Cumberland Council v Khoury

Mr Khoury's pre-sentence report

1. I also determined, in the May 2016 judgment, that it was appropriate that I order that Mr Khoury be assessed by the Probation and Parole Service as to his suitability for the imposition of a custodial sentence, if the necessity to contemplate that course were to arise. Mr Khoury subsequently underwent that assessment process and I was provided with a pre-sentence report.
2. The Sentencing Options Assessment contained in the pre-sentence report prepared by Parramatta Community Corrections of NSW Corrective Services (dated 24 October 2016) concluded, under the heading "Community-Based Sentencing Options", the following: Supervision by Community Corrections Mr Khoury is unlikely to benefit from a period of supervision by Community Corrections as he did not present with problem issues relating to offending that appeared to require intervention. Community service order assessment - unsuitable Mr Khoury has been assessed as unsuitable for community service order as per the requirements of s 86(1) of the Crimes (Sentencing Procedure) Act 1999 as he did not consent to the making of such an order.
3. As a consequence, of the potential Corrective Services options available to me, the only one remaining for realistic consideration is whether or not I should impose some custodial sentence on Mr Khoury and, if so, on what terms. I also needed to consider if a fine would be an appropriate outcome.

Adjournment of the sentencing hearing

1. I considered that it was appropriate to adjourn the November 2016 sentencing proceedings for sufficient time to enable Mr Khoury to make applications to the Council for both a building certificate and for his proposed change of use of the premises. As a consequence, I adjourned the sentencing hearing until 20 February 2017 to permit this to occur.
2. I directed that any further material upon which the Council proposed to rely at the resumed sentencing hearing was to be filed and served by 9 February 2017, whilst any further material upon which Mr Khoury proposed to rely was required to be filed and served by 4.30 pm on 16 February 2017.

The adjourned sentencing hearing

1. At the commencement of the adjourned sentencing proceedings, Mr Fozzard sought to read an affidavit from Mr Faridy, Council's Development Assessment Coordinator. I enquired as to whether Mr Faridy was present as, from the terms of his affidavit as I had examined it prior to the commencement of the resumed hearing, I wished to ask him several questions. In addition, Mr Khoury also indicated he wished to cross-examine Mr Faridy. I adjourned the hearing until Mr Faridy arrived. After Mr Faridy arrived, his affidavit was read without objection.
2. It is unnecessary to set out in detail the matters contained in his affidavit. It is sufficient to observe that he had received and examined a development application lodged by Mr Khoury seeking consent to a change of use of his premises to a boarding house. By letter dated 22 November 2016, Mr Faridy had advised Mr Khoury that there were significant deficiencies in the material that had been provided, in that it did not permit the Council to make a coherent assessment of his application.
3. Mr Faridy's letter also, as subsidiary matters, advised Mr Khoury of a range of additional topics that the Council required to be canvassed in material provided by Mr Khoury to the Council before the Council would be able to assess a future application - even if that future application addressed the identified deficiencies in the application that Mr Faridy had then considered.
4. Mr Faridy advised Mr Khoury, at the conclusion of that letter, that the application was rejected and would be treated as if it had not been made, that all his documents would be returned to him, and that a full refund of the fees that he had paid would also be made to him.
5. Prior to Mr Khoury cross-examining Mr Faridy, I felt it appropriate to ensure that Mr Faridy established that the process that he had undertaken was one which was conventionally and regularly undertaken by him in his role as Coordinator of Development Assessment. The relevant portion of the transcript (Transcript 20 February 2017, page 4, lines 45 to page 5, line 16) records the following: HIS HONOUR Q. How many in your role as coordinator of development assessment, Mr Faridy, are you aware of any other instances during 2016 when development applications were rejected by the council because of inadequacy of information? A. Yes, your Honour, on a regular basis I would say at least one or two applications every fortnight I rejected due to insufficient or inadequate information. Q. Does the council to your knowledge in your role as coordinator of development assessment give a not reject applications but write to applicants pointing out the defects in the application and asking them to provide additional information within a specified period of time? A. Yes, your Honour, that's correct. Q. And how often do you do that in comparison to rejecting applications to your knowledge in your position as coordinator of development assessment? A. Deferral or asking for more information is a more regular occurrence than rejection. As I indicated earlier about two rejections a fortnight, I would say there will be at least four to five deferrals each fortnight asking for more information.
6. It is unnecessary to record the detail of Mr Khoury's cross-examination of Mr Faridy as it did not assist me in the sentencing process I am undertaking.
7. However, I noted that Mr Faridy's affidavit did not deal with the issue of whether or not Mr Khoury had also lodged a building certificate application with the Council.
8. After Mr Faridy's evidence was concluded, I asked Mr Fozzard what evidence there was concerning the issue of whether or not Mr Khoury had lodged a building certificate application with the Council.
9. Mr Fozzard indicated that, at that time, there was no such evidence. He indicated that, if a short adjournment were granted to permit the obtaining of such evidence, an affidavit dealing with the topic would be provided. I then stood the matter over until after the luncheon adjournment to permit this to occur.
10. After the luncheon adjournment, Mr Fozzard sought to read an affidavit of Mr Ferguson, the Council's Development Compliance Officer, who has had primary carriage of instructing on behalf of the Council in these proceedings. Although Mr Khoury objected to the affidavit, I permitted it to be read. The affidavit disclosed that the Council's electronic records system did not disclose any building certificate application had been made by Mr Khoury.
11. I note that Mr Khoury, in his oral evidence, subsequently conceded that he had not yet made a building certificate application to the Council.
12. At the conclusion of the Council's evidence, I asked Mr Khoury if he wished to go into the witness box and give any evidence himself. He indicated that he did not wish to do so.
13. I then invited Mr Fozzard to make closing submissions on behalf of the Council. He did so, briefly, indicating that the Council relied, primarily, on the written submissions which he had handed up at the November 2016 hearing. He did, however, acknowledge that it remained the Council's position that it accepted that Mr Khoury was not using the premises as a boarding house.
14. I then invited Mr Khoury to make such closing submissions as he considered appropriate.
15. Shortly after he commenced doing so, he started referring to documents that were in a bundle on the Bar Table in front of him. I explained to him that I was unable to have regard to such documents as they were not in evidence. I indicated that, if he were to seek leave to reopen in order to give oral evidence and tender those documents, I would, subject to dealing with any objection from Mr Fozzard to that course of action, permit him to do so but, if he were to do so, Mr Fozzard would be permitted to cross-examine him.
16. Mr Khoury then said that he did wish to seek such leave.
17. After considering Mr Fozzard's objection to granting such leave, I concluded that fairness demanded that Mr Khoury be given that opportunity.
18. Mr Khoury then entered the witness box and gave his evidence in narrative form.
19. During that process, Mr Khoury sought, first, to tender a document entitled "Fire Equipment & Site Assessment Report - 36 Frances Street, South Wentworthville", prepared by ADAIR Fire Audits & Certification Pty Ltd and dated 6 December 2016. Mr Fozzard objected to the tender of the document on the basis that the Council would not have the opportunity to examine the document and test the adequacy of its contents, and its conclusion, on fire safety issues concerning Mr Khoury's premises.
20. From the tenor of Mr Khoury's evidence, it seemed to me that the purpose for which Mr Khoury was seeking to tender the document was to demonstrate his ongoing endeavours to obtain the necessary documentation to support a building certificate application and to support a further change of use application that he would make which addressed those matters where Mr Faridy had pointed out inadequacies of the first such application lodged by Mr Khoury. Mr Khoury confirmed that he was seeking to tender the document on that limited basis and Mr Fozzard then withdrew his objection to the tender.
21. Mr Khoury also tendered, without objection, a bundle of documents comprising receipted invoices from:

