NSWNSWLEC

Fairfield City Council v Oztech Developments Pty Ltd; Fairfield City Council v Bellagio Investments Pty Ltd

[2021] NSWLEC 81

Land and Environment Court (NSW)|2021-05-27|Before: Robson J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2021-05-27

Before

Robson J

Catchwords

(2006) 145 LGERA 234 Burwood Council v Doueihi [2013] NSWLEC 196
(2005) 143 LGERA 155 Cameron v Eurobodalla Shire Council [2006] NSWLEC 47
(2009) 172 LGERA 225 Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137
(2009) 168 LGERA 121 Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280

Source

Original judgment source is linked above.

Catchwords

(2006) 145 LGERA 234 Burwood Council v Doueihi [2013] NSWLEC 196(2005) 143 LGERA 155 Cameron v Eurobodalla Shire Council [2006] NSWLEC 47(2009) 172 LGERA 225 Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137(2009) 168 LGERA 121 Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280(2008) 163 LGERA 71 Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289(2006) 148 LGERA 299 Giorgianni v The Queen (1985) 156 CLR 473[1985] HCA 29 Gittany Constructions Pty Limited v Sutherland Shire Council [2006] NSWLEC 242(2006) 145 LGERA 189 Hamilton v Whitehead (1988) 166 CLR 121[1988] HCA 65 Harris v Harrison (2014) 86 NSWLR 422[2014] NSWCCA 84 Harrison v Perdikaris [2015] NSWLEC 99 Heatscape Pty Ltd v Mahoney (No 2) [2016] NSWLEC 45(2016) 217 LGERA 332 Hewitt v R [2007] NSWCCA 353(2007) 180 A Crim R 306 Hijazi v Georges River Council [2020] NSWLEC 36 Hoare v R (1989) 167 CLR 348[1989] HCA 33 Holroyd City Council v Khoury (No 3) [2011] NSWLEC 210 Huang v The Queen (2018) 96 NSWLR 743(2015) 209 LGERA 120 Mill v The Queen (1988) 166 CLR 59

Judgment (41 paragraphs)

[1]

Background

The factual background to the offences is mostly uncontentious, and the salient facts are summarised as follows.

[2]

The Defendants

Bellagio owns the Land on which the six dwellings were constructed over five months from June 2018. Oztech was the builder, or "principal contractor" for the building work (being "the person responsible for the overall co-ordination and control of the carrying out of the building work": s 1.4 of the EPA Act), that constructed the six dwellings on the Land.
Both Oztech and Bellagio have the same sole director and company secretary, Mr Hosn. Mr Hosn also holds all shares issued in both Oztech and Bellagio.
Given the importance of the relationship Mr Hosn has with each of the Defendants, and my consideration of the matters to be taken into account when sentencing the Defendants for the offences, it is necessary to record the full extent of the evidence given by Mr Hosn in these proceedings. In a short-unsworn statement, Mr Hosn stated: "1. My name is Joseph Sarkis Hosn. I am the sole director of the First and Second Defendants in these proceedings. 2. I am presently an inmate of the South Coast Correction Centre at Nowra Hill. 3. I confirm that I am responsible for the construction of the dwellings on each of the three lots at 44 Cathcart Street, Fairfield without obtaining the required Compliance Development Consents. 4. I confirm that at the time I was seriously unwell because of ongoing substance abuse issues as a result of which I was diagnosed as having suffered drug-induced psychosis. 5. I acknowledge that I have done the wrong thing by proceeding with the developments without obtaining proper development consents. I am very sorry and regret my actions which took place at a time when I was not in a sound state of mind. 6. Annexed hereto and marked with the letter "A" Is a copy of a Discharge Summary Report of Liverpool Hospital dated 21 October 2019 subsequent to my admission to the Mental Health High Dependency Unit thereof."
Mr El-Hessen, who is Mr Hosn's second cousin, deposes that he holds powers of attorney for Bellagio and Mr Hosn.

[3]

The Land

The Land on which the development took place comprises three lots, being Lots 73, 74 and 75, Section 7 in Deposited Plan 1059, respectively known as 44, 44A and 44B Cathcart Street, Fairfield.
The Land is located within the Fairfield local government area and is zoned R2 Low Density Residential under the Fairfield Local Environmental Plan 2013 ('FLEP'). In accordance with the FLEP, the development of "Dwelling houses", "Secondary dwellings", "Semi-detached dwellings" and "Attached dwellings" is only permitted with development consent.
It is an agreed fact that development of each of the six dwellings on the Land was permissible under the FLEP and that development consent could be obtained in the form of a complying development certificate ('CDC') issued by a council or an accredited certifier pursuant to the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW).
It is an agreed fact that no CDC (or any other form of development consent) has been issued for the six dwellings.

[4]

The construction of the six unlawful dwellings

On 28 October 2017 ZED Certifiers Pty Ltd ('Zed Certifiers'), a company which provides private certification services including the granting of CDCs, received an application from "Joe Hosn" of "Oztech Developments" for a CDC for the development of a two-storey dwelling on each of the three lots on the Land (such that three separate dwellings would be built). On 21 February 2018, Zed Certifiers advised Council that they had received the application for a CDC.
Mr Zaher deposes that Zed Certifiers did not issue a CDC in relation to the construction of a two-storey dwelling on each of the three lots on the Land, because the required documents for the application for a CDC were not provided.
On 11 November 2017, three home building compensation fund certificates were issued for the development of a "New Single Dwelling Construction" at each of 44, 44A and 44B Cathcart Street on the Land. Oztech was the nominated builder on the certificates and Oztech's builder's licence number was quoted on the certificates.
On 23 August 2018, Council received three "driveway" applications from Oztech in relation to 44, 44A and 44B Cathcart Street on the Land. The applications recorded that Oztech was the owner of the Land and the contractor in relation to the construction of the driveways. The applications also included a certificate of insurance recording Oztech's business details as a "Builder - Residential".
Between 22 June 2018 and 30 October 2018, the six dwellings were constructed on the Land without any development consent being obtained. Both a primary and secondary dwelling was constructed on each of the three lots on the Land. On two of the lots, the primary dwellings are semi-detached dwellings with attached garages, while on the third lot the primary dwelling is a detached dwelling with an attached garage. The secondary dwelling on each lot is located behind the primary dwelling.
An understanding of the nature and extent of the six unlawful dwellings can be gleaned from the aerial image and street view photographs being Annexure "A" to this judgment.
Mr Sinai, a Council officer whose duties include investigating offences against various statutes including the EPA Act, deposes that in November 2018, Council received a request for street numbers to be allocated to six dwellings constructed on the Land which prompted Council to consider whether any development consent had been issued for new development on the Land. No development consent was identified by Council. While street numbers now appear to be affixed to the six dwellings on the Land, Council did not formally allocate street numbers to the six dwellings.

