Carlino v Leichhardt Municipal Council

4 Section 125(1) of the EP&A Act relevantly provides: Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Director-General, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act.

5 The maximum penalty for an offence against this section is a fine of $1,100,000: EP&A Act, s 126. 126 Penalties (1) A person guilty of an offence against this Act shall, for every such offence, be liable to the penalty expressly imposed and if no penalty is so imposed to a penalty not exceeding 10,000 penalty units and to a further daily penalty not exceeding 1,000 penalty units. (2) A person guilty of an offence against the regulations is, for every such offence, liable to: (a) the penalty (not exceeding 1,000 penalty units) expressly imposed by the regulations, or (b) if no such penalty is imposed, to a penalty not exceeding 1,000 penalty units. 6 Pursuant to s 127(3) of the EP&A Act, however, the maximum monetary penalty that the Local Court Magistrate could impose in respect of this offence was 1,000 penalty units, being $110,000: Crime (Sentencing Procedure) Act 1999 (NSW), s 17. 127 Proceedings for offences … (3) If proceedings in respect of an offence against this Act are brought in a Local Court, the maximum monetary penalty that the court may impose in respect of the offence is, notwithstanding any other provisions of this Act, 1,000 penalty units or the maximum monetary penalty provided by this Act in respect of the offence, whichever is the lesser.

7 On 1 October 2004, Magistrate Seagrave convicted the offender and fined him the sum of $30,250 and ordered him to pay court costs of $63.00 and the costs of the prosecutor in the agreed sum of $3,800.

8 The task of the court in these proceedings is to re-exercise the sentencing discretion and determine the appropriate penalty for the offence.

9 On 15 February 2001, a development application was lodged with the Council for alterations and additions to premises at 17 Ballast Point Road, Birchgrove. The offender was the nominated builder. The development application sought approval, inter alia, for the construction of a garage fronting Wharf Road at the rear of the property. The garage was proposed to be excavated into the stone retaining wall which formed the Wharf Road frontage. 10 Relevantly, Wharf Road is part of a conservation area under the Leichhardt Local Environment Plan 2000 (the "LEP"). In addition, Development Control Plan 21 (DCP 21) specifically applies to Wharf Road. It states: Wharf Road is of high value as one of the major surviving largely in tact Victorian Federation waterfront streets in Sydney, is the most significant surviving waterfront streetscape in the Leichhardt area on Sydney Harbour, and the controls in this DCP are aimed at conserving the established character of the street and allowing change to take place that fits with the character. 11 Further, in relation to garages and parking, DCP 21 refers to achieving a balance between the conservation of the street parking and permitting off street parking, as well as minimising the impact of parking on streetscape and heritage values, view lines and landscaping. Specifically, DCP 21 provides that where Wharf Road serves houses that front Ballast Point Road, any garaging on Wharf Road must "substantially retain existing rock faces and stone retaining walls". 12 On 14 August 2001, the Council granted the development consent (DA 2001/80) although it imposed condition 3(a) which required the deletion of the proposed garage and basement area fronting Wharf Road from the plans. Condition 3(a) states: The proposed garage and basement area fronting Wharf Road and its stairway for internal access form the ground floor shall be deleted from the plans. 13 On 20 September 2001, the owners of the premises lodged an application under section 96 of the EP&A Act seeking, inter alia, modification of the consent by deletion of condition 3(a); in effect, seeking to re-instate the garage fronting Wharf Road that had originally been proposed. 14 On 3 April 2002, the Council refused the s 96 application. In particular, the Council opposed the excavation of the garage in the Wharf Road frontage on the ground that it would "have an excessive impact on the conservation significance of the stone wall, further degenerating from the street, and [would] have a negative impact on the Heritage Items in the vicinity, and [did] not comply with the Development in the Vicinity of a Heritage Item provisions of clause 16(7) of LEP 2000". As a further ground, the Council stated the proposed garage would "have an unacceptable impact on the conservation significance of the stone wall fronting Wharf Road, [and did] not comply with the objectives of DCP 21". 15 In response, on 31 July 2002, the owners lodged an appeal to the Land and Environment Court against the Council's refusal of the s 96 application. 16 On 23 December 2002, Commissioner Murrell upheld the appeal and issued a consent subject to conditions. The conditions, which were imposed with respect to the construction of the garage, were those which had been agreed upon by the heritage consultants engaged by the respective parties. In particular, condition 3(a) of the original Development Application was deleted and condition 3(d) was modified to permit the construction of the garage in accordance with the heritage consultants' requirements. Those requirements included the retention of the stone retaining wall, except for the garage opening.