• Dvyne Design Pty Ltd;
• littledeveloperco.com.au; and
• ADAIR Fire Audits & Certification Pty Ltd

1. The purpose of this tender, Mr Khoury explained during the course of his evidence, was for the purpose of demonstrating his ongoing engagement with these professional advisers for the purposes of obtaining all necessary documentation to make further applications to the Council.
2. In his oral evidence, Mr Khoury indicated that he had underestimated what was necessary to prepare the necessary documentation for a building certificate application, but that he remained committed to doing so. This underestimation was the reason no building certification application had yet been lodged.
3. From his evidence, it was also obvious that he was proposing to lodge a further application that would seek the Council's approval for a change of use for his premises so that he could resume its operation as a boarding house.
4. At the conclusion of his oral evidence-in-chief, he was cross-examined briefly by Mr Fozzard, but nothing from that warrants noting.
5. The proceedings then returned to the submissions stage, with Mr Fozzard indicating that the Council adhered to the position that it had previously enunciated.
6. The tenor of Mr Khoury's final submissions was that, since the May 2016 decision, he had understood the steps that were necessary for him to undertake to seek to regularise the status of, and his desired activities at, his premises and that he had been (and was still) obtaining the necessary material to be put to the Council to seek that regularisation.

Jurisdiction

1. My jurisdiction to deal with these contempts arise from s 74(3) of the Land and Environment Court Act 1979, permitting the rules of this Court to adopt, by reference, rules made under the Supreme Court Act 1970. The Land and Environment Court Rules 2007, in Pt 6 r 6.3, adopts, by reference, Pt 55 of the Supreme Court Rules 1970 (the Supreme Court Rules) to deal with contempt and therefore relevant to these proceedings. That rule is in the following terms: 6.3 Application of Supreme Court Rules regarding contempt Part 55 (Contempt) of the Supreme Court Rules 1970 applies, so far as applicable, to proceedings to which this Part applies.
2. Part 55 of the Supreme Court Rules deals, with contempt matters. The relevant provision here applicable is contained in Div 4, r 13(1) and (3) dealing with the power to impose punishment for contempts. The relevant provisions are in the following terms: 13 Punishment (1) Where the contemnor is not a corporation, the Court may punish contempt by committal to a correctional centre or fine or both. (2) … (3) The Court may make an order for punishment on terms, including a suspension of punishment or a suspension of punishment in case the contemnor gives security in such manner and in such sum as the Court may approve for good behaviour and performs the terms of the security.
3. Ordinary sentencing considerations apply by analogy in such circumstances. I address them below.

