Chahoud v Penrith City Council

[2004] HCA 15; (2004) 78 ALJR 616 Lane Cove Council v Wu [2011] NSWLEC 43 Liverpool City Council v Maller Holdings Pty Ltd (No 2) [2015] NSWLEC 48 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 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 R [2011] HCA 39; (2011) 244 CLR 120 Parker v Director of Public Prosecutions of NSW (1992) 28 NSWLR 282 Pesic v Sutherland Shire Council [2019] NSWLEC 38 Plath of Department of Environment and Climate Change v Fish [2010] NSWLEC 144; (2010) 179 LGERA 386 Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 Plath v Vaccount Pty Ltd t/as Tableland Timbers [2011] NSWLEC 202 R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Oliver (1980) 7 A Crim R 174 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v Visconti [1982] 2 NSWLR 104 R v Wickham [2004] NSWCCA 193 Terrey v Department of Environment, Climate Change and Water [2011] NSWLEC 141 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 Texts Cited: Stephen Odgers SC, Sentence (5th ed, 2020, Longueville Media Pty Ltd) Category: Principal judgment Parties: Sirine Chahoud (Applicant) Penrith City Council (Respondent) Representation: Counsel: E Rahme (solicitor) (Applicant) D Robertson (Respondent)

Solicitors: Elie Rahme and Associates (Applicant) Penrith City Council (Respondent) File Number(s): 2020/196973

Chahoud Appeals Against Her Sentence in the Local Court for Constructing and Using a Shed as a Truck Depot on Land Where Such Use is Prohibited

1. The appellant, Sirine Chahoud, appeals pursuant to s 31(1) of the Crimes (Appeal and Review) Act 2011 ("the Review Act") against the severity of the sentence imposed on her by the Local Court in proceedings brought by Penrith City Council ("the Council") for four offences of carrying out prohibited development on land contrary to s 4.3(a) of the Environmental Planning and Assessment Act 1979 ("the EPAA").
2. Section 4.3 of the EPAA provides that: 4.3 Development that is prohibited If an environmental planning instrument provides that - (a) specified development is prohibited on land to which the provision applies, or (b) development cannot be carried out on land with or without development consent, a person must not carry out the development on the land. Maximum penalty - Tier 1 monetary penalty.
3. Section 9.53(1)(b) of the EPAA provides that the maximum penalty for an individual for a Tier 2 offence is: 9.53 Maximum penalty - Tier 2 (1) If Tier 2 is specified as the maximum penalty at the end of a provision (or a number of provisions) of this Act, a person who contravenes or fails to comply with that provision (or those provisions) is guilty of an offence and liable to a penalty not exceeding - … (b) in the case of an individual - (i) $500,000, and (ii) for a continuing offence - a further $5,000 for each day the offence continues.
4. It was not a matter of dispute that the four offences committed by Chahoud were Tier 2 offences. Thus, the maximum penalty for each offence is $500,000.
5. I have determined that the appeal against the severity of the sentence imposed at first instance should be allowed. As the reasons below disclose, having regard to the objective and subjective factors informing the commission of the offences, the monetary penalties imposed by the Local Court were excessive.