[5]

Council's response to the six unlawful dwellings

Mr Sinai deposes that after providing notice of Council's intention to inspect the Land, on 21 December 2018, Mr Sinai and another Council officer attended the Land. During this inspection, a person Mr Sinai has since identified as Mr Hosn, acted aggressively towards Council officers.
Mr Sinai further deposes that in early December 2018, he searched real estate listings on the internet, and found listings indicating that the six dwellings on the Land were being offered for rental. During the inspection on 21 December 2018, Council officers ascertained that at least two of the three primary dwellings were occupied. Mr El-Hessen deposes that as at April 2021 all six of the dwellings are rented to tenants and that Bellagio receives rent for the six dwellings in the sum of $2,430 per week.
Mr Sinai deposes that on 4 December 2018 he sent Bellagio three notices indicating that Council intended to issue development control orders to Bellagio in relation to the erection of dwellings on the Land without consent, and outlining the proposed content of the development control orders ('Notices'). The Notices invited Bellagio to make representations, however no representations were received by Council.
On 21 December 2018, Council issued Bellagio with three development control orders pursuant to s 9.34 of the EPA Act, being an order in relation to each of the three lots comprising the Land. On that same day, Council provided the tenants of each of the six unlawful dwellings with information as to the availability of satisfactory alternative accommodation.
The development control order the subject of Bellagio's plea of guilty on 13 February 2020 related to the unlawful dwellings on 44 Cathcart Street Fairfield, and required Bellagio to undertake the following: "On or before 4 March 2019, you are required to demolish or remove a building, namely to do the following:- 1. Demolish all unauthorised buildings at the subject premises including but not limited to the dwelling, attached garage and secondary dwelling. 2. Contact the assigned Council officer to inspect the premises once work is done to ensure the work done is to their satisfaction."
Bellagio failed to undertake the required actions in the development control order in the time provided for compliance.

[6]

Oztech Offence

Relevant to the Oztech Offence, s 4.2(1) of the EPA Act relevantly provides that: 4.2 Development that needs consent (1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument. Maximum penalty: Tier 1 monetary penalty. (2) For the purposes of subsection (1), development consent may be obtained: (a) by the making of a determination by a consent authority to grant development consent, or (b) in the case of complying development, by the issue of a complying development certificate. …
In accordance with the agreed facts, Oztech admits that it either carried out the physical building works for the six dwellings on the Land itself, or as the "principal contractor" for the building work; and further, that no CDC had been obtained for this development.
Oztech has pleaded guilty to the following charge: "Between 22 June 2018 and 30 October 2018 at Fairfield in the State of New South Wales, contrary to section 4.2 (1) of the Environmental Planning and Assessment Act 1979 ("the Act") Oztech Developments Pty Ltd ACN 162033810 (hereinafter "the defendant") did carry out development on land to which section 4.2 of the Act applies, the development being specified development that an environmental planning instrument provides may not be carried out except with development consent, whereas the defendant carried out the development without a development consent having first been obtained and without a development consent being in force: Particulars 1. The development consists of the erection of six dwellings on land located at 44, 44A and 44B Cathcart Street Fairfield NSW 2165, being land legally described as Lots 73-75 Section 7 in Deposited Plan 1059 ("the land"). 2. The relevant environmental planning instrument is the Fairfield Local Environmental Plan 2013. 3. The erection on the land of dwellings is permissible with development consent. 4. At all relevant times the defendant was the builder of the dwellings. 5. The defendant and the land owner have the same sole director and company secretary, namely Joseph Hosn."

[7]

First Bellagio Offence

Relevant to the First Bellagio Offence, s 9.50(3A) of the EPA Act provides: 9.50 Offences against this Act and the regulations (1)-(3) (Repealed) (3A) A person who: (a) aids, abets, counsels or procures another person to commit, or (b) conspires to commit, an offence against this Act or the regulations arising under any other provision is guilty of an offence against this Act or the regulations arising under that provision and is liable, on conviction, to the same penalty applicable to an offence arising under that provision. …
In accordance with the agreed facts, Bellagio accepts that, as the owner of the Land, it was responsible for either obtaining a CDC for the development of the six unlawful dwellings on the Land, or providing "owner's approval" in relation to any application to obtain a CDC for the development of the six unlawful dwellings on the Land. Bellagio knew that no CDC had been obtained for the development of the six unlawful dwellings on the Land.
Despite this, and the agreed fact that Bellagio had the necessary means to control access to the Land by Oztech, it is an agreed fact that Bellagio both used Oztech to undertake development on the Land and allowed Oztech to undertake development on the Land. In this way, it is an agreed fact that Bellagio provided Oztech with the means for the commission of the offence and knew "the full facts and circumstances in relation to [Oztech's] offending".
Bellagio has pleaded guilty to the following charge: "Between 22 June 2018 and 30 October 2018 at Fairfield in the State of New South Wales, contrary to sections 4.2 (1) and 9.50 (3A) of the Environmental Planning and Assessment Act 1979 ("the Act") Bellagio Investments Pty Ltd ACN 124662728 (hereinafter "the defendant") did aid, abet counsel or procure Oztech Developments Pty Ltd to carry out development on land to which section 4.2 of the Act applies, the development being specified development that an environmental planning instrument provides may not be carried out except with development consent, whereas Oztech Developments Pty Ltd carried out the development without a development consent having first been obtained and without a development consent being in force: Particulars 1. The development consists of the erection of six dwellings on land located at 44, 44A and 44B Cathcart Street Fairfield NSW 2165, being land legally described as Lots 73-75 Section 7 in Deposited Plan 1059 ("the land"). 2. The relevant environmental planning instrument is the Fairfield Local Environmental Plan 2013. 3. The erection on the land of dwellings is permissible with development consent. 4. At all relevant times the defendant as the owner of the land exercised control over the land. 5. At all relevant times the defendant had responsibility for obtaining development consent for development undertaken on the land or for providing land owner's approval for any development consent obtained in respect of the land. 6. The defendant and Oztech Developments Pty Ltd have the same sole director and company secretary, namely Joseph Hosn. 7. The defendant, via Joseph Hosn, knew the essential circumstances that established the principal offence and with that knowledge intentionally assisted or encouraged Oztech Developments Pty Ltd to commit that offence."

[8]

Second Bellagio Offence

Relevant to the Second Bellagio Offence, s 9.37(1) of the EPA Act provides that: 9.37 Failure to comply with order - offence (1) A person to whom a development control order is given or is taken to have been given must comply with the terms of the order. …
Bellagio failed to undertake the actions required by the development control order on or before 4 March 2019. Further, since 5 March 2019, Bellagio has continued to fail to comply with the development control order.
Council originally charged Bellagio as follows: "On 5 March 2019 and at Fairfield in the State of New South Wales contrary to section 9.37 (1) of the Environmental Planning and Assessment Act 1979 ('the Act") and continuing each day thereafter Bellagio Investments Pty Ltd ACN 124662728 (hereinafter "the defendant") being a person to whom development control orders were given has failed to comply with the terms of those development control orders: Particulars 1. Three development control orders ("DCO") in respect of dwellings built on three Lots. 2. Each DCO was given to the defendant on or about 21 December 2018. 3. The street address of the Lots respectively covered by each DCO is: i. 44 Cathcart Street Fairfield 2165 (Lot 75 Section 7 in Deposited Plan 1059); ii. 44A Cathcart Street Fairfield 2165 (Lot 74 Section 7 in Deposited Plan 1059); and, iii. 44B Cathcart Street Fairfield NSW 2165 (Lot 73 Section 7 in Deposited Plan 1059). 4. Each DCO is in the same terms. 5. Each DCO requires the defendant to: i. Demolish all unauthorised buildings at the subject premises including but not limited to the dwelling, attached garage and secondary dwelling. ii. Contact the assigned council officer to inspect the premises once work is done to ensure the work is done to their satisfaction. 6. Each DCO has associated notes governing how the work is to be undertaken inclusive of approved work hours. 7. Each DCO required compliance on or before 4 March 2019. 8. The defendant has failed to do the things required by the terms of each DCO within the time set in each DCO for compliance. 9. The defendant's failure as particularised at 8 herein is an ongoing failure that commenced on 5 March 2019 and continues until such time as the terms of each DCO are complied with."
During the course of these proceedings, this charge against Bellagio was amended to refer to a single development control order issued on 21 December 2018 in relation to Lot 75, Section 7 in Deposited Plan 1059 known as 44 Cathcart Street, Fairfield ('DCO'). Bellagio pleaded guilty to the amended charge.