Introduction

1. The Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act) provides the framework which I can use by analogy to assess what sentence might be appropriate to impose on Mr Khoury for the contempts for which I had convicted him by the May 2016 judgment. The process involves me undertaking an instinctive synthesis of those factors, objective and subjective, that are relevant to the offences, and to Mr Khoury personally (Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25).
2. The objectives of the Sentencing Procedure Act are set out in s 3A of that Act. This provision reads: 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.
3. The Sentencing Procedure Act sets out, in s 21A, the aggravating, mitigating and other factors requiring to be taken into account when sentencing an offender.
4. I have had regard to the relevant matters in ss 3A and 21A of the Sentencing Procedure Act in my analysis that follows.

Aggravating factors

1. The aggravating factors are set out in s 21A(2). The sole such factor requiring consideration in these proceedings is that, in s 21A(2)(o), which requires that consideration be had to the fact that the offence was committed for financial gain.
2. It is the position, in these proceedings, that Mr Khoury had been operating his boarding house for financial gain but, as discussed in the May 2016 judgment, Mr Khoury also submitted that he was undertaking the activity for the purposes of providing affordable housing to meet a societal need.
3. In his sentencing submissions, Mr Fozzard referred me to what he considered to be the relevant evidence from the earlier phase of the proceedings leading up to the May 2016 judgment and to relevant passages of that judgment as demonstrating that Mr Khoury was motivated by financial gain.
4. However, it is now conceded by the Council that the use has ceased, and there is, thus, no ongoing financial gain to Mr Khoury. As a consequence, I do not consider that this potential factor of aggravation plays any significant or ongoing role in these sentencing proceedings.