Chahoud Operates a Truck Depot and Constructs a Large Shed on Land

1. Chahoud is the registered proprietor of the property at 1107-1115 Mamre Road, Kemps Creek ("the property").
2. Chahoud is the sole director, secretary, and shareholder of the transport freight Nationwide Logics Pty Limited ("NL"). NL is contracted to transport food for Aldi, Costco and Coca Cola. NL owns six trucks and ten trailers.
3. Chahoud purchased the property in 2018 for $2,630,000 to store NL's trucks and equipment.
4. Shortly after its purchase, Chahoud commenced parking trucks and trailers on the property. As the transport business grew, Chahoud permitted other logistics company operators to park their trucks on the property for a fee.
5. In late 2018 or early 2019, Chahoud commenced constructing a large shed on the property to be used for the onsite repair and maintenance of NL's trucks and trailers.
6. On 15 April 2019 the Council issued Chahoud with a $1,500 penalty infringement notice ("PIN") for the construction of the concrete slab for the shed on the property. The covering letter to the PIN stated as follows (emphasis added): Premises: Lot 3 DP 30265, 1107-1115 Mamre Road KEMPS CREEK Subject: Penalty Notice for "Development without development consent - class 1a or 10 building - Individual" A. An inspection was conducted by Council Officers on 15 January 2019 of the Premises; B. The inspection revealed the construction of a concrete slab on the Premises; C. A search of Council's records indicates that the construction of a concrete slab does not have prior consent from Council; D. The concrete slab constructed is not exempt development under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008; E. Development consent was required for the concrete slab under Section 4.2 of the Environmental Planning and Assessment Act 1979; and F. A search of Council records established that no prior approval was obtained for the construction of the concrete slab on the Premises. Therefore, please find attached a $1500 penalty notice for development without development consent - class 1a or 10 building - Individual.
7. Chahoud paid the PIN but continued to complete the construction of the shed.
8. On 23 September 2019 Council officers attended and inspected the property. The inspection revealed: 1. a large number of trucks and trailers parked in and around the property on a large road base hardstand area of approximately 11,000 m2 on land zoned RU4 Primary Production Small Lots under the Penrith Local Environmental Plan 2010 ("PLEP"); 2. further trucks and trailers parked in and around the rear of the property (adjacent to Kemps Creek) on a road base hardstand area of approximately 400 m2 on land zoned E2 Environmental Conservation ("the E2 zone") under the PLEP; and 3. a large shed with a floor area of 400 m2 that was constructed on a concrete slab which was being used to service the trucks and trailers.

The Local Court Proceedings

1. On 26 November 2019 the Council filed five court attendance notices ("CANs") against Chahoud in the Penrith Local Court ("the Local Court").
2. The Council also commenced proceedings against NL.
3. On 6 February 2020 the proceedings were first listed for mention in the Local Court.
4. On 26 March 2020 Chahoud entered pleas of not guilty to all five charges.
5. On 14 May 2020 CAN D against Chahoud was withdrawn. In addition, all CANs against NL were withdrawn.
6. On the same day, Chahoud entered pleas of guilty to all four remaining charges.
7. CAN A particularised the following: On 23 September 2019 Council Officers inspected the Property and observed a large number of trucks and trailers parked on a road base hard stand area approximately 11,000m2 on the Property (the Land). The Land under the Penrith Local Environmental Plan 2010 (the LEP) is zoned Primary Production- Small Lots RU4 and a truck depot is a prohibited use. The defendant breached the LEP by using the Land as a truck depot for the servicing and parking of trucks and trailers.
8. CAN B stated that: On 23 September 2019 Council Officers inspected the Property and observed a large shed structure with a floor area of 400m2 (the Shed) had been constructed for the service of motor vehicles including trucks and trailers associated with a truck depot (the Land). The Land under the Penrith Local Environmental Plan 2010 (the LEP) is zoned Rural Landscape RU4 and the use of buildings other than as a farm building ancillary to an agricultural use of the landholding is prohibited. The defendant breached the LEP as the use of the Shed on the Land is prohibited.
9. CAN C said: On 23 September 2019 Council Officers inspected the Property and observed a number of trucks and trailers parked on a road base hard stand area approximately 1,500m2 on the Property (the Land). The Land under the Penrith Local Environmental Plan 2010 (the LEP) is zoned Environmental Conservation E2 and a truck depot is a prohibited use. The defendant breached the LEP by using the Land as a truck depot for the servicing and parking of trucks and trailers.
10. What distinguished CAN C from CAN A was the particular of the prohibited use of the property as a truck depot in the E2 zone.

The Nature of an Appeal Against Sentence

1. An appeal against sentence is made to this Court as of right under s 31(1) of the Review Act: 31 Appeals as of right (1) Any person who has been convicted or sentenced by the Local Court with respect to an environmental offence may appeal to the Land and Environment Court against the conviction or sentence.
2. Section 39(2) of the Review Act provides that: 32 Determination of appeals (2) The Land and Environment Court may determine an appeal against sentence - (a) by setting aside the sentence, or (b) by varying the sentence, or (c) by dismissing the appeal.
3. An appeal against sentence proceeds by way of a rehearing and unlike an appeal against conviction is not limited to the evidence before the Court below. That is, the parties are not required to obtain leave to adduce fresh evidence (Terrey v Department of Environment, Climate Change and Water [2011] NSWLEC 141 at [51], Cmunt v Commissioner of Police NSW [2019] NSWLEC 33 at [21] and Bay State Construction Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 86 at [2]).