[9]

Impact of the offences

The six unlawful dwellings are rented out to tenants. Mr El-Hessen deposes that as at April 2021, the rent being received from tenants in the six dwellings amounts to $2,430 per week, and that he uses this money to pay company debts including land tax liabilities. Mr Sinai deposes that the dwellings were offered for rental in December 2018 and that two dwellings were occupied as at 21 December 2018.
In the course of constructing the six dwellings, five trees were removed from the Land. As set out in the agreed facts, four trees required a "tree work permit" prior to their removal, whereas a tree located at the rear of the Land was likely considered "undesirable", and could be removed without a tree work permit.
Mr Sinai gives the following unchallenged evidence: first, despite the Fairfield Citywide Development Control Plan 2013 requiring single dwellings and dual occupancies with a final site impervious area of greater than 70% to have on-site detention to "reduce the impact of increased runoff on flooding", no on-site detention has been constructed on the Land; second, the "lack of landscaping" of the Land has a negative effect on localised flooding due to the concentration of overland flow on adjoining properties; and third, the removal of trees and green cover has a negative impact on the urban heat island effect, and is contrary to the principles outlined in the Western City District Plan established by the Greater Sydney Commission.

[10]

Principles of sentencing

Each Defendant entered a plea of guilty in relation to the offences. A plea of guilty indicates that the essential elements of the offences have been made out, but nothing further: R v O'Neill [1979] 2 NSWLR 582 at 588; R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 ('R v Olbrich') at [4].
The instinctive synthesis process of sentencing requires consideration of the objective circumstances of the offences and the personal or subjective circumstances of the offenders: Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 at 490; Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 ('Veen No 2') at 472. This process requires the Court to identify and weigh the significance of the factors relevant to sentence.
The Court must have regard to the legislative framework when imposing a proportionate and appropriate sentence for the offences committed by the Defendants. This includes the purposes of sentencing as contained within s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('Sentencing Act'); and any aggravating, mitigating and other factors of relevance as set out in ss 21A and 22 of the Sentencing Act.
The purposes of sentencing are identified in s 3A of the Sentencing Act as follows: 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.
Section 21A of the Sentencing Act sets out aggravating and mitigating factors which the Court is required to take into account when sentencing. Council has the onus of proving any aggravating factors beyond reasonable doubt, while the Defendants have the onus of proving any mitigating factors on the balance of probabilities: R v Olbrich at [27].
Council submits, and the Defendants accept, that there are two aggravating factors under s 21A(2) of the Sentencing Act to be considered in relation to each of the offences to which Oztech and Bellagio have pleaded guilty, as follows: 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 - … (n) the offence was part of a planned or organised criminal activity, (o) the offence was committed for financial gain, …

[11]

Objective seriousness of the offences

The objective gravity or seriousness of each of the offences committed by the Defendants is a principal factor to be considered in determining a proportionate sentence: Hoare v R (1989) 167 CLR 348; [1989] HCA 33 at 354; Veen No 2 at 472, 485-6, 490-1, 496. This factor "fixes" both the upper and lower limits of a proportionate sentence: Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 ('Plath v Rawson') at [46].
The objective seriousness involves consideration of the following circumstances in relation to each offence: the nature of the offences; the maximum penalty; the harm to the environment caused by the commission of the offences; the Defendants' state of mind including their reasons for committing the offences; the extent to which this harm was reasonably foreseeable by the Defendants; the Defendants' control over the causes that gave rise to the offences; and whether practical measures were available to prevent the harm caused to the environment by the commission of the offences: Bentley v BGP Properties Pty Limited [2006] NSWLEC 34; (2006) 145 LGERA 234 ('Bentley v BGP') at [163]; Gittany Constructions Pty Limited v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 ('Gittany v Sutherland') at [110]; Plath v Rawson at [48]. As noted by Preston CJ of LEC in Plath v Rawson at [47], the personal circumstances of the Defendants at the time of the commission of the offences may be "objectively relevant" as a result of the "causal connection with the commission of the offence", and citing R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 at [85]-[86].
Council submits that the objective seriousness of each offence is medium to high. Council characterises the offences as being undertaken with "absolutely no regard to the planning law", and notes they resulted in the construction of six unlawful dwellings which have not been subject to proper scrutiny or certification. As a result, the six dwellings are "an unknown quantity as far as health, safety and structural integrity are concerned", as the actual safety of the dwellings cannot be ascertained without further evidence. Council submits the objective seriousness of the offences is demonstrated by the need for Council (or the Court in different proceedings) to undertake further enquiry as to whether the six dwellings ought to be demolished or whether they can be regularised (where the possibility that the six dwellings may be regularised does not undermine the gravity of the offences).

[12]

Nature of the offences

The nature of each offence that has been committed, and its role in the broader statutory scheme, provides insight into the objective gravity of the offences: Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 ('Rae') at [15]. I note the objects set out s 1.3 of the EPA Act include: 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, … (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, …
Council submits that each offence committed by the Defendants under the EPA Act is serious and indicates a disregard for "the planning regime in New South Wales", where the planning regime has an important role to play in ensuring appropriate planning and building controls are implemented and development is undertaken in a "safe and orderly manner". Council identifies "the importance of upholding of [sic] the integrity of the system of planning and development control", citing Byron Shire Council v Fletcher [2005] NSWLEC 706; (2005) 143 LGERA 155 ('Byron v Fletcher').
The Defendants accept there is a degree of "inherent harm" in non-compliance with the planning regime. However, the Defendants note that the six dwellings are permissible under the relevant land use zoning in the FLEP and would have been "capable" of being approved if development consent had been sought. The Defendants submit that this distinguishes the offences from other cases in which unlawful works are unlikely to have been the subject of development consent.
I consider, and there can be no doubt, that the EPA Act is a foundational part of the system of planning and development control that applies in New South Wales. The objects of the EPA Act clearly illustrate Parliament's intention that development, including the construction of new dwellings, is undertaken in a managed and orderly manner. In addition, the objects, particularly (a), (c), (g) and (h) in s 1.3 of the EPA Act, recognise the importance of good design and proper construction of buildings, which cannot be guaranteed when there is a failure to comply with the system of planning and development control.

[13]

Maximum penalty

The maximum penalty for an offence is relevant to its objective gravity, as it "reflects the "public expression" by parliament of the seriousness of the offence": Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 ('Camilleri's Stock Feeds') at 698.
The parties agree that all the offences are "tier two" offences, because s 9.52(2) of the EPA Act provides that offences are only "tier one" if it can be established to the criminal standard of proof that they were committed intentionally, and caused or were likely to cause significant harm to the environment, or the death of or serious injury or illness to a person. The maximum penalty for a tier two offence committed by a corporation is $2 million, with a daily recurring penalty of $20,000: s 9.53 of the EPA Act.
I consider this maximum penalty to indicate that Parliament views a contravention of s 4.2(1) of the EPA Act and the failure to comply with a development control order to be objectively serious, and to warrant the imposition of significant financial penalties.
Finally, I note that there is no distinction between the maximum penalty for primary liability and secondary participation under the EPA Act, as s 9.50(3A) provides that, on conviction, an offender is liable for the same penalty as that imposed under the primary offence. This indicates that Parliament views a contravention of s 9.50(3A) to be of the same seriousness as a contravention of the primary offence.