17 On 19 September 2003, Mr Geoff Lussick, a Leichhardt Council Officer, attended the site in response to a complaint and saw that the stone wall on Wharf Road had been demolished along the entire frontage of the property and had been replaced by a garage and a concrete block wall, and the sandstone blocks were stacked on the verge. At that time, the offender informed Mr Lussick that he proposed to clad the concrete block wall using some of the sandstone blocks which had been split. 18 Following that inspection, the offender was charged and subsequently pleaded guilty to breaching conditions 3(b), 3(c) and 3(g) of the modified development consent. Those conditions are as follows:

· Condition 3(b): Construction of the new opening shall be done so as to retain as much as possible the existing wall in situ. · Condition 3(c): Any stone removed shall be carefully demolished in whole blocks, protected and stored for reconstruction. Any surplus stone shall be reused on site. · Condition 3(g): The threshold to the garage shall consist of scabbled natural stone between the existing footpath and the line of the garage door.

19 The owners, the principal certifying authority and the owners' architect were informed of the non-compliance with the modified development consent by a letter dated the 14 September 2003. The letter directed that the work comply with the development consent, and where this was no longer possible, a further s 96 modification of the consent to be obtained before work was resumed. 20 In response to a further s 96 application, on 14 September 2004 the Council issued the Notice of Determination of Modification of Development Consent which requires a 1.9 metre wide section of the existing concrete block wall, being the section closest to the eastern boundary, to be demolished and rebuilt in a location further into the front setback of the property. In addition, pursuant to this consent, the remainder of the new concrete block wall is to be retained and a stone facia is to be affixed to the face of the entire concrete block wall using cut sections of the existing stone.

Sentencing Considerations 21 The primary consideration in sentencing is the objective gravity or seriousness of the offence: Fletcher Constructions Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 77-81; Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng)(1999) 90 IR 464 (at 474). A number of factors indicate the seriousness of the offence in question.

22 Firstly, the actual or likely consequences of a breach may be taken into account in assessing the gravity of the offence: Hannah v Wonah Pty Ltd (1992) 34 AILR 333; WorkCover Authority of New South Wales (Inspector Kelsey) v University of Sydney [1977] NSWIRComm 44 at [10]. Accordingly, in Camilleri's Stock Feed Pty Limited v Environment Protection Authority (1993) NSWLR 683 at 698, Kirby P, with whom Campbell and James JJ agreed, said: While it is the function of the Court itself to assess the seriousness of the offence in question, the maximum penalty available for an offence reflects the "public expression" by parliament about the seriousness of the offence: R v H (1980) 3 A Crim R 53 at 65. Here, the maximum penalty is $125,000. Such a large penalty indicates the gravity of the offence as perceived by the community… The task of the court is to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the scale of penalty set by the legislature from zero to the maximum. 23 As noted above, the maximum penalty for an offence against s 125(1) of the EP&A Act is a fine of $1,100,000: EP&A Act, s 126. However, in this case the maximum monetary penalty that Magistrate Seagrave could impose was 1,000 penalty units, being $110,000: EP&A Act, s 127(3). Thus, in considering the seriousness of the offence, it must be determined whether the relevant maximum penalty is the maximum penalty set for the offence of $1,100,000 or the jurisdictional limit of $110,000. 24 In Bayley v Leichhardt Municipal Council [2005] NSWLEC 34, Bignold J considered this issue and held (at par [8]-[9]): The EP&A Act , s 126(1) prescribes a maximum penalty not exceeding 10,000 penalty units ($1.1 million) where no other penalty is expressly imposed (as is the case here), but the EP&A Act , s 127(3) stipulates that the maximum monetary penalty that may be imposed in respect of proceedings brought in the local court is 1,000 penalty units (ie $110,000). Accordingly, the penalty of $27,500 imposed by Magistrate Seagrave in the present case is to be appreciated in light of the prescription of $110,000 as the maximum penalty for the admitted offence. 25 However, in R v Luong Doan (2000) 40 NSWLR 115 the New South Wales Court of Criminal Appeal (NSWCCA) held to the contrary (at 123): …where the maximum applicable penalty is lower because the charge has been prosecuted within the limited summary jurisdiction of the Local Court, that court should impose a penalty reflecting the objective seriousness of the offence …taking care only not to exceed the maximum jurisdictional limit. 26 This decision, as a decision of the NSWCCA, is binding upon me. Thus, I accept that the Court of Criminal Appeal decision of R v Doan states the relevant principle, which I have no option but to follow and apply. It must be noted, however, that in Bayley Bignold J's attention was not directed to R v Doan by either of the parties.

