Choices Manufacturing Pty Ltd v Fairfield City Council

Aref Rahme (1989) 43 A Crim R 81 Axer Pty Ltd v Environmental Protection Authority (1993) 113 LGERA 357 Carlino v Leichhardt Municipal Council (2005) 144 LGERA 235 CASES CITED: Environment Protection Authority v Pal [2009] NSWLEC 35 Environment Protection Authority v Pal No.2 [2009] 60 R v Doan (2000) 50 NSWLR 115 R v O'Neill [1979] 2 NSWLR 582 R v Robert James Borkowski [2009] NSWCCA 102

APPELLANT Mr M Ainsworth SOLICITORS LEGAL REPRESENTATIVES: Barclay Benson

RESPONDENT Mr AJJ Thompson of Ritchie and Castellan

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

60019 of 2008 Choices Manufacturing Pty Ltd v Fairfield City Council

1 His Honour: This is a class 6 appeal against the claimed severity of a fine imposed at Fairfield Local Court on the defendant company for trading as a retail shop without consent, shops other than take-away food shops being prohibited in the relevant zone. 2 The only director and the guiding mind of the defendant company is Parramatta solicitor Henrick Isaac, who has held a practising certificate since about 1995, and would, therefore, appear to be a person of good character. 3 The relevant retail business, "Stella's Bridal", is managed by his sister Stella Karam. It trades at 26 Toohey Road, Wetherill Park, a location admitted to be within the 4(c) special industrial zone under the Fairfield LEP 1994. The subject property is leased from its registered owner, Michael Peter Vartuli, apparently for a current five-year term from 14 August 2008. 4 Defence counsel, Mr Ainsworth, describes the Toohey Road area as "Bridal Alley", due to its proliferation of bridal wear outlets. Mr Isaac gave sworn evidence this morning that other proprietors have admitted to him that they also trade retail, and the submission was made to both the Local Court and this court that he and his company have been "singled out" for prosecution. 5 The company and Mr Isaac were apparently unaware of the Local Court proceedings until a magistrate dealt with them ex parte and Mr Isaac received a penalty notice. The Council did not oppose the annulment of that order, and the matter came on for hearing on 26 August 2008, a plea of guilty being entered at the outset. 6 The prosecutor's file tendered to His Honour, and the transcript of the hearing, are before this court today (Exhibit P2 and Exhibit P1 respectively, tendered without objection). 7 The learned magistrate imposed a fine of $25,000 after applying an unspecified discount for the plea. Professional costs of $1600 and court costs of $73 were also ordered. The fine was apparently the same as that earlier imposed ex parte, and the sentencing magistrate indicated his personal view that the fine was "relatively moderate" and that if he "was dealing with [the case] afresh we would be looking at a far more significant penalty even with the discount for the plea of guilty" (T10, L24-28). I should add at this point that I accept the defence submission that there are no grounds to reduce the discount below 25% for the plea in this case. See R v Robert James Borkowski [2009] NSWCCA 102. 8 The prosecution arose from an inspection by a Council officer Mr Collins on Friday 22 February 2008, during which Ms Karam made relevant admissions of a seven day retail rather than wholesale operation, and Mr Collins took several photographs. Mr Collins also saw some furniture he thought he recalled from inspections of an earlier illegal bridal business undertaking carried on at 15 Toohey Road. The photographs Mr Collins took depict a retail focus at No.26 on that day. The signage refers to "Bridal Wholesalers Direct to the Public". The other operators shown in the defendant's photographs (in Exhibit D1) do not appear to advertise operating "direct to the public", merely "Bridal Factory", with or without the word "Wholesalers". 9 Minor alterations, repairs and pressing are also carried out on site, and Mr Isaac admits that the business is still operating today as it did in February, despite the company's plea of guilty, his knowledge that it constitutes a prohibited use in the relevant zone, and the fact that an earlier DA for approval of a retail use of the premises was rejected in 2006. Mr Collins expressed the view that the operation at No.26 replicated many of the characteristics of the operation at No.15. 10 Mr Isaac or his company was a partner in the business at No.15 until it was dealt with by this court, and clearly as a solicitor he was on notice when he moved to No.26 that approval was needed, and presumably would be refused because of the zoning. The relevant breach of the law in this case concerns ss76B, 125 and 127 of the Environmental Planning and Assessment Act 1979. 