1.3 Objects of Act The objects of this Act are as follows - (a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State's natural and other resources, (b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment, (c) to promote the orderly and economic use and development of land, (d) to promote the delivery and maintenance of affordable housing, (e) to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats, (f) to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage), (g) to promote good design and amenity of the built environment, (h) to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants, (i) to promote the sharing of the responsibility for environmental planning and assessment between the different levels of government in the State, (j) to provide increased opportunity for community participation in environmental planning and assessment.
In Heatscape Pty Ltd v Mahoney (No 2) [2016] NSWLEC 45; (2016) 217 LGERA 332 the Court observed the following in respect of the environmental crime of undertaking development without consent (at [235]): 235 The offence of undertaking development without consent undermines the integrity of the system of planning and development controls enacted in the State. In short, "this system depends on persons taking steps to obey the law by ascertaining when development consent is required and then obtaining development consent before carrying out development" (Scahill at [46]. See similar statements in Gittany at [104]-[105]; Byron Shire Council v Fletcher [2005] NSWLEC 706; (2005) 143 LGERA 155 at [60]- [61]; Lane Cove Council v Wu [2011] NSWLEC 43 at [17]; Cessnock City Council v Bimbadgen Estate Pty Ltd (No 2) [2011] NSWLEC 140 at [62] and Hurstville City Council v Naumcevski [2011] NSWLEC 226 at [49]).

[14]

Maximum Penalty

The maximum penalty provided for the commission of an offence reflects Parliament's view of the seriousness of that offence (Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 and Rawson at [57]).
At the time the offences were committed, the maximum penalty for each offence was $500,000 (s 9.52(3) of the EPAA).

[15]

The Environmental Harm Caused or Likely to be Caused by the Commission of the Offences

The environmental harm caused by the commission of the offences is a central consideration in determining their objective gravity. The concept of harm in the context of environmental offences is broad (Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2006) 148 LGERA 299 at [145]-[147] and Heatscape (No 2) at [238]).
As determined above, at a minimum, the commission of the offences undermined the integrity of the system of planning and development controls enacted in this State (Lane Cove Council v Wu [2011] NSWLEC 43 at [45] and Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89 at [35]).

[16]

Harm Caused by the Commission of the Tree Offence

It was not in dispute that the Court ought to find that the removal of the seven trees from the property caused environmental harm insofar as: 1. the trees were of a size and species that were protected and none were exempt or classified as a noxious weed; and 2. seven trees were removed from the land including from the front of the property. The trees were visible from the street. Trees visible from the street provide a degree of public amenity. This amenity was destroyed, or at the very least eroded, by the removal of the trees.
The Council submitted that the environmental harm caused by the commission of the tree offence was high because the trees were natural items and because they contributed to both the private and public domain (T5:10-16). The Council relied upon the Lilley affidavit in support of its submission.
Abdul-Rahman relied upon the Freeman report to the effect that had he applied to the Council for approval to remove the trees that there would have been no objection to him doing so given that the trees were under 8m and were located within the proposed new residential building envelope. In the absence of any objection or challenge to this evidence by the Council, the Court accepts it.
Therefore, because the Council failed to adduce any evidence of actual or potential harm beyond that of amenity and the harm to the regulatory system by the commission of the tree offence, the Court finds that only minimal harm was caused by it.

[17]

Harm Caused by the Commission of the Demolition and Construction Offences

The Council accepted that any environmental harm caused by the commission of the demolition and construction offences was low. It was correct to do so.
It was agreed by the parties that there was environmental harm to the built environment insofar as the amenity of those living within the vicinity of the land had been disturbed. This was demonstrated by the fact that the development was the subject of complaints by neighbours.
Adverse impacts on a neighbour's amenity can constitute environmental harm (see Liverpool City Council v Maller Holdings Pty Ltd (No 2) [2015] NSWLEC 48).
The commission of the demolition and construction offences also caused harm to the integrity of the planning and development regime in the State (see Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 (at [104]-[105]) and Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 (at [46])).