Evidence of Chahoud

1. The affidavit of Chahoud sworn 16 June 2020 ("the first Chahoud affidavit") relevantly deposed that: 1. she is the director of NL (confirmed by a company search that indicated that she is the sole director and sole shareholder of NL). In 2018 she purchased the property for the purpose of storing the trucks and equipment associated with NL; 2. when the property was purchased, she "was not aware that I needed to obtain permission to store the trucks and trailers that NL owned on the property. … I assumed that as the property was 6 acres, I could park the trucks and trailers on it as it was private property and the trucks would not be on public streets"; 3. she permitted other operators to park their trucks on the property for a fee to help pay the mortgage on the property and to repay a loan to her father-in-law. The large shed was built to carry out maintenance and repair on the trucks onsite. Again, she "did not even think I needed to obtain approval from council [sic] as I was on a large piece of land and I did not think we were effecting [sic] anyone"; 4. she presently earns $900 a week as a director of NL. She uses this income to support her five children. On 2 March 2020, however, she purchased a trailer for NL for $50,000; 5. she tried to negotiate with the Council to continue to use the property as a truck depot and to retain the shed. However, when it became clear that this could not occur, she commenced removing the trucks and dismantling the shed. This has taken some time. Further, she has lodged a development application in respect of the concrete slab; 6. she is "very sorry that I failed to seek advice from a lawyer or council or town planner… I have learned a great deal about land zoning and permitted use"; and 7. she was uncertain whether or not she could keep the property if NL could not make use of it.
2. At the appeal Chahoud relied not only on her first affidavit but on an additional affidavit sworn 2 October 2020 ("the second Chahoud affidavit").
3. In her second affidavit, Chahoud stated that by 2 July 2020 the shed structure that was on the property had been completely dismantled and removed and that by 14 July 2020, the last of the trailers and trucks had been permanently removed from the property.
4. In that affidavit Chahoud also deposed as to her financial position. She stated that NL pays $8,600 per month to park and store the trucks at Yennora; that she receives a wage of $900 per week from NL; that NL continues to pay the mortgage over the property in the amount of $5,782 per month; and that she can only pay the $70,000 fine if she sells the property, "otherwise I would need to pay by instalments over an extended period of time". Annexed to the second Chahoud affidavit was a Commonwealth Bank account statement in her name dated 2 October 2020, showing a balance of approximately $875. No other financial information was provided to the Court, for example, the financial accounts of NL.

The Council's Evidence

1. In addition to the ASOF which attached various photographs, including the seven aerial photographs referred to above, the Council relied upon the affidavit of Andrew Avery, the Council's legal officer, affirmed 3 November 2020 ("the Avery affidavit").
2. The Avery affidavit relevantly deposed that: 1. Chahoud is the registered proprietor of the subject property and another property in Lansvale; 2. Chahoud purchased the property for $2,630,000 in July 2018; 3. an aerial photograph taken on 3 August 2020 showed approximately eight trucks on the property; 4. an aerial photograph taken on 2 October 2020 showed the concrete slab and roof trusses of the shed remaining on the property; 5. a file note of Andrew Reece (a Council officer) dated 21 October 2020 made the following observations (with accompanying photographs) of a site inspection conducted by him on that date: I inspected the Premises at 11:15am after receiving permission to enter from Paul. I entered the Premises and noted the following ● Earthmoving machinery and shipping containers had been removed from the rear E2 Zone. ● One site shed and an earth roller remain towards the rear of the Premises ● Sediment erosion controls had been installed correctly and were serving no purpose as can be seen in the photographs ● It appeared that a small amount of fill material had been removed from the E2 ZONE. However, the works are not satisfactory and the area is still contaminated with waste. It was made clear on a number of occasions that this area was to be remediated. ● 7 shipping containers remain on the Premises in close proximity to the home. 1. And that on three earlier mentions in the Local Court Chahoud could have entered guilty pleas but did not do so.