[14]

Extent of harm

The concept of "harm" in relation to environmental offences is construed broadly: Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 ('Waste Recycling') at [145]-[147]. Harm can be direct or indirect, individual or cumulative, and is not limited to measurable harm but can include broader notions such as quality of life. In this respect, it is not necessary for actual harm to be caused; the potential for, or risk of, harm should also be taken into account: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366 ('Axer'); Waste Recycling at [145].
The extent and seriousness of the harm caused by the commission of the offences is relevant to the objective seriousness of the offences. In Camilleri's Stock Feeds at 701, Kirby P noted that "[i]n environmental matters the Court has previously exercised its discretion in relation to penalty on the principle that the more serious the lasting environmental harm involved the more serious the offence and, ordinarily, the higher the penalty".
Further, the extent of harm is also relevant to the aggravating and mitigating factors in the Sentencing Act, where: 1. pursuant to s 21A(2)(g), "substantial" injury, emotional harm, loss or damage proved beyond reasonable doubt is an aggravating factor; and 2. pursuant to s 21A(3)(a), "not substantial" injury, emotional harm, loss or damage proved on the balance of probabilities is a mitigating factor.
It is an agreed fact that the development of the six unlawful dwellings has not, to date, caused any actual harm to the environment, beyond the removal of four trees from the Land which should have been removed pursuant to a "tree works permit" as discussed at [45] above. It is also an agreed fact that the removal of the trees is by inference a loss to the community of an environmental resource and accordingly has some environmental impact. However, as considered below, the quality and quantity of the environmental impact is "essentially unknown" as the removal of the trees precludes any further information being ascertained (other than that a tree work permit would have been required). This is relevant to the harm caused by the Oztech Offence and the First Bellagio Offence, but would not extend to the Second Bellagio Offence.
Further, it is an agreed fact that the development of the six unlawful dwellings has not caused harm to any person. I have assumed this refers to causing actual harm.

[15]

State of mind

The offences committed are strict liability offences. However, the Defendants' states of mind are relevant to the objective seriousness of the offences, as state of mind may make a strict liability offence objectively more serious if committed intentionally, recklessly or negligently: Rae at [42]; Camilleri's Stock Feeds at 700. Relevant to these proceedings, premeditation makes an offence more serious than an offence committed on the "spur of the moment": R v Morabito (1992) 62 A Crim R 82 at 86.
I am cognisant that Council did not contend that any of the offences are offences for which a "tier one" monetary penalty applies, where "intentionally" committing the offence is an element of a "tier one" monetary penalty. This gives rise to the issue of whether the principle in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 ('De Simoni'), being that a person should not be sentenced for a more serious offence than the offence with which they are charged, precludes the Court from considering whether the Defendants' intentionally committed the offences.
While the Court cannot take into account whether a defendant committed an offence intentionally as an aggravating factor (because it is not contended that a "tier one" monetary penalty applies for the offence), the De Simoni principle does not preclude the Court from considering a defendant's state of mind when assessing the objective seriousness of an offence. In Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 at [158], Pepper J stated: "The principle in De Simoni will not be breached if the Court takes in account conduct not to punish the offender for that conduct, but for some other reason such as to assess the objective seriousness of the offence for which the offender has been convicted provided that the conduct is not entirely separate and distinct from that giving rise to the offence charged but is an incident of the conduct giving rise to the commission of the offence." (citations omitted)
In these proceedings I take into account whether the offences were committed intentionally when evaluating the Defendants' states of mind for the purpose of assessing the objective seriousness of the offences committed by the Defendants, and, as considered below, in relation to the need for deterrence: Huang v The Queen (2018) 96 NSWLR 743; [2018] NSWCCA 57 at [55], cognisant that the Defendants cannot be sentenced for a more serious offence than those with which they were respectively charged.

[16]

Foreseeability of risk of environmental harm

The objective seriousness of the offences may be increased if the environmental harm that was caused was reasonably foreseeable: Camilleri's Stock Feeds at 701. As noted in Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280; (2008) 163 LGERA 71 at [31]-[32], the precise event giving rise to the harm is not required to be foreseen. While this case considered the foreseeability of an offence under different legislation, it has been broadly applied to offences relating to development under the EPA Act: see, for example, Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 7) [2021] NSWLEC 26 at [511].
Council submits that the Defendants could have reasonably foreseen that to engage in building work without the necessary development consent, and further, to ignore the DCO, would "at the very least" cause harm to the integrity of the planning system. I accept this submission.
I consider that it was reasonably foreseeable to the Defendants that failure to comply with the system for planning and development control in relation to the construction of the six dwellings and later the DCO requiring the demolition of two dwellings would cause harm (particularly where, as discussed above, "harm" caused by environmental offences is construed broadly). Specifically, I consider that it was reasonably foreseeable that actual harm would occur. In this respect, given the design of the six dwellings, at the least, it was reasonably foreseeable that constructing the six dwellings would result in harm as a result of the loss of the four trees that were previously on the Land. I further consider that the potential for, or risk of, harm in relation to the health, safety and structural integrity of the dwellings was reasonably foreseeable to the Defendants, in circumstances where the Defendants chose to allow, and enable, the construction of the six dwellings without regulatory oversight.

[17]

Practical measures available to prevent, mitigate, abate or control the harm caused

Council submits that the Defendants could have "easily" prevented the harm caused by obtaining the required development consent, and "immediately ceasing all construction pursuant to the terms of the [DCO]".
I find that harm could have been prevented by compliance with the requirement to obtain development consent and compliance with the actions required pursuant to the DCO. There is a clear system for planning and development control, and if the Defendants had complied with this system the harm caused by the offences would have been prevented. I note again that Mr Hosn (the Defendants' common sole director) did take active steps to initiate an interaction with Zed Certifiers about obtaining a CDC (albeit for a development with different characteristics to that which was actually constructed, being that the application related to three dwellings only) prior to the commission of the offences. In any event, no CDC was obtained.
The Defendants submit that after the commission of the offences they sought to regularise the development of the six dwellings by applying for Building Information Certificates for each of the dwellings, and while these applications were refused, they are still within the six month appeal period. I consider that this represents some attempt by the Defendants to mitigate the harm caused by the development of the six dwellings by re-engaging with the system of planning and development control. However, these actions, which were undertaken over two years after construction of the dwellings was completed, would not be required if the commission of the offences had been avoided in the first place.
I find that, in relation to each of the offences, there were practical measures available to the Defendants to prevent, mitigate, abate or control the harm caused.

[18]

Control over causes of the offences

At all relevant times, as the builder or the "principal contractor" for the building work that constructed the six unlawful dwellings on the Land, Oztech had control over the cause of the offences. Oztech took a number of active steps that resulted in the commission of the Oztech Offence, including by being the nominated builder on the three home building compensation fund certificates issued for the Land, making driveway applications for the Land, and carrying out the construction.
As the owner of the Land, Bellagio had the necessary means to control access to the Land. In this respect, Bellagio allowed Oztech to access the Land and "used" Oztech to undertake the development of the six unlawful dwellings. This was an agreed fact. Following receipt of the DCO, Bellagio also had the means and authority to undertake the required actions in the DCO including to arrange for the demolition of the two unlawful dwellings. Despite this, Bellagio did not undertake the required actions.
Given this, I am satisfied that each of the Defendants had complete control over the causes of each of the offences with which they have been charged.