[18]

State of Mind at the Time of the Commission of the Offences

The offences charged under the EPAA are strict liability offences, and therefore, mens rea is not an element of offences. But the state of mind of Abdul-Rahman in the commission of the offences is nonetheless relevant to the question of penalty. A strict liability offence committed intentionally, recklessly, or negligently, "exacerbates the objective culpability of the defendant" (Camilleri's Stock Feeds at 700; Gittany at [123]; and Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [98]).
Relevantly, Abdul-Rahman was not cross-examined as to his state of mind at the time of the commission of any of the offences (T4:43-45).

[19]

The Tree Offence

With respect to the tree offence, the only evidence before the Court regarding Abdul-Rahman's state of mind is that contained in his affidavit, where he deposed that he was in a "hurry" to start renovation works and was concerned about termite damage to the existing structure on the land and for that reason "did not give proper attention" to obtaining Council approval (at paragraph 7(c)).
The Council submitted that the commission of the tree offence was "at least midway on the point of seriousness having regard to penalty" due to Abdul-Rahman's state of mind when committing the offence (T5:14-8:27).
However, on the evidence before the Court no finding can be made beyond reasonable doubt that Abdul-Rahman committed the tree offence intentionally. Additionally, there was insufficient evidence to the criminal standard that he suspected or believed that he required consent to remove the trees. I therefore do not accept that Abdul-Rahman committed the tree offence recklessly. Nor was there any evidence to sustain a finding that Abdul-Rahman committed the tree offence negligently.

[20]

The Demolition and Construction Offences

It was conceded by Abdul-Rahman that he carried out the demolition and construction offences intentionally. That is, he knew that he required consent to carry out these works and had not obtained it (T11:26-31).

[21]

Abdul-Rahman's Reasons for Committing the Offences

The criminality involved in the commission of an offence is measured not only by the seriousness of what actually occurred but also by reference to the reasons for its occurrence (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at [366] and Bentley at [237]). An offence committed for financial gain is objectively more serious than one that is not.
It was agreed that Abdul-Rahman carried out the tree offence for financial gain. In his affidavit he deposed that he had hired his friends to assist in the commission of the tree offence to "save money". At the sentencing hearing, Abdul-Rahman accepted that the offence was committed for "very minor financial gain" (T10:15-22).
There is no evidence to the criminal standard that the demolition and construction offences were, however, committed to "save money".
I therefore find that only the tree offence was committed for financial gain.

[22]

Reasonable Foreseeability of the Harm Caused or Likely to be Caused to the Environment by the Commission of the Offences

For harm to be reasonably foreseeable, the precise cause of the event or events giving rise to the harm is not required to be foreseen (Environment Protection Authority v Baida Poultry Pty Ltd [2008] NSWLEC 280; (2008) 163 LGERA 71 at [31]-[32]).
It was agreed that the harm caused or likely to be caused by the commission of the offences was reasonably foreseeable.

[23]

Control Over the Causes of the Commission of the Offences

As the owner of the land and the supervisor of all works giving rise to the offences, Abdul-Rahman had complete control over the events that gave rise to the commission of the offences and any consequential harm.

[24]

Practical Measures Which Could Have Been Taken to Avoid the Harm

The Council submitted that Abdul-Rahman could have easily prevented the harm caused by his unlawful behaviour by obtaining all necessary development consents to carry out the development. I agree.

[25]

Conclusion on the Objective Seriousness of the Offences

Having regard to the circumstances of the commission of the tree offence, I find that the objective seriousness of that offence is low.
However, given my finding as to Abdul-Rahman's state of mind with respect to the demolition and construction offences, that is, that those offences were committed intentionally, the objective seriousness of those offences is moderate.

[26]

Abdul-Rahman's Subjective Circumstances

Within the limits set by the objective seriousness of the offences, the Court must take into consideration the subjective circumstances of Abdul-Rahman when determining the appropriate penalty to be imposed (Environment Protection Authority v GrainCorp Operations Limited [2019] NSWLEC 143 at [116] and [190]).
Section 21A of the CSPA, extracted above, sets out the aggravating and mitigating factors to be taken into account in this exercise. The aggravating and mitigating factors relied upon by the parties are considered below.

[27]

The Offences Were Part of a Planned or Organised Criminal Activity

The Council submitted that each of the offences were part of a planned or organised criminal activity (s 21A(2)(n) of the CSPA). There was no cogent evidence to support this submission. It is rejected.

[28]

The Offences Were Committed for Financial Gain

As discussed above, the tree offence was committed for financial gain (s 21A(2)(o) of the CSPA).