Relevant factors personal to Mr Khoury

1. The potential factors that require consideration are set out in s 21A(3).

Prior convictions

1. The first relevant matter is that contained in s 21A(3)(e): as to whether or not Mr Khoury has any record (or significant record) of previous convictions. There are two matters to be observed in this regard.
2. First, during the course of the hearing before me on 14 November 2016, there was discussion with Mr Fozzard concerning a subpoena that the Council had issued to the New South Wales Police seeking details of Mr Khoury's criminal record. That discussion is recorded in the transcript of 14 November 2016 at page 30 between lines 10 and 41.
3. After the short adjournment that was noted at that point of the transcript, Mr Fozzard called upon the subpoena. That call, and the subsequent discussion, are recorded at page 30, line 45 to page 31, line 33.
4. It is clear from this passage that Mr Fozzard was provided with a copy of the subpoenaed material by the Registry. Mr Fozzard had included material, in his written submissions on sentence, concerning what he had proposed to submit was Mr Khoury's criminal record.
5. It is appropriate to set out a short extract from that transcript (page 31, line 25 to line 33). This passage is in the following terms: HIS HONOUR: To the extent you are seeking to rely on that which you've tendered, and I will take it subject to anything Mr Khoury might wish to say in his submissions on that point, then it would seem to me the appropriate thing for me to do is simply ignore the material in your paragraph 25, commencing, "his record has the following criminal record" through to the end of that paragraph. FOZZARD: That would the appropriate - of course your Honour, I agree with [that] course.
6. It is clear from the use of the word "tendered" in my comment at line 26 that that referred to the sentencing submissions handed up by Mr Fozzard and not to the formal tender of any police document that had been subpoenaed.
7. As can be seen from the conclusion of this short extract, Mr Fozzard did not rely on any material contained in his outline of submissions relating to any prior criminal record of Mr Khoury.
8. From that point onward in the transcript until the conclusion of that day's hearing, when I adjourned until 20 February 2017, Mr Fozzard did not return to the question of what might be (if anything) Mr Khoury's criminal record.
9. During the course of the hearing on 20 February 2017, Mr Fozzard did not return to this topic and did not seek to tender any document relating to such prior criminal record as Mr Khoury might have. Therefore, in this regard, I have no evidence of any prior criminal record of Mr Khoury's for the purposes of s 21A(3)(e) of the Sentencing Procedure Act.
10. On the other hand, it is appropriate to note that, on 6 September 2011, Pain J convicted Mr Khoury, in an ex parte hearing, of a breach of s 125(1) of the Environmental Planning Assessment Act 1979. The nature of the charge for which her Honour convicted Mr Khoury was set out in [1] of her Honour's judgment (Holroyd City Council v Khoury (No 2) 2011 NSWLEC 158) in the following terms: 1 Having resolved under a s 250(a) of the Criminal Procedure Act 1986, to proceed in the absence of the Defendant, I have before me a summons in which an order is sought that the Defendant Mr Khoury, of South Wentworthville, appear before a judge of the Court to answer the charge that on or about 8 October 2010 he committed an offence under s 125(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act). The Defendant was directed by the Prosecutor Holroyd City Council (the Council) under s 121B(1) of the EPA Act to do an action which remains undone being to: ... demolish and remove the building erected at lot 24, DP 26984 otherwise known as ... South Wentworthville within 60 days of the day of the said Order number 2, and the said building erected at the said land was not demolished and removed within 60 days of the date of the said order No 2, and remains on the said land.
11. Having convicted Mr Khoury, her Honour deferred sentencing him until a further hearing, a hearing that was held on 16 November 2011, when her Honour gave and ex tempore judgment (Holroyd City Council v Khoury (No 3) [2011] NSWLEC 210). Mr Khoury was present on that occasion.
12. Her Honour made the following orders in those proceedings: 1. The Defendant is convicted of the offence the subject of these proceedings being the failure to comply with the s 121B order issued by the Council in July 2010. 2. The Defendant is fined $35,000. 3. The Defendant is to pay the Council's costs as agreed or assessed.
13. The position, therefore, is that the sole conviction able to be taken into account in my sentencing in these contempt proceedings is that arising from those proceedings before Pain J. However, that conviction is one which: 1. Relates to the premises which are the subject of these proceedings; 2. Involves a significant breach of the planning law, this being an offence of a broadly similar kind to that giving rise to the contempts that brought Mr Khoury before me in 2016; and 3. The substantive nature of that earlier conviction, however, related to a failure by Mr Khoury to demolish unauthorised works only and did not relate to any unapproved use of his premises as a boarding house.
14. Whilst the unapproved works carry through to these contempt proceedings, the use of the premises as a boarding house is a separate element arising from further orders made by Pain J in Holroyd City Council v Khoury [2015] NSWLEC 17 where, in Class 4 civil enforcement proceedings, her Honour made the declarations and orders concerning Mr Khoury's premises and his use thereof: 31 The Court makes the following declarations and orders. The Court declares that: (1) The Respondent has, by himself, his servants and agents, carried out development, or caused or permitted the carrying out of development on 36 Frances Street, South Wentworthville, being development which was prohibited under the provisions of an environmental planning instrument which applied to 36 Frances Street, South Wentworthville, contrary to Section 76B(a) of the Environmental Planning and Assessment Act 1979 up to 5 August 2013. (2) The Respondent has, by himself, his servants and agents, carried out development, or caused or permitted the carrying out of development on 36 Frances Street, South Wentworthville, being development which required development consent under the provisions of an environmental planning instrument which applied to 36 Frances Street, South Wentworthville, without development consent first being obtained, contrary to Section 76A(1)(a) of the Environmental Planning and Assessment Act 1979, on or after 5 August 2013. The Court orders that: (3) Within 14 days of the service of this order, the Respondent, by himself, his servants and agents cease the use of the building at 36 Frances Street, South Wentworthville as a boarding house. (4) The Applicant is to give notice to the occupants of the premises located at 36 Frances Street, South Wentworthville of the orders made in these proceedings. (5) he notice referred to in Order 2 must be given by 5:00pm on Monday 16 February 2015 either by being delivered personally to each occupant or left on or under the door of each occupancy at 36 Frances Street, South Wentworthville. (6) The Respondent is to not inhibit or restrain in anyway the Applicant executing Orders 2 and 3. (7) The Respondent must pay the Applicant's costs. (8) The Applicant is to provide the Court with Short Minutes giving effect to Orders 5 and 6 sought in the Summons by 6 March 2015.

Character

1. The next matter requiring consideration pursuant to s 21A of the Sentencing Procedure Act is that contained in s 21A(3)(f): as to whether or not Mr Khoury is a person of good character. As I have no evidence concerning this and, as discussed immediately above, his past record is a separate matter of specific consideration, this factor is neutral to my consideration in these sentencing proceedings.

General principles concerning contempt sentencing

1. In Waverley Council v Tovir Investments Pty Ltd & Rappaport (No 4) [2013] NSWLEC 88, Biscoe J said, concerning contempt occasioned by disobedience of an order of this Court (at [17]): The underlying purpose of the exercise of the power of the Court to punish for a contempt such as this is to protect the effective administration of justice by demonstrating that the Court's orders will be enforced.
2. He then set out 10 sentencing factors endorsed by the Court of Appeal and applied by this Court in a number of instances. The factors he set out are: (1) the seriousness of the contempt proved; (2) whether the contemnor was aware of the consequences to himself of what he did; (3) the actual consequences of the contempt on the relevant trial or inquiry; (4) whether the contempt was committed in the context of serious crime; (5) the reason for the contempt; (6) whether the contemnor has received any benefit by indicating an intention to give evidence; (7) whether there has been any apology or public expression of contrition; (8) the character and antecedents of the contemnor; (9) general and personal deterrence; and (10) denunciation of the contempt.
3. Of the above factors, a number (3, 4 and 6) do not appear to be relevant in these circumstances. Others (such as 7, 8 and 9) have already been earlier discussed in the context of the relevant applicable provision of s 21A of the Sentencing Procedure Act.