27 In this case, therefore, the maximum penalty of $1,100,000 for an offence against s 125(1) of the EP&A Act reflects the public expression by Parliament of the seriousness of the offence: Camilleri's Stock Feeds Pty Ltd at 698. 28 In addition, the following circumstances highlight the seriousness of the offence in this case. The offender was fully aware of the conditions of the consent given that it was not a consent of the Council, but of the Court. Further, in contravening the consent, the offender had complete disregard to the planning law and also for the legitimate interests of the adjoining neighbours. Moreover, as Mr T G Howard submits on behalf of the Council, the offender contravened the very conditions which, it may be inferred, gave the Court sufficient comfort to approve the construction of the garage. Finally, although the most recent modification consent (allowing use of the stone blocks in front of the concrete block wall) may ameliorate some of the actual harm caused by the contravention, that consent neither minimises nor diminishes the actual breach and permanent harm which still remains. 29 Magistrate Seagrave held that the offence was a serious breach in the mid range. She found that it was clear that the grant of conditional consent by Commissioner Murrell was "concerned to preserve the conservation significance of the stone wall by requiring the construction of the garage to retain, where possible, the existing stone wall in situ". Magistrate Seagrave accepted that the offender's explanation that the breaches were not deliberate, arising in the course of construction. She also found, however, that "the breaches consist of a considerable recklessness in relation to quite strict conditions of the modified development consent". 30 I accept both the Council's submissions and the findings of Magistrate Seagrave and find that all of the above factors highlight the seriousness of the offence. 31 General deterrence is also a major consideration in the imposition of penalties for environmental offences: Axer Pty Limited v Environment Protection Authority (1993) 113 LGERA 357 at 359; Camilleri's Stock Feeds Pty Ltd at 701; Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay)(2000) 49 NSWLR 61. Thus, the penalty imposed must deter not only the offender, but also those engaged in similar activities, from committing like offences and also to procure that they will take the precautions necessary to ensure that offences do not occur and the environment is not exposed to a risk of harm: Axer at 359. For strict liability offences, however, care must be taken to ensure that the penalty imposed does not cause the offender to shoulder an unfair burden of community education: Walden v Hensler (1987) 163 CLR 561 at 570. 32 Section 125 of the EP&A Act prohibits people from offending against a direction or prohibition provided for under the Act. Section 76A(1)(b) of the EP&A Act provides that if an environmental planning instrument provides that specified development may not be carried out except with consent, a person is prohibited from carrying out that development unless the development is carried out in accordance with the consent and the instrument. Critically, the planning system as a whole would be rendered ineffective if developments were allowed to continue without or, in contravention of, development consents: Mosman Municipal Council v Menai Excavations Pty Limited (2002) 122 LGERA 89. 33 In Keir v Sutherland Shire Council [2004] NSWLEC 754, which also concerned an appeal against severity of sentence for a breach of s 76A(1)(b), McClellan J highlighted the particular need for general deterrence in relation to contraventions of development consents. Relevantly, his Honour stated (at par [20]) that the Court must "impose a penalty which is not only appropriate, with respect to the actions of [the offender], but also sends a strong warning to builders and other who carry out development work that a breach of the law will be visited with significant financial consequences". 34 Following McClellan J in Keir, I find that in this case general deterrence is an important factor in sentencing for an offence of this kind. In particular, there is a need to protect the public interest by ensuring that conditions of consent seeking to minimise the impact of development are observed. 35 Similarly, specific deterrence is also an important consideration as it aims to deter the offender from repeating the environmental offence that has been committed. The Council submits a risk of re-offending still exists. In particular, the Council submits that due to the reckless nature of the contravention, Mr Carlino needs to be made aware that, when working in an area where environmental laws and approvals operate to protect the environment, those laws and approvals must be complied with and appropriate precautions taken: Axer at 359.