[19]

Reasons for committing the offences

The seriousness of the offences may be increased as a result of the reasons for which the offences were committed: Axer at 366. In particular, the commission of the offences for financial gain is an aggravating factor and increases the objective seriousness of the offences: s 21A(2)(o) of the Sentencing Act; Director General of National Parks and Wildlife v Wilkinson; Director General of the Department of Land and Water Conservation v Wilkinson [2002] NSWLEC 171 ('Wilkinson') at [92].
The Defendants accept that a financial benefit from the commission of the offences flowed to the Defendants or associated parties. In oral submissions, the Defendants sought to distinguish between the benefit to Bellagio, which had ongoing engagement with the management of the six dwellings after construction, and Oztech, which had no ongoing involvement with the six dwellings after construction. Notwithstanding this, the Defendants' position was that whether the commission of the offences was motivated by financial benefit "is to be inferred rather than established by the evidence".
Council submits that the Court would draw this inference, and further that the Defendants, and/or their director Mr Hosn, stood to financially benefit from the construction of the six dwellings.
I note the evidence of Mr El-Hessen in relation to the financial arrangements in relation to the six dwellings. In summary, Mr El-Hessen deposed: 1. Rent from the tenancies of the six dwellings is paid into a bank account held by Bellagio; 2. The rent received by Bellagio for the tenancies of the six dwellings (for two periods in April 2021) was $2,430 per week; 3. The rent received is used by Bellagio to pay its debts including land tax liabilities; 4. Bellagio owns 11 properties including the six dwellings the subject of these proceedings; 5. Bellagio, Mr Hosn, and other companies controlled by Mr Hosn collectively own 28 properties and those properties have provided security for loans from various lenders; and 6. Mr El-Hessen, utilising his power of attorney has, from time to time, sold properties in order to reduce debts owed to lenders.
A title search for the Land (dated 25 May 2021) confirms that the Land is held by Bellagio, subject to a mortgage.
On the basis of this evidence, I find beyond reasonable doubt that the First Bellagio Offence and the Second Bellagio Offence were committed for financial gain. I consider the evidence indicates that Bellagio (and Mr Hosn) developed and held a not insignificant property portfolio in the form of the six dwellings which was operated by Bellagio (and Mr Hosn) to generate profit. Bellagio aided, abetted, counselled or procured the construction of the six dwellings and subsequently rented them out to tenants from at least December 2018. It also failed to comply with the required actions in the DCO in relation to two of the dwellings, which had the effect of retaining the dwellings so they could be rented out to tenants. On the assumption the six dwellings remained fully tenanted, Bellagio stood to generate over $120,000 in rent per year. While no details were provided to the Court as to the likely property value of the six dwellings as assets to Bellagio, this is another aspect of financial gain which I take into account.

[20]

Conclusion on objective seriousness

Considering the above findings, I consider that the objective seriousness of the offences to be as follows: 1. The Oztech Offence is of medium objective seriousness; 2. The First Bellagio Offence is also of medium objective seriousness; 3. The Second Bellagio Offence is also of medium objective seriousness, but the seriousness is lower than that of the Oztech Offence and the First Bellagio Offence.

[21]

Subjective circumstances of the offenders

Within the bounds set by the objective seriousness of the offences noted above, the Court is required to consider the subjective circumstances of the Defendants: Veen No 2 at 472.

[22]

Planned or organised criminal activity

Where an offence is "part of a planned or organised criminal activity" this is an aggravating factor under s 21A(2)(n) of the Sentencing Act.
Council submits that the offences were planned by each of the Defendants (via their common sole director). Council's submissions in this regard had been set out at [94]-[95], with reference to Oztech's initial engagement with Mr Zaher regarding the application for a CDC. The Defendants accept that the carrying out of the development was planned, and therefore "may" engage s 21A(2)(n) of the Sentencing Act.
Having considered the evidence, I do not find beyond reasonable doubt that any of the offences were part of "a planned or organised criminal activity" for the purposes of s 21A(2)(n) of the Sentencing Act. In coming to this conclusion I have considered the propositions in relation to s 21A(2)(n) that were distilled by the Court of Criminal Appeal in Hewitt v R [2007] NSWCCA 353; (2007) 180 A Crim R 306 ('Hewitt') at [25], including that it is not simply enough that an offence was "planned" - as the wording of the Sentencing Act conveys more than that.
In Environment Protection Authority v Mouawad (No 2); Environment Protection Authority v Aussie Earthmovers Pty Ltd (No 3) [2020] NSWLEC 166, Pain J concluded that "[i]n Hewitt the CCA held the sentencing judge had erred in finding the offences of supply and cultivation of cannabis were part of an organised criminal activity because the particular offence necessarily involved a degree of planning which did not warrant a finding of aggravation", and that accordingly, the "obvious question" in the proceedings before her Honour was "what degree of planning would ordinarily be expected in an offence of this kind". There must be evidence of planning beyond that which is otherwise inherent in the commission of the offence, to justify planning of the offence constituting an aggravating factor on sentencing: at [36]-[37], [40].
I consider that there is clearly some degree of planning necessarily involved in the commission of the offence of undertaking development without obtaining development consent and aiding, abetting, counselling or procuring another to commit this offence. It is to be expected that there would be some degree of planning undertaken by the Defendants prior to commissioning the Oztech Offence and the First Bellagio Offence. The evidence before the Court does not support a conclusion that the Defendants engaged in a degree of planning that was beyond what would be ordinarily expected for these offences, such that the planning undertaken constitutes a circumstance of aggravation of these offences.

[23]

Guilty pleas

The Defendants entered a plea of guilty in relation to each offence on the first day of the contested trial that was scheduled to run for two days. Section 22 of the Sentencing Act provides that the Court must consider the fact that the Defendants pleaded guilty, when this occurred, and the circumstances of the pleas. In Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4, the Court of Criminal Appeal held that a sentencing judge is entitled to have regard to the "utilitarian value" of a plea of guilty, in addition to its relevance to the assessment of subjective mitigating factors such as contrition and remorse. The "utilitarian value" of a plea reflects the "objective consequences for the administration of justice" through the time and expense of prosecution that is avoided: Urdanegui v R [2021] NSWCCA 170 at [7]-[8].
Council submits that the Defendants had been provided with the brief that outlined Council's case in relation to the offences (including the evidence on which Council was to rely) "on multiple occasions" prior to the contested trial. Notwithstanding this, Council was notified of the Defendants intention to enter guilty pleas late on the day prior to the commencement of the contested trial and entered those pleas on the first day of the trial. Given this, Council was put to the expense of preparing for a contested trial that did not proceed. The Court also had to bear the time and expense of providing facilities for a contested trial.
Council notes the general position that "[t]he utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence" from R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 ('R v Thomson') at [160]. Council submits that the Defendants' guilty pleas were entered so late that they had little utilitarian value: R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 at [32]. In particular, the community was not "spared the expense of a contested trial": Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74 at [22] in circumstances where significant preparatory work had been undertaken. In the circumstances, Council submits that while a discount of 10% "might" be available, it is not warranted. Instead, if the Court was minded to allow a discount of sentence, 5% represents a more appropriate amount.
While the Defendants acknowledge that their guilty pleas were not entered at the first opportunity, they submit that the pleas still have some utilitarian value. The Defendants contend that the pleas "significantly reduce the amount of the Court's time" to be occupied by the matters.