Factor (1) - the seriousness of the contempt

1. With respect to factor (1), Mr Fozzard's sentencing submissions noted that, in the May 2016 judgment, I had found that the contempt was contumacious. Mr Fozzard submitted that I should find that the seriousness of the contempt was at the higher end of objective seriousness. He submitted that there were four reasons why I should reach this conclusion. They were: 1. Mr Khoury continued to use the premises as a boarding house after being ordered to cease to do so; 2. His use of the premises as a boarding house was carried out whilst the building constituted a fire and safety risk (in this regard, he relied on the evidence given by Mr Halstead during the hearings prior to the May 2016 judgment); 3. Mr Khoury had made no attempt to comply with the orders made by Pain J in February 2015; and 4. That there was no excuse for him having not so complied.
2. Indeed, Mr Fozzard submitted that: If it wasn't for the power and water being cut off, which we sought and obtained, he would have continued.
3. The reference to the utilities' orders is a reference to orders made by Pain J in Holroyd City Council v Khoury [2016] NSWLEC 18, where her Honour ordered Sydney Water and Endeavour Energy to cease to provide water and electricity services to Mr Khoury's premises for a period of three months from 14 days after the date of her Honour's orders on 10 March 2016.
4. Finally, Mr Fozzard submitted that Mr Khoury continued to operate the premises as a boarding house for reasons of financial gain. Mr Fozzard submitted that it was not relevant to have regard to Mr Khoury's submission that he was providing social benefit housing as a consequence of his activities.
5. In the May 2016 judgment, I found that the contempts committed by Mr Khoury were to be regarded as contumacious. With respect to this finding, it is to be observed that, in Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 at 314, Kirby P identified classes of cases relevant to sentencing an offender guilty of contempt: The most serious class of contempt, from the point of view of sanction, is contumacious contempt. Not every intentional disobedience involves a conscious defiance of the authority of the Court which is the essence of this class of contempt …This class of contempt is reserved to cases where the behaviour of the contemnor has been shown to be aimed at the integrity of the courts and designed to degrade the administration of justice, as distinguished from a simple interference with property rights manifested by a court order … In cases where such a measure of wilfulness is established, the court may proceed to punish the convicted contemnor by the imposition of a custodial sentence or a fine or both. In such a case the elements necessary to establish wilfulness, carrying as they do the potential of penal consequences, must all be proved to the criminal standard.
6. I deal, at [94] to [96], with matters engaged in the need to fit these contempts within a range of such conduct and the limited comparative material available for that purpose in this Court.

Factor (2) - awareness of consequences

1. Given the history of various court proceedings in the Court concerning Mr Khoury's unlawful activities at his premises, there can be little doubt that Mr Khoury was aware that consequences were likely to follow - although he may not have been aware of the potentially wide range of those consequences.

Factor (5) - the reason for the contempt

1. I have earlier set out my conclusion concerning this submission on financial gain and it is unnecessary to repeat it.

Factor (10) - denunciation of the contempts

1. I deal with this issue in my subsequent discussion as to the sentencing options available to be considered.

Purging the contempts

1. I have earlier set out Mr Khoury's actions, and his interaction with the Council, over the period since the May 2016 judgment, which may be regarded as purging the contempt (as far as the use of the premises as a boarding house is concerned), and seeking to purge the contempts by unsuccessfully applying to the Council for a consent for change of use of the premises and continuing to undertake activities for the preparation of further applications that will meet the Council's requirements to be considered for: 1. the granting of a building certificate; and 2. the granting of consent for use of the premises as a boarding house.
2. Whilst the purging of that contempt is not complete - in that the application and determination processes have not yet been completed to a successful outcome for Mr Khoury - I am nonetheless satisfied that, with respect to the second of the contempts, whilst it remains ongoing, that ongoing contempt should be regarded as being in abeyance as a consequence of the application-related activities Mr Khoury continues to undertake.

Likelihood of reoffending - specific deterrence

1. The next relevant factor is that in s 21A(3)(g) of the Sentencing Procedure Act: as to whether or not Mr Khoury is "unlikely to reoffend". Although, perhaps, it is appropriate to assume that Mr Khoury may not reoffend (and, if the Council approval processes he is proposing to undertake are successful, he will be unlikely to reoffend), I cannot be completely sure, at the present time, that this will be the outcome. Such an outcome, however, is the desirable one with respect to Mr Khoury's offending conduct.
2. In this context, it is necessary for me to consider whether, in addition to any other factors weighing in my sentencing assessment, I conclude that there is a need for specific deterrence for Mr Khoury.
3. I am not able to conclude, with sufficient certainty as to future outcomes, that an element of specific deterrence is not appropriate. As a consequence, although it will play a minor part in my synthesis process for determining the appropriate sentence for Mr Khoury, nonetheless, it is a factor which must weigh in that balancing.

Prospects of rehabilition

1. The next relevant factor is that in s 21(3)(h): as to whether or not Mr Khoury has good prospects of rehabilitation.
2. Although Mr Khoury did not expressly address this in his evidence, I am satisfied that the present path upon which he has embarked, of seeking to regularise with the Council the physical fabric of, and future use for, his premises, demonstrates that he has at least a degree of awareness of the unacceptable nature of his past conduct and that this insight provides some degree of comfort as to his prospects for rehabilitation. However, this assessment must also be viewed through the lens of my immediately previous assessment concerning the necessity for a degree of specific deterrence to be accounted for in this sentencing process.