[29]

The Harm to the Environment Was Not Substantial

For the reasons explained above, the Council has failed to establish that the harm to the environment caused by the commission of the offences was substantial (s 21A(3)(a) of the CSPA).

[30]

Prior Convictions

The Council accepted that lack of prior criminality is a factor in sentencing but submitted that a lack of prior convictions should not produce a sentence that fails to address the objective seriousness of the offending.
Abdul-Rahman does not have any prior convictions. This is a mitigating factor which weighs in his favour for the purposes of the sentencing exercise (s 21A(3)(e) of the CSPA).

[31]

Assistance Provided to Authorities

Abdul-Rahman provided assistance to the Council by allowing its officers to inspect the land on the three occasions that they visited the property and in generally engaging transparently with those officers regarding the development works on the land on those occasions.
However, Abdul-Rahman's misrepresentation to Ellis that he had obtained consent for the works when he had not, together with his failure to attend several scheduled interviews with Council officers, means that full weight cannot be given to this factor in mitigation (s 21A(3)(m) of the CSPA).

[32]

Early Pleas of Guilty

A plea of guilty entered by a defendant at the first available opportunity can attract a maximum discount of 25% off the penalty imposed as a reflection of the utilitarian value of the pleas to the criminal justice system (ss 21A(3)(k) and 22 of the CSPA and R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 [160]). What is regarded as an early plea will vary in the circumstances of the case (Thomson at [160(iii)]).
Abdul-Rahman entered a plea of guilty to each of the offences on the first occasion the matter was before this Court. Therefore, the full discount of 25% is warranted.

[33]

Contrition and Remorse

Pursuant to s 21A(3)(i) of the CSPA, remorse will only be a mitigating factor 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).
In Waste Recycling Preston J stated (at [203], and see also at [204]-[214]): 203 Contrition and remorse will be more readily shown by the offender taking actions, rather than offering smooth apologies through their legal representatives…
In addition to entering an early plea of guilty, in his affidavit Abdul-Rahman stated that he unreservedly apologised to the Court, the Council, and the relevant Council officers (see T9:36-39). In that affidavit he also took responsibility for his unlawful acts. In addition, he has offered to plant and care for seven trees in his locality as a means of remediation for the tree offence.
The Court also notes that Abdul-Rahman was present at the sentencing hearing (T9:46-50).
I find that Abdul-Rahman has expressed genuine and sincere remorse and take this factor into account.

[34]

Likelihood of Reoffending and Prospects of Rehabilitation

As stated above, Abdul-Rahman has no prior convictions and has expressed contrition and remorse. I find that the likelihood of Abdul-Rahman reoffending is very low and that he has good prospects of rehabilitation (s 21A(3)(g) and 21A(3)(h) of the CSPA).

[35]

Abdul-Rahman is of Good Character

I find that but for the commission of these offences, Abdul-Rahman is of good character (s 21A(3)(f) of the CSPA).

[36]

The Offences Could Have Been Prosecuted in the Local Court

The offences could easily have been prosecuted in the Local Court. I have taken this matter into account (Harris v Harrison [2014] NSWCCA 84; (2014) 86 NSWLR 422 at [92]).

[37]