[24]

Pre-trial disclosure and assistance to authorities

The agreed facts indicate that Mr Hosn, as the common sole director of both of the Defendants, initially adopted a "recalcitrant and hostile attitude" which interfered with Council's investigation of the offences and did not assist the Court. While the Defendants concede this, they contend that Mr Hosn "reformed" his attitude to the offences as the Court process progressed. The Defendants contend that the "extensive" agreed facts "significantly" reduced the amount of evidence to be considered and the time required for the sentencing hearing. The Defendants submit that this should be given weight as a matter facilitating the administration of justice, with a broad reference to ss 21A(3)(k)-(l) and 22A of the Sentencing Act.
Council acknowledges that s 21A(3)(l) of the Sentencing Act allows for pre-trial disclosure to be a mitigating factor on sentence but contends that the Defendants have not disclosed anything. Council submits that the Defendants did not attend or participate in the Court process and in fact had "sought to interfere with the smooth running" of the Court process. Council further contends that the Defendants provided no assistance to authorities for the purposes of s 21A(3)(m) of the Sentencing Act, which provides that "assistance by the offender to law enforcement authorities (as provided by section 23)" is a mitigating factor. Rather, Mr Hosn demonstrated a recalcitrant and unhelpful attitude at various stages during the Court process. This included threatening Council staff, making threats to, and false claims about, Council's solicitor, and making unwarranted and unwanted contact with the Court.
I do not consider that the evidence supports, on the balance of probabilities, a finding that the matters set out in ss 21A(3)(l)-(m) of the Sentencing Act are mitigating factors on sentence (where s 21A(3)(k) has been addressed above). While accepting that the Defendants ultimately collaborated on the production of the agreed facts, I consider this provided a small positive benefit in the context of the Defendants' challenging behaviour during the broader Court process. I am cognisant of the significant period of time prior to the contested trial in which the Defendants were not cooperative with, or responsive to, Council. I consider that the evidence before the Court, and in particular the affidavits of Mr Sinai and Mr Shneider, provide ample examples of the Defendants, through their common sole director Mr Hosn, disrupting the work of Council, Council's solicitors, and the Court, and therefore interfering with the administration of justice.

[25]

Awareness of consequences

The Defendants submit that Mr Hosn was suffering from psychosis at the time the offences were committed by the Defendants, and that this is relevant to whether he was fully aware of his actions for the purposes of s 21A(3)(j) of the Sentencing Act. The Defendants accept that pursuant to s 21A(5AA), "the self-induced intoxication of the offender at the time the offence was committed is not to be taken into account as a mitigating factor" and as Mr Hosn's psychosis was drug induced, this limits the weight that can be given to this mitigating factor. Further, as noted above, in oral submissions, counsel for the Defendants confirmed they accepted that the evidence before the Court indicates that the Defendants were aware, they were committing the offences.
Council submits that there is "no qualification or quantification about the psychological impacts that the psychosis had on the offending behaviour" of the Defendants. Further, there is no evidence before the Court to support any mitigation of the sentence imposed for the offending by the Defendants on the basis that Mr Hosn, as common sole director, was suffering from psychosis or other mental health issues that would impact his decision-making.
In considering this factor, I have referred to the statement of Mr Hosn, and the attached copy of Mr Hosn's "Discharge Summary Report" dated 21 October 2019, which as the Defendants properly accept, postdates each of the offences. In summary, the following information can be gleaned from the Discharge Summary Report: 1. Mr Hosn was admitted to the mental health high dependency unit of a hospital on 18 October 2019 following family concern for his mental health in the context of drug use; 2. When in hospital, Mr Hosn "settled" on antipsychotic medication; 3. At the time of discharge from hospital on 21 October 2019, Mr Hosn denied all psychotic and mood symptoms, and no symptoms were objectively observed; 4. Mr Hosn was "happy" to attend a rehabilitation clinic for ongoing care of substance misuse issues; and 5. On discharge the clinical impression indicated "[d]rug induced psychosis now resolved on a background of cluster B personality and ongoing substance use", and further that owing to Mr Hosn's underlying personality structure and ongoing substance misuse he "will present a chronic risk of self harm, misadventure, aggression and death that is not modifiable through hospital admission".

[26]

Remorse

An expression of remorse may be a mitigating factor in sentencing pursuant to s 21A(3)(i) of the Sentencing Act, 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),
The Defendants submit that they (through Mr Hosn) have expressed remorse by apologising and acknowledging that the actions undertaken by him, on behalf of the Defendants, were wrong. In oral submissions, the Defendants sought to draw a distinction between Mr Hosn's initial recalcitrant conduct, and his subsequent reformed attitude. The Defendants submit that after receiving treatment, and upon reflection, Mr Hosn now understands that the commission of the offences was wrong.
Council submits that there has been no contrition or remorse by the Defendants, and that this means there should be no further discount beyond any discount for the pleas of guilty (which, on Council's submission is not evidence of remorse: R v Power [1999] NSWCCA 25 at [21]). However, I note that the agreed facts were that following the commencement of the sentence proceedings, Mr Hosn expressed remorse.
Pursuant to s 21A(3)(i) of the Sentencing Act there are two elements to be considered when assessing whether remorse is a mitigating factor in sentencing the Defendants. First, the Defendants must accept responsibility for their actions. I accept that Mr Hosn, as the common sole director of both the Defendants, has expressed regret for his actions in the development of the six unlawful dwellings, and that he has reflected on the circumstances in which the offences were committed. Second, the Defendants must also acknowledge or make reparations for any injury, loss, or damage caused by their actions. I consider that the statement of Mr Hosn fails to meaningfully engage with the effects of the offending conduct of the Defendants, such that this condition has not been met.
Given this, the Defendants have not led sufficient evidence to support a conclusion that the Defendants are remorseful for the commission of the offences. As noted by Preston J in Waste Recycling at [203] (and cited often since), "[c]ontrition and remorse will be more readily shown by the offender taking actions, rather than offering smooth apologies through their legal representatives". His Honour identified four forms that actions showing contrition and remorse could take, including: first, actions to rectify any harm caused; second, voluntarily reporting the offence and any harm caused; third, actions to address the causes of the offence; and fourth, personal appearances and evidence in court: Waste Recycling at [203]-[215]. The Defendants did not voluntarily report the Oztech Offence or the First Bellagio Offence. Once these offences had been identified by Council, the Defendants did not attempt to rectify the harm caused, or address the cause of the offences, by demolishing the unlawful dwellings as required by the development control orders, leading to the commission of the Second Bellagio Offence.

[27]

Previous convictions

The agreed facts indicate that the Defendants had not been previously convicted of an offence under planning laws when the unlawful dwellings were constructed, and further, have not been convicted of any further offences under planning laws since that time.
Council notes that while lack of prior criminality is a factor in sentencing, citing Camilleri's Stock Feeds at 701 and s 21A(3)(e) of the Sentencing Act, a lack of conviction should not result in a sentence that does not reflect the objective seriousness of the offending.
Given this, I accept that, on the balance of probabilities, the lack of prior convictions for environmental offences is a mitigating factor pursuant to s 21A(3)(e) of the Sentencing Act and relevant to the subjective circumstances of the Defendants. I take this into account when assessing the appropriate sentence for the offences.

[28]

Likelihood of reoffending and prospects of rehabilitation

The Defendants submit that they are unlikely to reoffend and have good prospects of rehabilitation, in circumstances where their common sole director Mr Hosn was "seriously unwell and suffering from substance abuse and drug-induced psychosis at the time the offences were committed" but has subsequently received inpatient treatment and been discharged. Further, as a result of Mr Hosn's incarceration at a correction centre, the affairs of the Defendants have been outside his control as they are being managed by his second cousin, Mr El-Hessen.
I have considered the evidence before the Court in relation to Mr Hosn's mental health at the time the offences were committed (where the unlawful dwellings appear to have been first contemplated in October 2017 and constructed between June and October 2018) as well as after the commission of the offences. In support of Mr Hosn's contention that he was seriously unwell and suffering from substance abuse and drug-induced psychosis, he provided a Discharge Summary Report which I have earlier summarised.
I consider that there is insufficient evidence to support the Defendants' contention that they are unlikely to reoffend and have good prospects of rehabilitation, on the basis of Mr Hosn's recovery and rehabilitation. In coming to this conclusion, I note the following: 1. The Discharge Summary Report is a short summary prepared on Mr Hosn's discharge, after three days, from a hospital's mental health high dependency unit and relates to a time approximately a year after the Oztech Offence and the First Bellagio Offence were committed and does not provide any specific insight into Mr Hosn's mental state at the time of the offending; 2. The Discharge Summary Report indicates that Mr Hosn was "happy" to attend rehabilitation for substance abuse, but no further evidence of this rehabilitation or its outcome was provided by Mr Hosn; 3. The Discharge Summary Report suggests that Mr Hosn presents a "chronic risk of self harm, misadventure, aggression and death" which, in the absence of evidence of ongoing rehabilitation, does not support a finding that the Defendants, in circumstances where Mr Hosn is the sole director of each of the Defendants, are unlikely to reoffend and have good prospects of rehabilitation; and 4. No evidence has been provided by Mr El-Hessen regarding the length of time for which he is expected to manage Mr Hosn's affairs, nor any support that would be provided to Mr Hosn subsequent to him regaining control of his affairs.