36 I accept that the risk of Mr Carlino re-offending is low. However, since he continues to work in an area in which laws enacted to protect the environment operate, the penalty should reflect some element of specific deterrence. 37 A further consideration is the principle of even-handedness, which requires the Court to consider any pattern in sentencing for the particular offence in order to pursue a consistent approach in the imposition of penalties. Street CJ described this consideration in R v Visconti (1982) 2 NSWLR 104, where his Honour quoted a passage from his earlier judgment in R v Oliver (1980) 7 A Crim R 174 (at 107):

The second initial consideration is the ascertainment of the existence of the general pattern of sentencing by criminal courts for offences such as those under consideration. The task of the sentencing judge, no less than the task of an appellate court, is to pursue the ideal of even-handedness in the matter of sentencing. Full weight is to be given to the collective wisdom of other sentencing judges in interpreting and carrying into effect the policy of the legislature. That collective wisdom is manifested in the general pattern of sentences currently being passed in cases which can be recognised judicially as relevant to the case in hand.

38 In Axer, however, Badgery-Parker J acknowledged the difficulty in applying this principle (at 365): There is always a difficulty in attempting to compare the penalty in one case with the penalty in another because of the wide divergence of facts and circumstances; that task is difficult enough when one has the full text of all the relevant judgments and more difficult where the material is provided in this summary form. 39 In applying the principle of even-handedness, the prosecutor invites the court to consider the decisions of the Court in the following cases, which similarly concerned contraventions of development consents. 40 In Ku-ring-gai Council v Nettcorp Pty Ltd [2003] NSWLEC 203, Cowdroy J fined an offender $35,000 (after a $5,000 discount) for the removal of ten trees contrary to two conditions of consent. Cowdroy J (at par [21] and [29]) found that these were serious offences and the culpability of the defendant was high as its conduct had not resulted from accident, inadvertence or negligence, but was deliberate. As such, I find that this decision does not provide assistance, as the deliberate removal of trees cannot be considered to be analogous to the reckless construction as in this instance. 41 In Sutherland Shire Council v Upper Class Developments Pty Ltd [2003] NSWLEC 414, Pain J also found that the offender had deliberately contravened conditions of consent and imposed a total fine of $15,500 for five offences, three of which were for the carrying out of development contrary to conditions of consent. However, in that case her Honour also held that the breaches were not serious as they were not wilful or negligent and the environmental consequences were only very minor. It is clear that the facts in that case differed substantially from those in the current proceedings; therefore, I do not find this decision helpful in assessing penalty in this case. 42 Similarly, Bankstown City Council v Taouk Constructions Pty Ltd [2004] NSWLEC 402 does not provide any assistance as, although the offence was serious, it also involved a deliberate breach of the law and there were no adverse environmental consequences. In that case, McClellan J fined the offender the sum of $30,000 for constructing a mixed residential/commercial building contrary to conditions of consent. The offender had made an application under s 96 of the EP&A Act for the addition of the residential component, but had started the modifications prior to the determination of the application which was subsequently approved. McClellan J found that the offender was an experienced developer and had proceeded in advance of the determination of the s 96 application for its own financial gain. 43 As previously noted at par [33], Keir also involved an appeal against the severity of sentences imposed for contraventions of s 76A of the EP&A Act, where an offender and his company had each been fined $25,000 in the Local Court. McClellan J upheld the appeal by the company on the basis that it was the alter ego of Mr Keir (at pars [16-17]) and reduced the fine to $10,000, although dismissed the appeal by Mr Keir. Consequently, the total fine on Mr Keir and his company amounted to $35,000. In that case, McClellan J recognised that the offences were serious and constituted deliberate breaches of the law. Although the facts of that case are very similar to those in this case, the decision does not assist the court as there is a clear difference between the deliberate breach in that case and the mere reckless breach the subject of these proceedings. 