Other matters in s 21A(3)

1. There are no other factors set out in s 21A(3) of the Sentencing Procedure Act that require my consideration in these proceedings.
2. In this context, it is appropriate to note that I do not consider anything contained in the evidence given by Mr Khoury, either on 14 November 2016 or 20 February 2017, could be regarded as evidencing contrition or remorse.

General deterrence

1. In addition to the question of specific deterrence to address Mr Khoury's behaviour, personally, it is also necessary to consider the desirability of, and extent required for, an expression of that denunciation of Mr Khoury's conduct that will have a general deterrent effect to discourage others from committing similar offences.
2. As earlier discussed, one factor is the necessity to reinforce the desirability of preservation of the integrity of the planning system in order to ensure public confidence in the predictability of, and even-handedness in, the land use planning process. Failure to make it clear that rogue behaviour, such as that which Mr Khoury has exhibited over a significant number of years concerning his premises at South Wentworthville, without punishing it in a sufficient fashion, would have the potential to undermine, significantly, that public confidence in the planning system.
3. In that regard, there is a need, in my view, for a significant element of general deterrence to be incorporated in the sentence to be imposed on Mr Khoury.

Characterisation of the offence

1. Although discussed in the context of a statutory sentencing regime, Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 applies relevantly by analogy - by adapting what the Court of Criminal Appeal said at [698] to read: "The task of a court is to assess the relative seriousness of the offender's particular offence in relation to a worst case for" such conduct. "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" having regard to other penalties awarded for similar contempts.
2. The upper limit for the range within which a sentence falls must not exceed that which is proportionate to the gravity of the offence in light of its objective circumstances (Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14). The lower limit is fixed to permit allowance for subjective factors as those relevant to the offender cannot produce a sentence that fails to reflect the offence's objective seriousness.
3. Placement within a range, however, is not a matter of mathematical precision, merely a tool to assist with the instinctive synthesis process needing to be undertaken to assess the appropriate penalty to be given to Mr Khoury. For the reasons discussed below, there is extremely limited assistance available to me for this purpose.

The option of a fine

1. I have earlier set out the orders made by Pain J in 2011, when she imposed a fine of $35,000 on Mr Khoury for conduct not unrelated to that which has led to these sentencing proceedings. Amongst the evidence before me in the hearings leading up to the May 2016 judgment, was, as Annexure 1 to the affidavit of Mr Bradley Ferguson, the Council's Development Compliance Officer, dated 7 April 2016, an e-mail to Mr Ferguson from the State Debt Recovery Office (the SDRO) concerning the status of payment of the 2011 fine as at 6 April 2016. The relevant element of the e-mail from the SDRO was in the following terms: … the balance outstanding on Case No. 50397 is $24,866.
2. The SDRO also observed in the e-mail: Mr Khoury was on a Time to Pay arrangement that has been dissolved due to constant arrears. At the time of the arrangement being dissolved the arrears were $300. SDR will now commence further enforcement action against Mr Khoury to recover the full amount outstanding.
3. There was no further evidence concerning this outstanding fine provided by the Council at either the November 2016 sentencing hearing or at the further sentencing hearing in February 2017. However, in [6(a)] of his written sentencing submissions handed up at the November 2016 hearing and confirmed at the February 2017 hearing, Mr Fozzard relied on Mr Ferguson's April 2016 SDRO information as a factor I should take into account.
4. As a consequence, I did not know what the present status of recovery of the outstanding monies from the 2011 fine imposed by Pain J might be. As the fine was one imposed by this Court, the fine recovery undertaken by the SDRO is for the purpose of enforcement of a judgment of this Court. For this reason, it was appropriate for me to cause an enquiry to be made of the SDRO as to the current status of that fine. The reply disclosed a highly significant and different position to that the Council proposed I should infer from the April 2016 e-mail.
5. The SDRO e-mail of 22 March 2017 to the Court's Registry in response to the enquiry made on my behalf discloses, relevantly: The $35,000 LEC fine - court reference 50397/2011 was enforced as Court Fine Enforcement Order 311008698. To date Mr Khoury has paid $14,444 towards his LEC fine. The current balance outstanding on Enforcement Order 311008698 is $20,896. We have a charge of $30,885 registered on his property at 36 Frances Street South Wentworthville …
6. As can be seen, contra the inference I was asked to draw from Mr Fozzard's sentencing submissions, further payments totalling $3,970 have been made by Mr Khoury toward the fine imposed by Pain J since the amount disclosed in Mr Ferguson's 7 April 2016 affidavit.
7. The fact that Mr Ferguson saw no need to update the fine enforcement information, despite having made the April 2016 position a significant element of his April 2016 affidavit evidence, reflects poorly on his understanding of his duty of candour to the Court.
8. However, there are four things arising in these proceedings that relevantly arise from that fine and its outstanding balance.
9. First, although Mr Khoury had not paid the totality of that fine, the SDRO e‑mail makes it clear that he had entered into an arrangement for periodic payments and had, up to the date of that e-mail, made payments totalling $14,444 against that fine liability to the State.
10. Second, during the November 2016 sentencing hearing, Mr Khoury gave evidence, of a very general nature, concerning his then earning capacity. That evidence (Transcript 14 November 2016, page 24, lines 39 to 43) was in the following terms: I will say I'll admit it, it took me a couple of months at least to sort of get my things together and say look if I don't really start moving forward here we're never going to move forward. I've got a life to get on with, your Honour, I had three, four businesses before the council started persecuting me now I've only got half of a business.
11. Although this does not provide any form of detailed evidence of the nature envisaged might be taken into account by s 6 of the Fines Act 1996, it nonetheless provides some limited financial context for understanding the nature of the additional financial burden that would be imposed on Mr Khoury, if a substantial fine of the nature that would necessarily be commensurate to punish these contempts were to be imposed on him.
12. Third, Mr Khoury has, in fact, continued to discharge his responsibilities to pay the fine imposed by Pain J (the occasional hiccough notwithstanding).
13. Fourth, it is appropriate to have regard to the not insignificant future costs that Mr Khoury will face in obtaining the necessary advice and professional support in the preparation of a compliant development application for a change of use and an application for a building certificate for his premises. That professional advice cost itself will not be insignificant and, having regard to it, does not include any allowance for what might be the cost of any rectification works that might necessarily arise from the building certificate application process. However, it is reasonable to infer (from the evidence that was given in the hearings, leading to the May 2016 judgment) that some rectification is likely and that that would incur some additional (unquantifiable) financial burden for Mr Khoury.
14. Finally, it is accepted that, in my sentencing consideration, it is also appropriate to have regard to the fact that the making of a costs order in favour of the Council (no matter what the terms of such an order might be) can impose, in itself, a significant financial burden and is to be taken into account (EPA v Barnes [2006] NSWCCA 246 at [78]). Although costs orders are compensatory rather than punitive, the costs order to be made in these proceedings, as discussed below, will, itself, impose a not insignificant financial burden on Mr Khoury.
15. Taking all these factors into account, it seems to me that it would be inappropriate to consider imposing a further fine on Mr Khoury as the form of penalty for the contempts which he has committed.