General and Specific Deterrence

The Court is required to take into account both specific and general deterrence (Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 at 569 per Brennan J). One of the purposes of the Court in imposing a sentence is to prevent crime by deterring the offender and other persons from committing similar offences. This purpose is enshrined in s 3A(b) of the CSPA (Gittany at [188] and [192] and Environment Protection Authority v Rands [2019] NSWLEC 23 at [161]).
The penalty imposed by the Court must serve as a general deterrent (Environment Protection Authority v Crown in the Right of New South Wales (Office of Environment and Heritage) [2019] NSWLEC 66 at [175]-[177]). General deterrence is vital "to ensure that the penalty imposed acts to deter those who might engage in similar activities from committing like offences" (Mouawad v The Hills Shire Council [2013] NSWLEC 165; (2013) 199 LGERA 28 at [188] and see also Axer at 359).
In Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278 Preston J discussed general deterrence in the context of environmental offending in the following terms (at [66]-[68]): 66 The sentence must also serve as a public deterrent. It is the duty of the Court to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who might otherwise be tempted by the prospect that only a light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597-598. 67 This factor is particularly relevant to environmental offences. Persons will not be deterred from committing environmental offences by nominal fines: Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 at 354; and Director General of National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 (27 September 2002) at [85] and [93]. 68 The deterrent effect of a fine must send an important message that laws requiring the conservation of the environment and compliance with approvals to carry out activities that may harm the environment, must be complied with. Also, the community must be satisfied that, by the Court's sentence, the offender is given his just desserts.
More apposite are the remarks made by the Court recently in Chahoud v Penrith City Council [2020] NSWLEC 167, a class 6 severity appeal from a Local Court sentence imposed for four offences of carrying out prohibited development contrary to s 4.3(a) of the EPAA. The offences related to Chahoud's construction of a large shed on her land and the use of that land as a truck depot absent the requisite consent. In considering the application of general deterrence to the facts of that case, the Court observed that (at [119]): 119 The Court accepts that embedded within the determination of the appropriate sentence to be imposed on Chahoud must be an element of general deterrence to ensure that members of the community are dissuaded from engaging in development and use of land absent obtaining the necessary approvals. Put bluntly, persons must be deterred from carrying out activities on land by reason of erroneous belief that because they own it, they can do what they want with it. This attitude is anathema to the statutory regime governing land use and development in New South Wales.

[38]

Retribution and Denunciation

The Court must impose a sentence that achieves the purposes of denouncing the conduct the subject of the offences and making Abdul-Rahman accountable for his actions (Pesic v Sutherland Shire Council [2019] NSWLEC 38 at [41]).

[39]

