Franks v Woollahra Municipal Council

Land and Environment Court (NSW)|2007-07-18|Before: Pain J, Mr P

CITATION : Franks v Woollahra Municipal Council [2007] NSWLEC 461

APPLICANT William Leslie Franks PARTIES : RESPONDENT Woollahra Municipal Council

Appeal :- appeal from Local Court against severity of sentence - evidence to be considered on appeal from Local Court - whether s 10 Crimes (Sentencing Procedure) Act can be applied in appeal on sentence. KEY ISSUES: Prosecution:- carrying out development without development consent - plea of guilty - whether culpability lower because appellent thought building work lawful - no environmental harm - importance of general deterrence - mitigating factors considered

Crimes (Appeal and Review) Act 2001 s 11, s 17, s 20, s 21A(3), s 31, s 33, s 37, s39 Crimes (Sentencing Procedure) Act s 3A, s 10 Criminal Appeal Act 1912 s 5AA LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 76A(1)(a), s 125(1) Fines Act 1996 s 6 Woollahra Local Environmental Plan 1995 Woollahra Municipal Council Development Control Plan - Exempt and Complying Development 2004

Advanced Arbor Service Pty Ltd v Strathfield Municipal Council [2006] NSWLEC 485; Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; Carlino v Leichhardt Municipal Council (2005) 144 LGERA 235; Cliftleigh Haulage Pty Limited v Byron Shire Council [2005] NSWLEC 692; Cooper v Coffs Harbour City Council (1997) 97 LGERA 125; CASES CITED: Denning v Department of Environment and Conservation [2007] NSWLEC 258; Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; Parker v Director of Public Prosecutions & Anor (1992) 28 NSWLR 282; R v Doan (2000) 50 NSWLR 115; R v Kent Justices [1936] 1 KB 547; R v Thomson; R v Houlton (2000) 49 NSWLR 383; Veen v The Queen (1978-1979) 143 CLR 458

APPLICANT Mr B Galloway (solicitor) SOLICITOR Galloways Solicitors and Attorneys LEGAL REPRESENTATIVES: RESPONDENT Mr P Rigg (solicitor) SOLICITOR Deacons

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

60001 of 2007 William Franks v Woollahra Municipal Council

JUDGMENT 1 Her Honour: The Appellant Mr Franks has appealed against the severity of the sentence imposed at Waverley Local Court by Magistrate Heilpern on 4 December 2006 in case no 00071802/06/198 in relation to a prosecution for a breach of s 76A(1)(a) of the Environmental Planning and Assessment Act 1979 (the EP&A Act). The Appellant appeared for himself before Waverley Local Court. He was represented by a solicitor in this appeal.

2 In the proceedings before Waverley Local Court, the Appellant pleaded guilty to an offence against s 125(1) of the EP&A Act, that he carried out development without development consent in contravention of s 76A(1) of the EP&A Act at his house at 6 Gap Road, Watsons Bay. On 4 December 2006, the Appellant was convicted as charged, fined $20,000 and ordered to pay the Prosecutor's costs of $5,000 and court costs of $67. 3 The details of the charge are set out in the Court Attendance Notice in Waverley Local Court as follows: Description of offence: The Defendant contrary to section 125(1) of the Environmental Planning and Assessment Act 1979 caused development to be carried out which development consent was required to be obtained under Woollahra Local Environmental Plan 1995 (an environmental planning instrument made and in force under the Environmental Planning and Assessment Act 1979). Time & Date of Offence: On or about 11 April 2006

Short particulars:

The Defendant at the date of the said offence, caused construction work at 6 Gap Rd, Watsons Bay ("the Property") in the State of New South Wales to be carried out.
On or about 11 April 2006, the Defendant contrary to section 125(1) of the Environmental Planning and Assessment Act 1979, caused development to be carried out for which development consent was required to be obtained under Woollahra Local Environmental Plan 1995 (an environmental planning instrument made and in force under the Environmental Planning and Assessment Act 1979) but was not obtained thereby being a thing prohibited to be done under section 76A(1) of the Environmental Planning and Assessment Act 1979 .
The development carried out comprised the following: (1) Demolition of ground floor slab in games room and family room on basement level. (2) Excavation of rock bed on Northern boundary outside of family room and basement level. (Evidence suggests that southern boundary is the correct boundary). (3) Construction of storeroom on basement level. (4) Construction of laundry on ground floor level

(5) Construction of storeroom off bedroom 1 on ground floor level.

(6) Construction of storeroom off existing bathroom on ground floor level.