The Sentencing Principles

1. A basic principle of sentencing law is that the sentence imposed must reflect and be proportionate to the objective circumstances of the commission of the offences and the personal or subjective circumstances of the offender (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).
2. The instinctive synthesis method is the correct method of sentencing. The Court identifies all the factors relevant to the sentence and weighs their significance to arrive at the imposition of an appropriate penalty (Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 at [26] and [29] and Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [35]-[39], [50]-[84] and [136]-[139]).
3. Section 3A of the Crimes (Sentencing Procedure) Act 1999 ("the CSPA") sets out the purposes of sentencing an offender: 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.
4. In addition, s 21A of the CSPA identifies the matters that the Court must take into account when determining the appropriate sentence, including factors in aggravation under s 21A(2) and factors in mitigation under s 21A(3) of the CSPA.
5. 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 Chahoud, however, to demonstrate 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]).
6. In determining an appropriate sentence, the Court considers the objective and subjective circumstances of any offence in the context of the relevant legislative framework (Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [169] and Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65 at [42]).

Objective Circumstances of the Offences

1. The Court must consider the objective gravity or seriousness of the offences. The circumstances to which the Court may have regard in assessing their objective gravity include (Bentley at [163]; Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [110] and Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [48]): 1. the nature of the offences; 2. the maximum penalty for the offences; 3. the harm caused to the environment by the commission of the offences; 4. Chahoud's state of mind in committing the offences; 5. Chahoud's reasons for committing the offences; 6. the foreseeability of the risk of harm to the environment by the commission of the offences; 7. the practical measures available to Chahoud to avoid harm to the environment; and 8. Chahoud's control over the causes of harm to the environment.

The Nature of the Offences

1. A fundamental consideration of relevance is the degree to which the offender's conduct offends against the legislative objectives expressed in the statutory offence (Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [15] and Rawson at [49]).
2. In this regard the Court must consider the objects of the EPAA as set out in s 1.3 of that Act: 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.
3. 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]).

Maximum Penalty

1. The maximum penalty for an offence reflects the seriousness with which the Parliament views its commission (Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 and Plath at [67]).
2. The maximum penalty for each offence in the present case is $500,000 (ss 9.52(3) and 9.53(1)(b) of the EPAA).

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

1. 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]).
2. As foreshadowed above, at a minimum, the commission of the offences undermined the integrity of the system of planning and development controls enacted in New South Wales (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]).
3. The Council further submitted that actual environmental harm had been occasioned by the commission of the offences, especially in the E2 Environmental Conservation zone to the extent that part of the property had been cleared of vegetation and covered with road base hardstand. It relied upon photographs depicting this and photographs indicating ineffective sediment controls, with some waste and fill material remaining on the property, and in particular, in the E2 zone.
4. But apart from inviting the Court to draw inferences from the photographs and the file note of Reece, there was no evidence of any actual environmental harm caused by the commission of the offences by Chahoud. There was, for example, no expert evidence of any ecological harm caused to the environment on any part of the property, including that part of the property located in the E2 zone (see CAN C).
5. Having regard to the onus of proof, the Council has failed to demonstrate any actual environmental harm to the criminal standard occasioned by the commission of any of the offences. The photographs showing some fill material remaining on the property do not establish beyond reasonable doubt that actual environmental harm occurred by its unlawful use. That the aerial photographs appear to show that some vegetation was cleared from the property was not put to Chahoud. It is not clear who removed the trees, why they were removed, or when. In this context, the CANs refer to a single date for the commission of the offences, not a date range.
6. Nor, for the same reasons given above, is there sufficient evidence to the requisite standard of any likely environmental harm caused by the commission of the offences.

