Dunia v Fairfield City Council

Carlino v Leichhardt Municipal Council [2005] NSWLEC 198; (2005) 144 LGERA 235 Choices Manufacturing Pty Ltd v Fairfield City Council [2009] NSWLEC 72 CASES CITED: Environment Protection Authority v Pal [2009] NSWLEC 35 Environment Protection Authority v Pal (No.2) [2009] NSWLEC 60 R v Doan [2000] NSWCCA 317; (2000) 50 NSWLR 115 R v Rahme (1989) 43 A Crim R 81

APPELLANT Mr D Provera, Barrister SOLICITORS Sachs Gerace Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr AJJ Thompson, Solicitor SOLICITORS Ritchie & Castellan

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

1 His Honour: This is an appeal by Mr Dunia in class 6 of the court's jurisdiction, against the severity of a sentence imposed on him by Fairfield local court for operating a particular type of business, as at a particular time on a particular date (3.30pm on 16 September 2008), without the requisite development approval under Fairfield Local Environmental Plan 1994. 2 It is at least arguable that the appeal was commenced in this court out of time (filed on 24 May 2010, after the local court decision dated 22 April 2010), but an appeal had been lodged at the District Court at Parramatta on 18 May 2010. The prosecutor, very fairly, does not wish to take the point, and, in so far as leave may be required by the Crimes (Appeal & Review) Act 2001, I am prepared to grant it. 3 Likewise, the prosecutor did not press its opposition to a late application (required by 17 September 2010) by the appellant to adduce, in the interests of justice, some further evidence of matters his representative at first instance did not fully develop, and the court granted leave. A further affidavit from the appellant sworn 1 October 2010 was read today, some short oral evidence from him supplemented it, and he was cross-examined by the prosecutor. Regrettable errors in dates added some confusion to the matter, but I draw no adverse conclusion from that. 4 The prosecutor opposes any reduction in the penalty imposed, but does not seek its increase. 5 The appellant asks the court to substitute a much lower fine, but did not press for a s 10 order. 6 The lower court file and the full transcript of those proceedings are before this court on the appeal (Exhibits C1 and C2). 7 The facts may be briefly summarised as follows. 8 The appellant borrowed money to buy a smash repair business at 51A Railway Street Yennora from his brother, and took it over in September 2007. The transaction was completed very informally. Council apparently had had some problems with the operation in Mr Dunia's brother's time, but the appellant says he was not aware of any problems regarding ongoing Council or other approval of the operation until a Council officer (Ken Collins) made a routine inspection in December 2007. 9 In November 2007 or January 2008 (both dates being in the material), the appellant lodged a development application for approval to add a salvage business to the panel beating business. (He had earlier been involved in a similar business next door). The Council's chronology suggests that the development application in November 2007 sought extension of the twelve month approval, but the appellant says it was to add a salvage business. 10 That development application was refused in March 2008, and the appellant says that he has not operated a salvage business from the subject premises "at any time". 11 Mr Collins inspected again on 16 September 2008, and a few days later confirmed to the appellant that the panel beating business had a temporary approval dated 13 December 2006, covering the operation only to 13 December 2007. Mr Dunia "shut up shop" next day. He consulted an architect, and on 13 January 2009, lodged a development application for permission to run a smash repair business at the subject site. A deferred commencement consent was granted on 7 December 2009, but difficulties with an easement, a fire escape, etc. have delayed a reopening of the business before now. 12 Meanwhile, on 21 November 2008, Council issued the relevant Court Attendance Notice. The neighbouring owner (Mr Darwich) was also prosecuted, but his Court Attendance Notice issued on 8 January 2009. The Local Court proceedings were regularly adjourned while Mr Dunia pursued development approval. He finally entered a plea of Guilty on 23 February 2010. The Magistrate heard both matters on 30 March 2010, and delivered her judgment on 22 April 2010. The two defendants were each fined $25,500 (after a 15% discount for the guilty plea), and ordered to pay Council's professional costs ($4,300 in the case of Mr Dunia), and court costs of $76. 13 The Magistrate had before her written submissions from the prosecutor, and the defendants' solicitor responded orally. Her Honour was very thorough in her questioning of the defendants' solicitor to tease out those submissions. The modest takings of the appellant's business were discussed (T30.3.10, p3, L48-p4, L16), as were the range of penalties imposed in the local court for such offences. Her Honour was clearly informed that Mr Dunia had ceased operating soon after Mr Collins' inspection on 16 September 2008 (T30.3.10, p5, LL30-9), and that he was "struggling" financially. Mr Darwich, by comparison, ceased operating not long before the hearing - in early March 2010 (T30.3.10, p7, LL29-30 and T22.4.10, p3, LL1-3). 