The length of a custodial sentence

1. Having concluded, for the reasons set out above, that imposition of a fine would not be appropriate, the only appropriate sentencing option remaining available is that of some form of correctional sentence. As earlier also set out, the conclusion in the pre-sentence report I had ordered for Mr Khoury shows that, of the various potential correctional options available, only that of a full-time custodial sentence would be appropriate. I must, therefore, turn to consider two matters concerning such a sentence. The first is the appropriate length of such a sentence, whilst the second is to what extent, if any, should such a sentence be suspended.
2. It is to these two tasks that I now turn my attention in undertaking the instinctive synthesis of all the factors that I have earlier set out as needing to go into the weighing process for determining such a sentence.
3. I turn, first, to the question of length of sentence. Although the contempts for which Mr Khoury has been convicted are contumacious ones, they are certainly not ones that would fit in anywhere near the worst category of such contumacious contempts. In addition, there is extremely limited precedent in this Court concerning custodial sentencing for contempt.
4. Indeed, the only case of which I am aware is that dealt with by Sheahan J in Sydney City Council v Sydney Tool Supplies Pty Ltd & Daniel Bek (No. 2) [2011] NSWLEC 196 (Bek). Those proceedings, which also involved questions of protection of the integrity of the land use planning system, resulted in Mr Bek being given a custodial sentence of one year and nine months, a sentence which his Honour fully suspended upon Mr Bek entering into a recognisance to be of good behaviour for a period coincidental with the period of the sentence. From my reading of his Honour's decision in that case, it seems to me that Mr Khoury's conduct, although undoubtedly serious, was not as serious as that of Mr Bek.
5. As a consequence, a somewhat shorter sentence for Mr Khoury would seem to me to be appropriate. Doing as best I can, under all circumstances, it therefore seems to me that a ten-month custodial sentence for Mr Khoury would be appropriate.
6. I now turn to consider what might be the appropriate extent to which that sentence should be suspended, on the basis that Mr Khoury remained of good behaviour throughout the length of its proposed term - with the test of that being that Mr Khoury not recommence the use of his premises as a boarding house during the period of the suspended sentence.
7. It seems to me, from a reading of Bek, that ensuring the rectification of the breaches of the planning law is, in itself, also a highly desirable outcome of the proceedings such as these.
8. In that context, it is appropriate to have regard to the fact that, although a realisation that has come to Mr Khoury in a significantly belated timeframe, Mr Khoury now recognises that, should he wish to use his premises in the future as a boarding house, he will need to go through a proper planning process to achieve this - a process upon which the evidence is he has now embarked (albeit somewhat imperfectly). He has also given evidence, during the sentencing hearings, of his intention to carry through with the process until he achieves his desired outcome.
9. The planning compliance process is one, necessarily, that will involve Mr Khoury's active participation. Imposition of the requirement that Mr Khoury actually serve a full-time custodial sentence would necessarily mean the cessation of those rectification endeavours for the duration of the sentence. To that extent, I do not think that it is in the broader public interest that such a hiatus be created.
10. As a consequence, consistent with the therapeutic approach taken by Sheahan J in Bek, I consider that it would be appropriate to suspend the entirety of the sentence to be imposed on Mr Khoury on the provision that he enter into a recognisance to be of good behaviour for a period equating to the duration of the sentence to be imposed, with the condition that Mr Khoury not recommence the use of his premises as a boarding house during the period of the suspended sentence.
11. Although it is highly unlikely that Mr Khoury will reside elsewhere during this period, it is at least possible that rectification works arising from the building certificate application works may require Mr Khoury to relocate, even if on a temporary basis. It would therefore be appropriate to impose an address change notification condition on Mr Khoury in the terms that were ordered by his Honour in Bek.