44 In Sutherland Shire Council v Nustas [2004] NSWLEC 608 Pain J fined an offender the sum of $11,000 for substantially injuring three trees which were required to be protected under conditions of consent and pursuant to s 126(3) of the EP&A Act ordered that the trees to be replanted and maintained with the imposition of a $15,000 bond. Relevantly, her Honour found the offence was a reasonably serious matter although accepting that the defendant's actions were negligent and careless rather than deliberate. 45 By considering the decisions above and applying the principle of even-handedness, the Council submits that the fined imposed on the offender by the learned Magistrate was an appropriate exercise of the Magistrate's sentencing discretion. Mr D Gasic, appearing for the offender, submits, however, that all of these cases may be distinguished and do not assist the court in applying the principle of even-handedness to determine the appropriate penalty in this case. In the alternative, Mr Gasic invites the court to consider the decisions in Hornsby Shire Council v Atifame Pty Limited & Anor [1999] NSWLEC 69 and Willoughby City Council v P and V Masonry Pty Limited [2003] NSWLEC 312. 46 The facts in Hornsby involved contempt proceedings for breaches of court orders which had been made in respect of Class 4 proceedings declaring contraventions of a development consent. In that case, Pearlman J imposed a fine of $5,000 and in doing so acknowledged the lack of precision in respect of the orders and subsequent Council instructions caused confusion during construction. In light of this finding, her Honour held (at par [39]) that the offender and its director "were not deliberately flouting the relevant orders" although they showed "a sloppiness and lack of care in ensuring compliance". Although, Hornsby involved a reckless offender as in the present case, as I do not find this decision helpful in determining penalty.

47 The case of Willoughby is somewhat more analogous to the proceedings currently before the court. That case also involved the reckless construction of sandstone walls in breach of a development consent. The offender was instructed by the owner to construct the walls pursuant to a landscape plan, whilst a large multi-dwelling property was also under construction on the property. The offender was aware of the requirement for development consent and believed that the consent which had been obtained for the dwelling extended to the landscape plan. Subjectively the offender was very similar to Mr Carlino, having no prior convictions, good character, a dependent family and limited financial means. In convicting the offender and imposing a fine of $5,000 (which included an unusually high 50 per cent reduction for all mitigating factors), Bignold J held that the offence was a "moderately serious offence" which "far [transcended] and [exceeded] any notion that the offence [was] "trivial in nature" and consequently it should not have been dismissed pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

48 Finally, several subjective factors, both aggravating and mitigating, are also relevant considerations in determining an appropriate penalty, but are secondary to the factors relating to the seriousness of the offence: R v Rushby [1977] 1 NSWLR 594 at 597; Fletcher Constructions at 77; Lawrenson Diecasting at 474-475. This is because the objective features of an offence relate to the facts concerning the offence, whereas the subjective features relate to the facts concerning the offender: Inspector Petar Ankucic v William George Young [2004] NSWIRComm 184 at par [38].