[29]

General and specific deterrence

When sentencing the Defendants, specific and general deterrence may be taken into account: Weribone v R [2018] NSWCCA 172 at [15]; s 3A(b) of the Sentencing Act.

[30]

General deterrence

Council submits that consideration of general deterrence is important when sentencing offences against the EPA Act, by reference to judicial commentary in previous cases. Council notes the role of deterrence in supporting the integrity of the system of planning and development control, where this system would be ineffective if development was undertaken without consent. Council also submits that general deterrence is required to ensure the integrity of development control orders issued by Council, to "send a message to the community as a whole that [d]evelopment [c]ontrol [o]rders must be complied with and must not be ignored".
General deterrence is relevant to discouraging other persons from committing similar offences to those committed by the Defendants. In the context of these proceedings, individuals and corporations need to be deterred from first, seeking to undertake development without obtaining development consent; and second, failing to comply with development control orders that are validly issued to them.
I consider that general deterrence is an important consideration when assessing an appropriate sentence for environmental offences. As noted by Preston J in Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278, in the context of a pollution offence: "[65] The sentence of the Court is an important denunciation of the conduct of the defendant. [66] The sentence must also serve as a public deterrent. It is the duty of the Court to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who might otherwise be tempted by the prospect that only a light punishment will be imposed: R v Rushby (1977) 1 NSWLR 594 at 597-598. [67] This factor is particularly relevant to environmental offences. Persons will not be deterred from committing environmental offences by nominal fines: Environment Protection Authority v Capdate Pty Limited (1993) 78 LGERA 349 at 354; and Director-General, National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 (27 September 2002) at [85] and [93]. [68] The deterrent effect of a fine must send an important message that laws requiring the conservation of the environment and compliance with approvals to carry out activities that may harm the environment, must be complied with. Also, the community must be satisfied that, by the Court's sentence, the offender is given his just desserts."

[31]

Specific deterrence

Council submits that specific deterrence is required in these proceedings, in circumstances where the Defendants and their common sole director are involved in property development and construction in the community.
In circumstances where Oztech is a building company (and had undertaken other developments), Bellagio owns the Land, and the director of both Defendants, Mr Hosn, is involved in building and construction, I accept this submission and consider it appropriate to take specific deterrence into account when assessing an appropriate sentence. In addition, Bellagio has shown an ongoing reticence to comply with the DCO, such that it remained uncomplied with at the time of the sentencing hearing.
Counsel for the Defendants stated that Oztech is not presently trading but that there is no intention to wind up the corporation, such that Oztech may begin trading again in the future. Bellagio continues to own property (the evidence of Mr El-Hessen is that Bellagio, Mr Hosn and other companies controlled by Mr Hosn collectively own 28 properties, and Bellagio owns and collects rent from 11 properties, including the six dwellings on the Land), and may need to engage with the system of planning and development control from time to time in relation to those properties. Given this, I find it is important that the appropriate sentence clearly dissuades Oztech and Bellagio from committing any future offences.
In coming to this conclusion in relation to deterrence, I have also considered the appropriateness of emphasising deterrence given the subjective circumstances of the Defendants and am comfortable that the approach I have taken is suitable.

[32]

Even-handedness

When sentencing the Defendants in relation to each offence, the Court should seek to impose a sentence that is consistent with any patterns of sentencing for like offences: R v Oliver (1980) 7 A Crim R 174 at 177. However, it is well recognised that "[t]here is always a difficulty in attempting to compare the penalty in one case with the penalty in another because of the wide divergence of facts and circumstances": Axer at 365. As such, consideration of even-handedness does not limit the Court's discretion when imposing a sentence.
Council provides details of eight decisions related to breaches of s 4.2(1) (and the former s 125(1)) of the EPA Act, which it submits provide guidance to the Court in relation to the penalties to be imposed for the Oztech Offence and First Bellagio Offence. The Defendants submit that the decisions identified by Council illustrate that penalties imposed by this Court for offences against s 4.2(1) of the EPA Act have been "well below" the maximum ($2 million) penalty.
In relation to the Second Bellagio Offence, Council indicates there have been nine Local Court convictions for offences against s 9.37(1) of the EPA Act in the period from 24 September 2018 to June 2019, resulting in fines of between $1,500 and $60,000 being imposed (Local Court statistics were proffered by Council on the basis that they were more up-to-date than those for this Court). The Defendants submit that these previous decisions provide limited assistance as to the range of penalties that have been imposed for breaches of s 9.37(1) of the EPA Act.
I have had regard to each of the specific cases identified by Council in relation to s 4.2(1) (and the former s 125(1)) of the EPA Act including: Burwood Council v Pratelli [2014] NSWLEC 28; Burwood v Doueihi; Pesic v Sutherland Shire Council [2019] NSWLEC 38; Cumberland Council v Badaoui Habib [2017] NSWLEC 18; Ku-ring-gai Council v Baynie [2017] NSWLEC 172; Hijazi v Georges River Council [2020] NSWLEC 36; Chahoud v Penrith City Council [2020] NSWLEC 167; Cumberland Council v See Win Holdings Pty Ltd [2019] NSWLEC 15. In the interests of brevity, I will not set out the details of the objective circumstances of the offences, the subjective circumstances of the offenders, and the penalties imposed in those cases. However, I have had regard to these details and the reasoning in each of the decisions in determining the sentences in these proceedings. I have also taken into account the cases involving breaches of s 4.2(1) (and the former s 125(1)) of the EPA Act recently considered by Pepper J in Burwood v Abdul-Rahman at [109] (to the extent they differ from the cases identified by Council above).

[33]

Jurisdictional forum

In Harris v Harrison (2014) 86 NSWLR 422; [2014] NSWCCA 84 at [92], the Court of Criminal Appeal indicated that where the offence could have been prosecuted in the Local Court with a lower jurisdictional maximum, it is well established that this may be a relevant sentencing consideration, citing R v Crombie [1999] NSWCCA 297 at [15]; R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317 at [37]-[42]. Simpson J concluded, at [97]-[98], that in circumstances where the offence was of low objective seriousness and could have been brought in the Local Court, the offence should have been treated as one suitable to be prosecuted in the Local Court, with its limitation on penalty. Given this, the total sentence imposed ought not to have exceeded the jurisdictional limit of the Local Court.
In assessing an appropriate sentence for the offences in these proceedings, I have considered Council's choice to commence prosecutions in the Land and Environment Court: s 9.57(1) of the EPA Act. Where I have found that the Defendants' offending is of medium objective seriousness, I do not consider it appropriate for the offences to have been prosecuted in the Local Court, and so give it limited weight.