Costs

1. The Council seeks an order that Mr Khoury be required to pay the Council's costs of these proceedings on an indemnity basis. It is clear, as Mr Fozzard submitted, in his written sentencing submissions, that it is open to me to consider whether or not to order costs on such a basis, but that it is a matter of discretion as to whether I should do so (Canterbury City Council v Mihalopoulos (No 3) [2012] NSWLEC 72).
2. In these circumstances - where I am now satisfied that Mr Khoury understands the necessity to provide properly prepared and documented applications to the Council in the furtherance of seeking a regularisation for his premises and their future use as a boarding house - on fine balance, it would not be appropriate to make any indemnity costs order in favour of the Prosecutor but that the appropriate costs order to be made is one on an ordinary basis.
3. More problematic is the extent to which any costs order should encompass the costs of the hearing of 20 February 2017. Whilst it is true that Mr Khoury did not file and serve the material which I permitted him to tender during the sentencing hearing, there was no disadvantage to the Council in this course, given the limited purposes for which the material was tendered.
4. On the other hand, commencement of the proceedings on that day was delayed because Mr Faridy was not immediately available for cross-examination and, in light of the way that the previous phases of this matter had proceeded, it was reasonable to expect that Mr Khoury would have required him for cross-examination (quite apart from the fact that I also considered that it was necessary to ask him a limited range of questions as earlier set out).
5. Second, I have also set out the reasons why it was necessary to adjourn the hearing on 20 February 2017 to enable the Prosecutor to obtain evidence concerning whether or not Mr Khoury had lodged a building certificate application.
6. The necessity for evidence on this point should have been entirely obvious from the way the proceedings in November 2016 had unfolded and there was no excuse for evidence on this point not to have been filed and served for the Council within the timetable for such evidence as earlier set out.
7. Under all the circumstances, and again on fine balance, I have concluded that it would not be appropriate to award the Council its costs of the hearing on 20 February 2017 for the whole day, but to limit the costs in its favour for that day to the period of time which I am satisfied would otherwise have been required for that hearing, in light of the delay in commencing caused by Mr Faridy's lateness and the further delay necessitated by the adjournment to obtain Mr Ferguson's affidavit had not occurred.
8. As a consequence, I am satisfied that the Council's costs for the hearing on 20 February 2017 should be limited to a maximum of the costs for attendance of one-and-a-half hours only.

Conclusion

1. I have concluded that the only appropriate sentence to be imposed on Mr Khoury for the breaches of the orders of the Court for which I have found him guilty in the May 2016 judgment is the imposition of a full-time custodial sentence.
2. However, I have also concluded that, in recognition of the serious endeavours which I accept Mr Khoury has and is undertaking to seek to rectify the position with respect to his premises, it would be appropriate to suspend, wholly, the serving of that sentence, subject to Mr Khoury entering into a recognisance that he would be of good behaviour for the duration of the sentence with that good behaviour to be demonstrated by his not recommencing the use of his premises as a boarding house during the sentence period.
3. Having had regard to all relevant objective and subjective factors, I have therefore concluded that the appropriate sentence would be one of ten months' imprisonment but that it should be fully suspended subject to conditions requiring Mr Khoury to enter into the recognisance described and to notify the Registrar of the Court of any change to his residential address within two working days should he move his residence from 36 Frances Street, South Wentworthville, for any reason, during the currency of the recognisance .

Orders

1. The orders of the Court, therefore, are: 1. Robert Khoury is sentenced to a term of imprisonment of ten (10) months, commencing on 1 March 2017; and 2. The sentence is wholly suspended on the following conditions: 1. Mr Khoury is to enter into a recognisance to be of good behaviour by not recommencing the use of the premises at 36 Frances Street, South Wentworthville for the purposes of a boarding house for a period of ten (10) months, commencing on 1 March 2017; and 2. Mr Khoury is to notify the Registrar of the Court within two (2) working days of moving to any new residential address, should he move his residential address from 36 Frances Street, South Wentworthville during the currency of the recognisance in (2)(a); 1. Mr Khoury is to pay the Prosecutor's costs, on an ordinary basis, as agreed or assessed, with the costs of the hearing on 20 February 2017 being limited to one-and-a-half (1.5) hours; and 2. The exhibits are returned.

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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: 01 March 2017