11 An appeal of this type under the Crimes (Appeal and Review) Act 2001 is conducted as a rehearing on the transcript and on any fresh evidence. 12 Apart from neighbourhood photographs this court now has the benefit of some sworn oral evidence from Mr Isaac, concerning mainly the financial position of the defendant company, his own means, his intention to sue former associates for a large sum, and his knowledge of nearby bridal business operations. According to him, the defendant company's only assets are stock worth $30,000-$40,000, and its debts amount to $87,000. There is no evidence of its trading results, but he intends to continue operating, so one assumes that the business is not failing. His intended lawsuit will seek some $3million from his former associate. 13 I must be satisfied that the interests of justice are served by the penalty challenged on appeal. 14 The planning legislation seeks to ensure orderly and proper development and use of land, and is undermined by disobedience of its restrictions. See Carlino v Leichhardt Municipal Council (2005) 144 LGERA 235. 15 The defendant's plea of guilty amounts to an admission of all the elements of the offence charged (R v O'Neill [1979] 2 NSWLR 582 at 588), and its sole director was open and frank in his oral evidence. 16 The maximum penalty for the offence charged is a fine of $1.1million, but the jurisdictional limit in the Local Court is a fine of $110,000. 17 The proper approach for the sentencing judge or magistrate in such circumstances is laid down by R v Doan (2000) 50 NSWLR 115, per Grove J at 123 - one has regard to the worst case and sentences within the range, working down from the prescribed maximum, taking care to ensure that the penalty does not exceed the jurisdictional limit, and having regard to the familiar principles in s3A of the Crimes (Sentencing Procedure) Act 1999, covering both objective and subjective factors and circumstances. 18 In terms of its objective circumstances, this is a flagrant and deliberate flouting of the planning law for commercial purposes, by a company directed by a solicitor, who would be expected to know better, and it is not excused by the assertion that others may be guilty of similar breaches. 19 In terms of subjective factors. I have carefully noted all the defendant's submissions to the magistrate, many of which were repeated today. 20 There is the plea of guilty, but no evidence of contrition or remorse - the business has continued to operate. There is no prior record, and the company was co-operative with the prosecutor. 21 The offence calls for both specific and general deterrence. The public needs to be reminded that the planning regime is in place for good public purposes, and must be obeyed. See Axer Pty Ltd v Environmental Protection Authority (1993) 113 LGERA 357. 22 Like the learned magistrate, I believe this breach could demand a higher penalty than a mere 2.27% of the prescribed maximum, and it would have, if it had come before me initially. However, I do not accept the prosecutor's submission that I should increase the fine. While I consider it lenient, I accept that it is within the appropriate range and I see no reason to disturb the magistrate's exercise of his discretion. 23 The fact that this fine might impose some financial hardship on the company and its sole director is no reason to reduce it in all the circumstances. See the case of Aref Rahme (1989) 43 A Crim R 81, and my recent discussion of that case in Environment Protection Authority v Pal [2009] NSWLEC 35, at [120] and [131]-[133], and Environment Protection Authority v Pal (No.2) [2009] 60, at [12]-[14]. Arrangements can be made to pay the fine over time, if needs be. Before the magistrate, Mr Ainsworth submitted that Mr Isaac had been a "very successful" legal practitioner (T7, L25). Orders 24 The orders of the court will be:

1. The defendant's appeal is dismissed. 2. The orders of the magistrate as to penalty and costs will stand. 3. Exhibit P1 and Exhibit P2 will remain in the court file, but Exhibit D1 and Exhibit D2 may be returned. 25 I will also order that the defendant, having been totally unsuccessful in this appeal, pay the prosecutor's reasonable costs of the appeal, but I would prefer to stipulate a precise amount. 26 [Counsel conferred]. 27 The fourth order of the Court will be:

4. The Appellant/Defendant is ordered to pay the prosecutor's costs as agreed, or as assessed according to law.

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