[34]

Totality

The Defendants submit that the totality principle should be applied to the First Bellagio Offence and the Second Bellagio Offence, such that the penalty for the Second Bellagio Offence "should be minimal". In oral submissions, the Defendants highlighted that these two offences relate to the same dwellings and arose as a result of the same construction work, such that they are "closely related sets of circumstances and it's appropriate to take one into account when sentencing the other": Tcpt, 27 May 2021, p 11(21-23).
The totality principle is a sentencing principle which requires the Court to consider whether, having regard to the entirety of the criminal behaviour, the aggregate sentence imposed on an offender across a series of sentences is just and appropriate: Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 at 62-63; Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 ('Pearce') at [40]; Gittany v Sutherland at [196]. In R v Holder; R v Johnston [1983] 3 NSWLR 245 at 260, Street CJ noted: "The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straight-forward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences."
The process, when a court is considering totality, was outlined by McHugh, Hayne and Callinan JJ in Pearce at 624: "A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality".
I have considered the principle of totality in relation to the First Bellagio Offence and the Second Bellagio Offence. I note that the two offences relate to different statutory provisions within the EPA Act, with one relating to undertaking development without consent and the other relating to failure to comply with a development control order. In this respect, the characteristics of Bellagio's conduct in committing the two offences can be distinguished.

[35]

Legal costs

Council seeks orders that the Defendants pay its costs of the proceedings, as agreed or assessed.
I consider that it is appropriate that the Defendants pay the costs of Council as agreed or assessed, in accordance with s 257B of the Criminal Procedure Act 1986 (NSW).

[36]

Publication order

Specific submissions were made on behalf of the Defendants in relation to the appropriateness of the penalties that, pursuant to s 9.56 of the EPA Act, can be imposed under Pt 8.3 of the Protection of the Environment Operations Act 1997 (NSW) ('POEO Act'). The Defendants submit that any order pursuant to s 9.56 of the EPA Act would "disproportionate in this case" given the harm caused by the commission of the offences. Further, the orders for restoration and prevention which are available to the Court under s 245 of the POEO Act (noting the modifications to the application of that section pursuant to reg 285A of the Environmental Planning and Assessment Regulation 2000 (NSW)) are remedial mechanisms, rather than punitive measures.
Council did not make submissions in relation to s 9.56 of the EPA Act.
In the circumstances, I do not consider it to be appropriate to make an order under s 245 of the POEO Act for restoration or prevention. The health, safety and structural integrity of the six unlawful dwellings are unknown. I consider that the Court would require more evidence before making such an order.
However, I consider, given the nature and prevalence of the conduct the subject of these offences, that it is appropriate for publication orders under s 250(1)(a) of the POEO Act to be made, requiring the Defendants to publicise the offences that they committed and their consequences. The publication of information relating to environmental offences and their repercussions enhances public perception and the deterrent effect of the sentence imposed: Waste Recycling at [242]; Environment Protection Authority v Dyno Nobel Asia Pacific Pty Ltd [2017] NSWLEC 64 at [163]; Environment Protection Authority v Crown in the Right of New South Wales [2019] NSWLEC 178 at [84]-[86].
I consider that publication orders raise awareness in the community of the system of planning and development control, and more specifically, remind members of the community that the EPA Act imposes obligations on people undertaking construction and development, that they must: identify whether development consent under the EPA Act is required; obtain any required development consent; and then undertake construction and development in accordance with the terms of that development consent. This has the effect of supporting the integrity of the system of planning and development control.

[37]

Appropriate sentence for each offence

Synthesising the objective circumstances of each offence, the subjective circumstances of Oztech and Bellagio, and the other sentencing factors outlined above, I consider that the appropriate monetary penalties for the offences are: 1. $105,000 for the Oztech Offence, which should be reduced to $94,500 to reflect the discount of 10% for the utilitarian value of the guilty plea entered by Oztech; 2. $95,000 for the First Bellagio Offence, which should be reduced to $85,500 to reflect the discount of 10% for the utilitarian value of the guilty plea entered by Bellagio; and 3. $22,000 for the Second Bellagio Offence, which should be reduced to $19,800 to reflect the discount of 10% for the utilitarian value of the guilty plea entered by Bellagio.
Further, the application of the totality principle makes it appropriate to reduce the aggregate amount of the monetary penalties for the offences committed by Bellagio by 10%.
This results in the following monetary penalties: 1. $94,500 for the Oztech Offence; 2. $76,950 for the First Bellagio Offence; and 3. $17,820 for the Second Bellagio Offence.

[38]

In proceedings 2019/00129287: 1. Oztech Developments Pty Ltd ('Oztech') is convicted of the offence against s 4.2(1) of the Environmental Planning and Assessment Act 1979 (NSW) as charged. 2. Oztech is fined the sum of $94,500. 3. Oztech is to pay the costs of Fairfield City Council ('Council') as agreed or assessed, pursuant to s 257B of the Criminal Procedure Act 1986 (NSW). 4. Pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997 (NSW) ('POEO Act'), Oztech, at its expense, is to: 1. within 42 days of the date of this order, cause a notice to be placed within the first 12 pages of the Sydney Morning Herald and the Daily Telegraph at a minimum size of 10cm x 18cm, with the text of such notice to be as set out in Annexure "B" to these orders; and 2. within 56 days of the date of this order, provide to Council, a complete copy of the pages of the Sydney Morning Herald and the Daily Telegraph on which the notices that were published in accordance with Order (4)(a) above, appear.

[39]

In proceedings 2019/00129410: 1. Bellagio Investments Pty Ltd ('Bellagio') is convicted of the offence against ss 9.50(3A) and 4.2(1) of the Environmental Planning and Assessment Act 1979 (NSW) as charged. 2. Bellagio is fined the sum of $76,950. 3. Bellagio is to pay the costs of Fairfield City Council ('Council') as agreed or assessed, pursuant to s 257B of the Criminal Procedure Act 1986 (NSW). 4. Pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997 (NSW) ('POEO Act'), Bellagio, at its expense, is to: 1. within 42 days of the date of this order, cause a notice to be placed within the first 12 pages of the Sydney Morning Herald and the Daily Telegraph at a minimum size of 10cm x 18cm, with the text of such notice to be as set out in Annexure "B" to these orders; and 2. within 56 days of the date of this order, provide to Council, a complete copy of the pages of the Sydney Morning Herald and the Daily Telegraph on which the notices that were published in accordance with Order (4)(a) above, appear.

[40]

In proceedings 2019/00129461: 1. Bellagio Investments Pty Ltd ('Bellagio') is convicted of the offence against s 9.37(1) of the Environmental Planning and Assessment Act 1979 (NSW) as charged (as amended). 2. Bellagio is fined the sum of $17,820. 3. Bellagio is to pay the costs of Fairfield City Council ('Council') as agreed or assessed, pursuant to s 257B of the Criminal Procedure Act 1986 (NSW). 4. Pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997 (NSW) ('POEO Act'), Bellagio, at its expense, is to: 1. within 42 days of the date of this order, cause a notice to be placed within the first 12 pages of the Sydney Morning Herald and the Daily Telegraph at a minimum size of 10cm x 18cm, with the text of such notice to be as set out in Annexure "B" to these orders; and 2. within 56 days of the date of this order, provide to Council, a complete copy of the pages of the Sydney Morning Herald and the Daily Telegraph on which the notices that were published in accordance with Order (4)(a) above, appear.

[41]

Annexure A (429703, pdf) Annexure B (97482, pdf) 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: 02 August 2021

Fairfield City Council v Oztech Developments Pty Ltd; Fairfield City Council v Bellagio Investments Pty Ltd

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