Consistency in Sentencing

The task of the sentencing court is to seek evenhandedness in the imposition of a sentence (R v Oliver (1980) 7 A Crim R 174 at 177 and R v Visconti [1982] 2 NSWLR 104 at 107C). However, care must be taken in achieving consistency. There is always difficulty comparing the penalty in one case with that in another because of the wide divergence of facts and circumstances in each (Axer at 365; Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 at [54]-[55]; Barbaro v The Queen; Zirilla v The Queen [2014] HCA 2; (2014) 253 CLR 58 at [28] and [40] and [41]; and Pham v R [2015] HCA 39; (2015) 256 CLR 550 at [28]-[32]). The sentence imposed in a single case does not demonstrate the limits of a sentencing court's discretion (Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at [35] and Environment Protection Authority v Barnes [2006] NSWCCA 246 at [79]).
The Council provided to the Court a table of comparative cases involving breaches of s 4.2(1) and the former s 125(1) of the EPAA to guide the Court in determining an appropriate sentence for Abdul-Rahman. The maximum penalty applicable in each case varies. The decisions are summarised as follows: 1. in Burwood Council v Jarvest Pty Ltd [2011] NSWLEC 109 Sheahan J fined the defendant $45,000 (after the application of a 25% discount for an early guilty plea, noting that the maximum penalty was $1,100,000) for the removal of 13 native trees. His Honour took into account the objective seriousness of the offence; the actual environmental harm caused; and the defendant's voluntary undertaking of remedial planting; 2. Burwood Council v Pratelli [2014] NSWLEC 28 concerned unlawful development in contravention of s 125(1) of the EPAA in circumstances where the defendant was an owner-builder who relied on erroneous advice provided by another builder. The Chief Judge found that the objective gravity of the offence was low; no actual harm was occasioned; the defendant had no heightened state of mind and did not profit from the commission of the offence; the defendant had no prior convictions; and steps were taken to rectify the non-compliance. His Honour fined the defendant $9,750 (after the application of a 25% discount for the entry of a guilty plea at first instance, noting that the maximum penalty was $1,100,000); 3. in Burwood Council v Doueihi [2013] NSWLEC 196; (2013) 200 LGERA 152 Pain J fined the defendant $43,000 (after the application of a discount for the entry of a guilty plea on the second instance the matter was before the court, noting that the maximum penalty was $1,100,000) for the erection of additional rooms in a boarding house in non-compliance with a development consent in contravention of s 125(1) of the EPAA. Her Honour determined that the objective gravity of the offence was moderate; the defendant had knowledge of the development control regulatory scheme as a current elected councillor; the offence was committed for financial gain; and there was environmental harm in relation to the impact on amenity to other residents in the locality of the property; 4. Ku-ring-gai Council v Baynie [2017] NSWLEC 172 concerned contraventions of s 125 of the EPAA for carrying out development on a heritage item without consent. Pain J found that actual harm was caused by the commission of the offences; that the first and second offences were at the low end of moderate objective seriousness; that the third offence was at the high end of low objective seriousness; and that one of the offences was committed intentionally. Her Honour fined the defendant $77,000 (after the application of a 25% discount for an early guilty plea, noting that the first offence carried a maximum penalty of $1,100,000 and that the second and third offences carried maximum penalties of $500,000); 5. in Burwood Council v Abdul-Rahman (No 2) [2017] NSWLEC 177 Moore J fined the defendant (who, for the avoidance of doubt, is not the current defendant) $50,000 for the removal of one tree (noting that the maximum penalty was $500,000). No discount was applicable as the defendant had pleaded not guilty. His Honour had regard to the defendant's significant experience with the development approval process and prior convictions for the removal of trees, as well as the absence of contrition or remorse; 6. Cumberland Council v Badoui Habib [2017] NSWLEC 18 concerned breaches of ss 76A and 125(1) of the EPAA for unlawful building works consisting of a two storey dwelling, garage, and granny flat. Robson J fined the defendant a total sum of $105,000 (after the application of a 25% discount for the early entry of a guilty plea, noting that the maximum penalty for each offence was $500,000), having regard to the fact that the offences were of moderate objective seriousness; there was no actual environmental harm; the defendant completed the building works in the knowledge that the requisite development consent had not been obtained; and the defendant had no prior convictions; 7. in Pesic, a class 6 appeal against severity, the Chief Judge affirmed the Local Court's sentence of $7,600 (noting that the maximum penalty was $500,000) for the defendant's development of a vehicle repair station without consent in breach in breach of s 76A(1)(a) and s 125 of the EPAA in circumstances where his Honour determined that the offence was of low objective seriousness and the defendant had committed the offence recklessly; 8. in Hijazi v Georges River Council [2020] NSWLEC 36 Pain J considered a class 6 severity appeal regarding three offences against s 4.2 of the EPAA arising from the defendant's construction of a swimming pool and elevator shaft without consent. The offences were found to be at the high end of the low range of objective seriousness, having been committed deliberately. No actual harm was demonstrated. The Court imposed total penalties of $80,000 (noting that the maximum penalty for each offence was $500,000); 9. as referred to above, the decision in Chahoud concerned a class 6 appeal arising out of contraventions of s 4.3(a) of the EPAA for the unlawful construction of a shed. The Court imposed a total fine of $51,000 (after the application of a 20% discount for an early guilty plea, noting that the maximum penalty for each offence was $500,000) having regard to the Court's findings that the offences were of low to moderate objective seriousness; were committed for financial gain; and were partially committed recklessly; and 10. in Chief Executive, Office of Environment and Heritage v Parrish & Son Pty Ltd [2020] NSWLEC 47 Moore J determined the appropriate sentence to be imposed for the defendant company's removal of a number of native trees. His Honour found that the offending was within the mid to high range of objective seriousness; that substantial environmental harm had not been established; that the clearing was carried out for financial gain; and that the defendant had not demonstrated contrition or remorse. Moore J fined the defendant $75,000 (after the application of a 25% discount for an early guilty plea, noting that the maximum penalty was $1,100,000).

[40]

Financial Means of Abdul-Rahman

Abdul-Rahman deposed that he had borrowed $1,000,000 to purchase the land and fund the intended development. He annexed a Commonwealth Bank home loan summary statement for the period 1 July to 31 December 2020 to this effect to his affidavit.
Abdul-Rahman's company was wound up as a result of the COVID-19 pandemic and he earned no income for the 2019 and 2020 financial years (T12:2-7). An Australian Taxation Office Notice of Assessment for the 2019 financial year annexed to his affidavit evidenced that he earned no income in the 2019 financial year. Abdul-Rahman restarted his company in February 2021 and currently earns an income (T12:2-7).
The above evidence is, however, in my view, insufficient to ground any finding that Abdul-Rahman will be unable to pay any monetary penalty likely to be imposed upon him by this Court (see s 6 of the Fines Act 1966).