Chahoud's State of Mind in Committing the Offences

1. The offences are crimes of strict liability which means that mens rea is not an element of the offence. However, the state of mind of an offender at the time of committing the offences is a relevant consideration when imposing a sentence. A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one committed accidentally (Rae at [42]-[43] and Gittany at [123]).
2. The Council submitted that Chahoud acted recklessly or negligently in committing the offences by carrying out unlawful development of a significant size and scale without seeking advice as to whether that development was permissible on the property.
3. In particular, the Council relied on the fact that on 15 April 2019, Chahoud was issued with the PIN for the construction of the concrete slab on the property, which she paid. However, an aerial photograph taken on 27 October 2019 showed that sometime after 21 July 2019, the construction of the shed continued. That is, after the PIN was issued, further works on the shed were undertaken by Chahoud despite the fact that she had been put on notice that the construction was potentially unlawful absent development consent.
4. In Plath v Vaccount Pty Ltd t/as Tableland Timbers [2011] NSWLEC 202 the Court considered the test for recklessness (at [98], quoted recently in Environment Protection Authority v Albiston [2020] NSWLEC 80 at [98]): 98 The term recklessness describes the state of mind of an offender who, while performing or failing to perform an act, is aware of the risk that a particular consequence is likely, in the sense of probable or possible, to result from that act or omission (Pemble v R (1971) 124 CLR 107, La Fontaine v R (1976) 136 CLR 62 and R v Crabbe (1985) 156 CLR 464). Recently in Blackwell v R [2011] NSWCCA 93, the Court of Criminal Appeal described the mental element of "reckless" as (at [76]): 76 The effect of this line of authority is that where the mental element of an offence is recklessness, the Crown must establish foresight of the possibility of the relevant consequence.
5. An offender's conduct will be found to be reckless if he, she or they are put on notice, in the sense that he, she or they believes or suspects that an act or omission may be unlawful but nevertheless proceeds to engage in it without making further enquiries (Director-General, Department of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110 at [136], citing Chief Executive Office of Environment and Heritage v Rummery [2012] NSWLEC 271; (2012) 192 LGERA 314 at [126] and Chief Executive of the Office of Environment and Heritage, Department of Premier and Cabinet v Turnbull [2014] NSWLEC 150 at [141]).

Chahoud's Reasons for Committing the Offences

1. The objective seriousness of the offences may also be measured by reference to the reason for their commission (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366; Gittany at [140]-[141]; Bentley at [237], [246]-[247] and Rae at [47]). Offences committed for financial gain increase their objective gravity (CSPA s 21A(2)(o)).
2. Chahoud admitted that the property was purchased with the intention of storing trucks and equipment for NL and that subsequently rent was collected from other logistics company operators for parking their trucks on the property. Furthermore, Chahoud admitted that the shed was built so that the repair and maintenance of NL's trucks could occur on the property to save costs.
3. It is therefore clear that the motivation for the offending conduct was that of financial gain, a finding that Chahoud ultimately did not contest.

Reasonable Foreseeability of the Risk of Harm

1. The extent to which Chahoud could have reasonably foreseen the risk of harm caused by the commission of the offences is a relevant objective circumstance in determining an appropriate sentence (Camilleri's Stock Feeds at 700 and Rawson at [48]).
2. But because Chahoud was not aware that she required approval to construct the shed prior to 15 April 2019, or aware at any time that the use of the property as a truck depot was prohibited, she had no foresight of the risk of harm to the integrity of the planning system in respect of the offences the subject of CANs A and C. The foreseeability of risk of harm was, however, reasonable in respect of the offences the subject of CANs B and E after the issuing of the PIN for the reasons given above.

Control Over the Causes of the Harm

1. There is no doubt that Chahoud had complete control over the commission of the offences.

The Practical Measures Available to Chahoud to Avoid the Harm

1. The practical measures available to Chahoud to avoid the harm included seeking appropriate legal or planning advice in respect of the building of the shed - especially after the PIN was issued - and more generally the use of the property as a truck depot. Neither occurred.
2. In addition, at the very least, after the PIN was issued Chahoud could have ceased building the shed. She did not do so.

Conclusion on the Objective Seriousness of the Offences

1. Having regard to the objective factors surrounding the commission of the offences, I find them to be of low to moderate objective gravity, with the commission of the offences the subject of CANs B and E to be objectively more serious given Chahoud's state of mind after 15 April 2019.
2. On the evidence before the Court there was no warrant whatsoever for the Council to submit that the objective seriousness of the offences was "high to very high".

Chahoud's Subjective Circumstances

1. Within the limits set by the objective seriousness of the offence, the Court must take into account the subjective factors relevant to Chahoud (Environment Protection Authority v GrainCorp Operations Limited [2019] NSWLEC 143 at [116] and [190]).
2. Subsections 21A(2) and (3) of the CSPA set out the aggravating and mitigating factors that the Court must consider. Relevant to the facts of this case they are: 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: … (d) the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences), … (g) the injury, emotional harm, loss or damage caused by the offence was substantial, … (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)…

Prior Convictions and Good Character (s 21A(3)(e) and (f) of the CSPA)

1. Chahoud has no prior convictions.
2. There was no evidence as to her good character.

The Offences Were Committed for Financial Gain (s 21A(2)(o) of the CSPA)

1. As discussed above, the offences were committed for financial gain.

No Substantial Injury, Emotional Harm, Loss or Damage Was Caused (s 21A(2)(g) and (3)(a) of the CSPA)

1. The Council has not proved beyond reasonable doubt that there was any substantial environmental harm, loss or damage as a result of the commission of the offences.
2. On the contrary, the evidence establishes that no substantial environmental harm, loss or damage was caused by the commission of the offences.