14 Her Honour, having been clearly provided with comprehensive submissions for both defendants, then took three weeks to consider her penalty decision. Her judgment of 22 April 2010 is thorough, and pays particular attention to the factual differences between the two cases, to the nature of the charges as concerning operations on only one stated date, and to the absence of environmental harm. Her Honour's explanation of the law and sentencing principles, her analysis of both cases against the considerations in ss 3A and 21A of the Crimes (Sentencing Procedure) Act 1999, and her consideration of the particular issues in sentencing for environmental or planning offences, were exemplary (see T22.4.10, pp4-5). 15 Her Honour also clearly distinguished the cases before her from those in the JIRS schedules put before the court. Her 15% discount for a plea of guilty entered only after the matter had been adjourned five times was, in my view, appropriate, and she expressed the view that she was being, in general terms, "lenient" (T22.4.10, p5, L50-p6, L4). 16 The objective seriousness of the offence is the primary consideration in sentencing. Carlino v Leichhardt Municipal Council [2005] NSWLEC 198; (2005) 144 LGERA 235. The evidence here suggests that the appellant knew, or at least was in a good position to have known, that he needed a valid or continuing consent, and did not have one. 17 Objective seriousness of a particular case must be measured against the maximum penalty in the statute ($1.1M), not the jurisdictional limitations on the trial court ($110,000). R v Doan [2000] NSWCCA 317; (2000) 50 NSWLR 115, at [35]. Her Honour considered both these two cases to be more serious than those relied upon by the defendants in the JIRS schedule, and a penalty representing less than 3% of the statutory maximum could hardly be considered excessive in terms of objective seriousness, even-handedness, proportionality, and the need for both general and specific deterrence. 18 It is also clear that Her Honour closely weighed the appellant's subjective circumstances - his youth, his family situation, his clear record, Mr Sadek's character reference, the plea of guilty, and the appellant's cooperation with Council. 19 It follows from what I have said that my basic position is that the penalty imposed below should stand. I am, as required, satisfied that the interests of justice are served by the penalty challenged on this appeal. It is very much the level of fine I would have imposed myself if the matter had come before me for hearing (c.f. Choices Manufacturing Pty Ltd v Fairfield City Council [2009] NSWLEC 72). 20 However, it has also been submitted that I should reduce the fine on financial hardship grounds. 21 The learned Magistrate heard some submissions on the appellant's modest means, but had before her no evidence of them. The extra evidence I allowed this morning addressed the need for the court to have such financial evidence. 22 The court accepts that the appellant has demonstrated a modest taxable income, and has incurred some hardship as a consequence of his decision to close his business when confronted with the unlawfulness of its continued operation. He has had to find other work, and pay substantial rent on the subject premises while he pursues the appropriate approvals. 23 Central to the regulation of development and of industry is the maintenance of the integrity of the planning and approval system. The appellant purchased the business with a view to making money, but made inadequate inquiries, and operated it without proper attention to planning compliance issues. One of his applications to Council appears to have failed because he provided information which was either not adequate or not timely. 24 On the other hand, he has an unencumbered house, and an unused line of credit. He may not have ready cash on hand to pay the fine, costs, etc, but he has capacity to raise the necessary funds. His circumstances are not analogous to those in either R v Rahme (1989) 43 A Crim R 81, or Environment Protection Authority v Pal [2009] NSWLEC 35 and 60. Conclusion 25 The appellant failed to discharge his duties under the planning legislation as a proponent and/or as an operator of a business, he admitted his guilt late in the resulting proceedings, and he demonstrated little remorse or contrition. The Magistrate approached the question of penalty in an exemplary way. 26 The appeal will be dismissed and the orders of the learned Magistrate will stand. 27 The appellant should also pay the Council's costs of this appeal, and I would prefer to stipulate a precise amount in the final orders. Is there an agreement? 28 [Counsel addressed]. 29 The orders of the court are, therefore:

1. The appeal is held to have been validly commenced, but is dismissed. 2. The orders made by the Magistrate on 22 April 2010 as to penalty and costs will stand. 3. Exhibits C3 and C4 are returned. 4. The appellant is ordered to pay the respondent prosecutor's reasonable costs of the appeal, agreed in the sum of $5,000, within six months.

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