[41]

Costs

In the exercise of its sentencing discretion in relation to the quantum of any monetary penalty to be imposed on Abdul-Rahman, the Court can take into account the costs that an offender may be ordered, or agrees, to pay (Barnes at [78] and [88]). In doing so, the Court must be mindful that the payment of the Council's costs is not a reason for reducing any penalty to be imposed in a particular case lower than that suggested by the general pattern of sentencing for the relevant offence (Liverpool City Council v Leppington Pastoral Co Pty [2010] NSWLEC 170 at [50]).
The Court therefore takes into consideration that the Council will be awarded its costs of the proceedings as agreed or assessed pursuant to s 257B of the Criminal Procedure Act 1986.

[42]

Totality Principle

The totality principle is a relevant consideration when determining, as with the present proceedings, an aggregate penalty in sentencing for multiple offences (Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 62 to 63; Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [40]; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [18]; and Water NSW v Barlow [2019] NSWLEC 30; (2019) 244 LGERA 1 at [111]-[112]). The task of the Court is to ensure that the overall sentence is neither too harsh nor too lenient.
Care must nevertheless be taken "to ensure that any adjustment of individual sentences does not cause the aggregate sentence not to reflect the total criminality of the offender's conduct or the sentence for any individual offence to become disproportionate to the objective gravity of that offence" (Rawson at [222]). The identified risk is that if "sentences are reduced substantially, offenders may view that they can escape punishment for successive deliberate discrete offences" (Gittany at [199] and [201]; R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 at [46]; and R v Wheeler [2000] NSWCCA 34 at [36]-[37]). That is to say, the application of the totality principle must not cause public confidence in the administration of justice to be undermined by any perception that "what is in effect being offered is some kind of discount for multiple offending" (R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [18]).
The principle applies with different force where the penalty imposed is a fine. In Camilleri's Kirby P (as he then was) said (at 704): The principle of totality is applicable where the penalty imposed is by way of fine: see R v Sgroi (1989) 40 A Crim R 197 at 203. However, it may be that the principle of totality may not have the same force in the case of the imposition of fines, as opposed to the imposition of imprisonment where it has a special operation: see R v Brown (1982) 5 A Crim R 404 at 407.
The tree offence is of a slightly different character to the demolition and construction offences having been charged as an offence of procuring a contravention of s 4.2(1) of the EPAA pursuant to s 9.50(3A) of that Act. However, all three offences involve a breach of s 4.2(1) of the EPAA and are related to the same course of conduct, that is, Abdul-Rahman's development of the land for the purposes of the construction of a new dwelling.

[43]

Appropriate Sentence

Having regard to the objective seriousness of the commission of the offences and the mitigating subjective factors in favour of Abdul-Rahman, together with the penalties imposed in the relevant comparable cases, I find that the imposition of a monetary penalty is warranted for each offence as follows: 1. in the tree offence a fine of $20,000; 2. in the demolition offence a fine of $30,000; and 3. in the construction offence a fine of $30,000.
Each penalty must be discounted by 25% for the utilitarian value of Abdul-Rahman's plea of guilty at the earliest available opportunity as follows: 1. in the tree offence a fine of $15,000; 2. in the demolition offence a fine of $22,500; and 3. in the construction offence a fine of $22,500.
After the application of the totality principle, the penalties for the commission of the demolition offence and the commission of the construction offence should be further reduced to $15,000 and $10,000, respectively.
The total monetary penalty imposed on Abdul-Rahman for the commission of the three offences is therefore $40,000.

[44]

Orders

In conformity with the reasons given above, the Court makes the following orders: Proceeding 12869/2021 1. Abdul-Rahman is convicted as charged; 2. Abdul-Rahman is fined the sum of $15,000. Proceeding 12870/2021 1. Abdul-Rahman is convicted as charged; 2. Abdul-Rahman is fined the sum of $15,000. Proceeding 12871/2021 1. Abdul-Rahman is convicted as charged; 2. Abdul-Rahman is fined the sum of $10,000. Proceeding 12869/2021, 12870/2021, and 12871/2021 1. pursuant to s 257B of the Criminal Procedure Act 1986 Abdul-Rahman is to pay the Council's costs of the proceedings as agreed or assessed under s 257G of that Act; and 2. the exhibits are to be returned.

[45]

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: 20 May 2021

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (45 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (84)

Cited By (5)