Chahoud Entered Early Pleas of Guilty (ss 21A(3)(k) and 22 of the CSPA)

1. A plea of guilty by an offender is a mitigating circumstance that the Court must take into account. In addition, s 22 of the CSPA requires the Court to take into account the fact that a guilty plea was entered, when it was entered, or when an intention to plead guilty was indicated, and the circumstances in which that intention was conveyed. The Court may impose a lesser penalty in assessing these factors but must not impose a penalty that is unreasonably disproportionate to the nature and circumstances of the offences (s 22(1A) of the CSPA).
2. An early plea of guilty has utilitarian value to the criminal justice system and entitles an offender to a maximum discount of 25% (R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [152]-[155]).
3. Initially Chahoud entered pleas of not guilty on the second occasion the charges were mentioned before the Local Court.
4. Later she changed her pleas to guilty to all four offences at the fourth mention of the charges in the court below. This was on the same occasion as the withdrawal of a fifth charge against Chahoud and the withdrawal of all charges against NL.
5. The Council submitted that in these circumstances Chahoud was not entitled to the full 25% discount because she did not plead guilty at the first available opportunity.
6. While I agree that the utilitarian value of the guilty pleas was slightly diminished by her initial pleas of not guilty, nevertheless there was significant value in their ultimate entry. The delay in the entry of the not guilty pleas is in part explained by the withdrawal of the fifth charge against Chahoud and the withdrawal of all the charges against NL.
7. In all of the circumstances, Chahoud is therefore entitled to a discount of 20% for her guilty pleas.

Assistance Provided to Authorities (s 21A(3)(m) of the CSPA)

1. Chahoud provided some assistance to the Council insofar as she agreed to facts and engaged in an "open dialogue" with the Council concerning her offending conduct.

Chahoud Has Demonstrated Contrition and Remorse (s 21A(3)(i) of the CSPA)

1. 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)
2. In Waste Recycling and Processing Corporation 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…
3. Chahoud has apologised for the commission of the offences and expressed genuine remorse and contrition. For example, she apologised "for the trouble I have caused to Penrith City Council, the local community and the legal system".
4. And although there remains remnant material on the property related to the offending, Chahoud has taken steps to remove the trucks, trailers and the shed from the property, albeit this process has taken some time.
5. In addition, Chahoud has engaged an architect to provide her with advice and has taken steps to remedy the unlawful development by lodging a development application with the Council for the construction of the shed and has sought certification of the concrete slab.

Chahoud is Unlikely to Reoffend and Has Good Prospects of Rehabilitation (s 21A(3)(g) and (h) of the CSPA)

1. In light of her demonstrated contrition and remorse, including the steps that she has taken to rectify her breaches of the EPAA, I find that Chahoud is highly unlikely to reoffend and has very good prospects of rehabilitation.
2. This finding is reinforced by Chahoud's uncontested evidence that she now understands that she cannot engage in development on her property without first obtaining the appropriate advice and approval. She has acknowledged that had she sought such advice, she would not be in the position that she now finds herself in.

General and Specific Deterrence

1. 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]).
2. 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).
3. 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.
4. Although Chahoud has demonstrated genuine contrition for, and insight into, her offending conduct, I nevertheless find that an element of specific deterrence is warranted in the imposition of an appropriate sentence because she continued to construct and use the shed after the PIN was issued.

Retribution and Denunciation

1. The Court must also impose a sentence that achieves the purpose of denouncing the conduct the subject of the offences and makes Chahoud accountable for her actions (Pesic v Sutherland Shire Council [2019] NSWLEC 38 at [41]).