Statutory Provision Describing Offence: Section 125(1) Environmental Planning and Assessment Act 1979 4 Section 76A(1)(a) of the EP&A Act provides: 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. 5 Section 125(1) of the EP&A Act states that it is an offence not to comply with that Act. 6 The relevant environmental planning instrument is Woollahra Local Environmental Plan 1995 (WLEP 1995). The land is within Zone No 2(a) - (Residential "A" Zone) under WLEP 1995. In that zone, development for the purpose of dwellings is permissible but only with consent. Time for lodgement of appeal 7 An appeal against the severity of sentence is made to this Court as of right under s 31(1) of the Crimes (Appeal and Review) Act 2001 (the Appeal Act). The appeal was lodged on 29 January 2007, outside the twenty-eight day period in which the appeal was required to be lodged by s 31(2)(a) of the Appeal Act. 8 It is therefore necessary that leave be granted by this Court for the lodgement of the application for leave to appeal, as is provided for under s 33 of the Appeal Act. The appeal has been lodged within the absolute three month time limit specified in s 33(2). In his Application for Leave to Appeal, the Appellant stated that when he telephoned Waverley Local Court from Queensland at the end of December, he was told that his appeal could be filed in Queensland. On 3 January 2007 he went to a court in Queensland where he was told he had to file the appeal in New South Wales. On returning from Queensland he went overseas until 29 January 2007, when he lodged the appeal at Waverley Local Court. I give leave for the appeal to be lodged outside the 28 day period specified in s 31(2)(a).

Evidence before Waverley Local Court 9 The appeal is to be dealt with by way of a rehearing on the basis of certified transcripts of evidence given in the local court hearing: s 37(1) of the Appeal Act. Fresh evidence may be adduced, but only by leave of this Court if the Court is satisfied that it is in the interests of justice that fresh evidence be adduced: s 37(2) of the Appeal Act.

10 The transcript of the proceedings before Waverley Local Court was tendered as Exhibit A. The Court file of documents in those proceedings were tendered as Exhibit B. A table indexing the documents is as follows:

Date Document Description 29 January 2007 Appeal Class 6 Form filed in Waverley Court and Land and Environment Court setting out details of appellant, Local Court decision, Act under which proceedings are brought and brief outline of reasons for appeal. 29 January 2007 Application for Leave to Appeal Similar to above, filed at Waverley Notice of Penalty Notice from Registrar of the Local Court to appellant to pay $25,067 by 1 January 2007 16 August 2006 CAN Cover Sheet Local Court document containing hearing information 4 December 2006 26 July 2006 Court Attendance Notice Local Court document setting out details of listing, parties, offence and statement of service. 14 August 2006 Written Notice of Pleading Local Court form completed by Appellant, containing election to plead not guilty and ask for matter to be listed for hearing. Document summarising factual background of the matter attaching: a. Photographs of the works taken by Council's Building and Compliance Officer on 2 March 2006 Statement of Facts b. Plan forming part of development application lodged by appellant with Council on 8 March 2006 c. Photographs of the works taken by Council's Building and Compliance Officer on 19 April 2006 d. Letter from council to Appellant regarding building certificate, 29 November 2006 Submissions on penalty from Prosecutor handed up at Local Court hearing 10 April 2000 Woollahra Municipal Council Development Control Plan -Exempt and Complying Development Council document setting out objectives, defining exempt and complying development and prescribing general development criteria for these categories of development. 1999 Extract from Woollahra Residential Development Control Plan Extracts regarding building size and location, site facilities. Photographs Photographs of site showing pipes/airconditioning intended to be removed, some labelled "externally before". 3 November 2006 Owner Building Permit Permit for DA 122/2006, "alterations to home include store room, sewerage works". Photocopies of Appellant's identification cards 21 September 2006 Letter from Alba Letter from consulting engineers detailing inspection of site on 19 September 2006 and listing works appearing to be adequate to withstand certain loads in accordance with loading code. + Associates to Appellant 17 October 2006 Letter from Woollahra Municipal Council to Appellant Letter setting out extract from Council Notice of Determination of 8 August 2006 and requesting submission of a Building Certificate. 8 May 2006 Letter from Anthony Mitchell to Council Letter advising owner of adjoining property to number 6 Gap Road has no objection to proposed work. 9 May 2006 Letter from Mr S and Mr D Macarthur to Council Letter advising owner of adjoining property at rear to number 6 Gap Road has no objection to proposed work. 9 May 2006 Letter from Mrs E Page to Council Letter advising owner of neighbouring property to number 6 Gap Road has no objection to proposed work. 9 May 2006 Letter from Paul and Dada Vukoman to Council Letter advising owner of adjoining property at rear to number 6 Gap Road has no objection to proposed work. Photographs Photographs of site relied on by Appellant 30 November 2006 Invoice for legal services Invoice for legal services provided to Council in amount of $624.14 29 September 2006 Invoice for legal services Invoice for legal services provided to Council in amount of $3188.57 28 July Invoice for legal services Invoice for legal services provided to Council in amount of $1918.07 2006 16 August 2006 Court notice to Appellant Notice informing Appellant of hearing on 4 December 2006 at Local Court Waverley