49 Pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Court must take into account various aggravating matters when assessing penalty, including whether the loss or damage caused by the events was substantial (s 21A(2)(g)). In this case, the damage to the environment was substantial in view of the specific conditions of the consent and the provisions of both the DCP 21 and the LEP to which I have referred. 50 In addition, the Court must also consider any mitigating factors pursuant to s 21A(3) of the Crimes (Sentencing Procedure) 1999 Act (NSW), including whether a plea of guilty has been entered and the timing of such a plea as provided in s 22 of the Act. Mr Carlino pleaded guilty, albeit not at the first available opportunity, and the utilitarian value of this plea must be taken into account: R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 419. Further, I accept that, as Magistrate Seagrave recognised, the offender's plea demonstrates a degree of remorse for the offence. Finally, it must be recognised that Mr Carlino does not have any previous convictions for environmental offences against the environment protection legislation in New South Wales: Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(e). 51 Mr Gasic, appearing for the offender, also submits that, by his plea of guilty, the offender concedes that he did not comply with the development consent, though he only did so to ensure public safety. This, however, was in contradiction to the evidence heard by Magistrate Seagrave, where on behalf of the offender, Mr Kastice submitted that Mr Carlino had no intention to breach the consent and it was a "pure mistake". Despite this inconsistency, Mr Gasic submits that within his 24 years experience Mr Carlino has always aimed for structural integrity and compliance with consents. Mr Gasic tendered 3 references as evidence of the offender's good character: Crimes (Sentencing Procedure) Act 1999 (NSW), (NSW), s 21A(3)(f). All of the references recognise Mr Carlino's integrity, trustworthiness and loyalty in both professional and personal relationships. Mr Gasic also submits that the offender is currently undertaking the works pursuant to the most recent modified consent and consequently will incur further expenses associated with employing a qualified and experienced stone mason to ensure the works are completed correctly. 52 Finally, evidence was also adduced as to Mr Carlino's financial means, being an income of $1,000 per week, and his dependent family, being a wife and three young children, and the consequent hardship which he will suffer as a result of the costs of the modified works. Section 10 Application

53 The defendant seeks an order under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) dismissing the charge. Subsection (3) of that section provides that in determining whether such an order should be granted the Court is to have regard to: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, and (d) any other matter that the Court thinks proper to consider.

54 The offender adduced some evidence relating to the first element as noted above in pars [51]-[52]. However, as stated in pars [27] - [30], the objective facts of the offence are serious as the offender has demonstrated an unwillingness to comply with the strict conditions of a development consent. In these circumstances, the offence cannot be described as trivial. Further, no there were no extenuating circumstances in which the offence was committed. For these reasons the defendant is not entitled to an order dismissing the charge against him.

Penalty 55 Taking into account all of the circumstances including the means of the Mr Carlino to pay a fine (s 6 Fines Act 1996), it is appropriate to impose a significant monetary penalty for these offences as they are serious offences and the penalty should reflect the objective seriousness of the offence as the primary consideration. Further, such a penalty is required to take account of the need for specific deterrence as well as general deterrence as the offence constitutes a significant breach of planning law: Keir at par [20]. 56 The maximum penalty under the EP&A Act for a breach of s 125 by an individual is $1,100,000. The purpose of imposing penalties is to ensure that the offender is adequately punished for the offence and for the prevention and deterrence of similar offences: Crimes (Sentencing Procedure) Act, s 3A. Having regard to all the circumstances of this case and the factors considered above, I find that the fine imposed by Magistrate Seagrave of $30,250 was an appropriate penalty after allowing an appropriate discount (25 per cent) for the plea of guilty and the other mitigating factors discussed above.

Court Orders 57 The Court makes the following orders:

1. The appeal is dismissed;
2. The orders of Magistrate Seagrave are confirmed;
3. The question of costs is reserved; and
4. The exhibits may be returned.

I hereby certify that the preceding 57 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

Associate: Date: 27 April 2005

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