Consistency in Sentencing

1. The task of a sentencing court is to seek even-handedness 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). 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]).
2. In Liverpool City Council v Maller Holdings Pty Ltd (No 2) [2015] NSWLEC 48 the defendant, Maller Holdings Pty Ltd ("Maller"), was sentenced pursuant to s 125(1) (as it then was) of the EPAA for the prohibited use of land as a horse transport business in contravention of s 76B (the former s 4.3) of that Act. The maximum penalty for the offence for a corporation was $1,100,000. The offending conduct had caused actual environmental harm (because it had resulted in unacceptable noise at night) on the amenity and well-being of neighbours. The Court held that Maller had deliberately continued to use the land unlawfully despite being informed that the use was prohibited, and moreover, that it did not honour undertakings that were made on its behalf to cease operating. The offence was committed for financial gain and the injury, emotional harm, loss or damage caused by the offence was substantial. The risk of harm was foreseeable, there was no evidence that any measures to avoid or minimise the harm were taken, and Maller had complete control over the causes of the commission of the offence. Maller had no prior convictions. The objective seriousness of the offending conduct was held to be high to very high. Maller was fined $500,000 and was ordered to pay the prosecutor's costs.
3. The case of Pesic concerned an appeal by Don Pesic against the sentence imposed on him by the Sutherland Local Court for an offence pursuant to s 125 of the EPAA of carrying out development by operating a vehicle repair station without development consent contrary to s 76A(1)(a) of that Act. The maximum penalty for the commission of the offence (for an individual) was $500,000. There was no actual harm caused to the environment. The Court remarked that the commission of the offence was not intentional but reckless because Pesic did not seek legal or town planning advice upon entering his lease and commencing his business operation, and that he continued to operate the business after he had been told that it was unlawful to do so absent approval. There was evidence that the offence was committed for financial gain which included an admission by Pesic that he did not want to risk losing his lease by ceasing to operate. The objective seriousness of the commission of the offence was low. Pesic did not have any prior convictions for any planning or environmental offences and was of good character. The utilitarian value of Pesic's guilty plea was diminished by the significant delay in its entry and a discount of only 5% was awarded as a consequence. Pesic showed no remorse or contrition. Specific deterrence was given substantial weight.

Costs Order Below

1. Chahoud was ordered to pay the Council's costs of the Local Court proceedings in the sum of $5,075.
2. Neither party suggested that the costs order below should be disturbed. I agree. Because an order for costs is part of the overall punishment of the offender (Barnes at [78] and [88] and Harris v Harrison [2014] NSWCCA 84; (2014) 86 NSWLR 422 at [100]), I take this into account in assessing both the unadjusted and the adjusted aggregate and individual fines for the offences committed by Chahoud (Bay State at [81]).

Financial Means of the Offender

1. Section 6 of the Fines Act 1996 provides: 6 Consideration of accused's means to pay In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider - (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount.
2. Chahoud submitted that she does not have the necessary financial means to pay a fine of $70,000 without either selling the property or paying the penalty by instalments over an extended period of time.
3. I do not agree. The evidence relied upon by her in support of this contention, although unchallenged, did not demonstrate to the requisite degree that she would be unable to pay a fine of that magnitude. The Court notes that she bought the property in 2018 for the sum of $2,630,000. While the present value of the property is unknown, given it was purchased only two years ago, the Court readily infers that its present value is likely to be significant. The property is not her primary residence.
4. Furthermore, Chahoud is the sole director, secretary and shareholder of NL. As the Council correctly submitted, no evidence was put before the Court as to the profitability of the company, its turnover, or the amount of dividends that it distributes to her as sole shareholder. It may be inferred that NL is profitable given that on 2 March 2020 Chahoud bought a new trailer for the company in the amount of $50,000.
5. In addition to NL, Chahoud is also the sole director, secretary and shareholder of Nationwide Asset Holdings Pty Limited ("NAH") and is the registered proprietor of Lot 3 DP 28221, 38 Day Street, Lansvale NSW 2166, that was purchased in May 2008 for $231,000.
6. I therefore do not accept that Chahoud is unable to pay any monetary penalty likely to be imposed upon her by this Court.

Totality Principle

1. The totality principle is a relevant consideration when determining an aggregate penalty in sentencing for multiple overlapping offences (Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 62-63 and Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [18]). The task of the Court is to ensure that the overall sentence is neither too harsh nor too lenient.
2. 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 application of the 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; 167 A Crim R 159 at [18]).
3. In the present appeal, there were essentially two discrete occasions of offending: the prohibited use of the land as a truck depot and the construction of the shed. The totality principle should therefore be applied to each set of criminal acts, so that the aggregate of the individual sentences for each offence is just and appropriate and reflects the total criminality of the offending conduct. Because the elements of the offences in CANs A and C are relevantly identical for present purposes and are co-incident with respect to the conduct and the circumstances giving rise to their commission, the application of the totality principle is warranted. A similar analysis and result ought to be applied to the offences the subject of CANs B and E.

Section 10A of the CSPA

1. Chahoud submitted that in respect of CANs A and B, an order under s 10A(1) of the CSPA should be made in the alternative (although unclear from her submissions, presumably these offences were selected by her for the purpose of the application of s 10A because the offending occurred on land zoned RU4 under the PLEP).
2. Section 10A(1) of the CSPA relevantly provides: 10A Conviction with no other penalty (1) A court that convicts an offender may dispose of the proceedings without imposing any other penalty.
3. In relation to the application of s 10A of the CSPA, there is no statutory equivalent to the factors set out in s 10(3) of that Act that must be taken into account by a court in determining the imposition of an appropriate penalty. The learned author Mr Stephen Odgers SC has observed that "utilisation of this option [an order under s 10A] would be rare and for unusual cases" (Sentence (5th ed), 2020, Longueville Media Pty Ltd, [5.11]). For example, such an order was made in Bikhit v The Queen [2007] NSWCCA 202, where it was doubted that any offence was disclosed on the evidence but the appellant had nevertheless maintained his plea of guilty.
4. Because I do not accept that the offences committed by Chahoud the subject of those CANs were trivial in nature having regard to: the size and scale of the shed; the prohibited use of the land; the fact that they were committed for financial gain; or, as discussed above, the offence the subject of CAN B was committed recklessly, I do not consider that orders under s 10A of the CSPA are appropriate.
5. The preferable course to accommodate the overlap in the factual circumstances of the four offences is, in my view, by application of the totality principle as discussed above.

The Appropriate Sentence to be Imposed

1. Synthesising the objective seriousness of the offences together with the subjective aggravating and mitigating factors giving rise to their commission, I find that the imposition of a monetary penalty is warranted for each offence as follows: 1. CAN A: $10,000 - 20% = $8,000; 2. CAN B: $40,000 - 20% = $32,000; 3. CAN C (which took place in the E2 zone): $15,000 - 20% = $12,000; and 4. CAN E: $12,000 - 20% = $9,600.
2. Upon the application of the totality principle, the fines should be adjusted as follows: 1. CAN A = $5,000; 2. CAN B = $32,000; 3. CAN C = $8,000; and 4. CAN E = $6,000.
3. This amounts to the imposition of fines totalling $51,000, which is materially less than the total amount imposed in the court below. I consider this to be a just and appropriate sentence having regard to all of the circumstances of Chahoud's offending. It follows that Chahoud's severity appeal ought to be allowed.

Costs of the Appeal

1. Pursuant to s 49(4) of the Review Act this Court can make such orders as to the costs to be paid by either party, including the Council, as it thinks fit. The exercise of the Court's discretion is not subject to the strictures contained in s 70 of the Review Act limiting the circumstances in which costs may be awarded against a public prosecutor because in this appeal the conviction of Chahoud was not set aside (to the extent that Bay State appears to suggest otherwise, it is not correct: see [83]).
2. The parties submitted that given Chahoud's pleas of guilty, the costs ordered in favour of the Council by the Local Court ought not be disturbed. I agree and, as explained above, have taken them into account in the determination of the sentence imposed on her.
3. I consider, however, that it is just that a costs order be made with respect to Chahoud's costs of the appeal. Chahoud has successfully established that the overall penalty imposed by the Local Court was too high, especially once adjusted for application of the totality principle and other factors. Many of the submissions vigorously put and pursued by the Council in this appeal failed primarily because there was insufficient evidence to support them.
4. The Council should therefore pay Chahoud's costs of the appeal.

Orders

1. The Court therefore orders: 1. the appeal is allowed; 2. the fines imposed on Chahoud by the Local Court on 18 June 2020, in the sum of $10,000 for CAN A, $10,000 for CAN B, $10,000 for CAN E and $40,000 for CAN C, are set aside; 3. in lieu thereof, Chahoud is fined: 1. $5,000 for CAN A; 2. $32,000 for CAN B; 3. $8,000 for CAN C; and 4. $6,000 for CAN E; 1. the Council is to pay Chahoud's costs of the appeal; and 2. the exhibits are to be returned.

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: 30 November 2020