11 The Statement of Facts tendered as the basis of the charge to which the Appellant pleaded guilty in Waverley Local Court is as follows: 1.1 The Defendant is the owner of the property at 6 Gap Road, Watsons Bay, being Lot 1 in DP 81865. 1.2 On 2 March 2006 Council's Building and Compliance Officer, Renee Turner, conducted an inspection of building works that had been occurring on the property, in response to resident complaints. 1.3 Ms Turner discovered the following building works, caused by the Defendant, taking place without consent: (1) demolition of the ground floor slab in the games room and family room on the basement level; (2) excavation of the rock bed on the southern boundary outside the family room on the basement level; (3) construction of a storeroom on the basement level; (4) construction of a laundry on the ground floor level; (5) construction of a storeroom off bedroom 1 on the ground floor level; and (6) construction of a storeroom off the existing bathroom on the ground floor level. 1.4 Photographs of the works taken by Ms Turner are attached and marked Attachment A.

[These show excavation with jackhammers on the southern side of the property, destruction of ground floor slab in downstairs games room area and family room area, the bricking in of existing windows in the games room.]

1.5 On 8 March 2006 the Defendant was served with a notice from Council directing the Defendant to cease the work being carried out without consent. 1.6 On 8 March 2006 the Defendant lodged a development application with Council for the works. A plan prepared on behalf of the Defendant, showing the extent of the proposed works shaded in colour, attached and marked Attachment B. (On Waverley Local Court file) 1.7 On 11 April 2006 Ms Turner and Nick Economou, Leader - Development Control attend the property and Mr Economou directed the Defendant in the following terms: It is my responsibility to advise you that the work will have to cease, as the work you have carried out requires consent from Council which you have not obtained. 1.8 On 19 April 2006 Ms Turner conducted an inspection of the property and observed that the works were continuing without consent. Photographs of the works taken by Ms Turner attached and marked Attachment C. 1.9 On 8 August 2006 the Defendant's development application was refused. 1.10 On 2 November 2006 the Defendant lodged a building certificate application with the Council. 1.11 On 29 November 2006 Council wrote to the Defendant regarding the building certificate …

12 The Prosecutor relied on the Statement of Facts and handed up submissions on sentence, which are in the local court file also.

13 The transcript from the Waverley Local Court proceedings records that the Appellant stated he wished to plead guilty with an explanation and he handed up the Woollahra Municipal Council Development Control Plan - Exempt and Complying Development 2004 (the DCP) and submitted that his opinion that the building work could be conducted pursuant to that DCP was a reasonable one. The transcript shows that the magistrate asked him did he wish to plead guilty on the basis of all the particulars identified in the charge and he replied that he did plead guilty, with an explanation. The Appellant handed up photographs that he said demonstrated clearly the state of his house in relation to water penetration and rising damp. He submitted the house was unliveable and unusable with $40,000 to $60,000 worth of damage caused to carpets and personal possessions, paintings and business records. All possessions had to be moved to the upper levels of the house for storage. These difficulties were compounded because his daughter had started running a garment business from the house and clothes were being damaged. The Appellant, who is an architect and licensed builder, also stated that he was aware from having run a practice in the local area that it is not unusual for an approval to take six to twelve months. He considered he had little alternative but to carry out building work he considered reasonable at the time he commenced it. Also before the magistrate were letters from several neighbours stating they did not have any complaints about the work undertaken by the Appellant. Additional evidence 14 Additional evidence can be relied upon if leave is given by the Court pursuant to s 37(2) of the Appeal Act that it is in the interests of justice. The Appellant applied for leave to rely on his affidavit sworn 16 July 2007 and a lengthy Statement of Evidence prepared by him dated 4 July 2007. 15 The additional evidence sought to be relied on falls into three categories: (i) new evidence about what the Appellant believed about the operation of the Council's DCP in relation to the building work particularised in the charge (ii) evidence about events which have occurred since the hearing before the magistrate (iii) evidence about the Appellant's personal circumstances and financial circumstances which was not before the magistrate, and are matters that would generally be taken into account in mitigation. 16 I gave leave for part of the affidavit to be relied upon (not par 9 -14). Paragraph 15 of the affidavit deals particularly with matters in mitigation such as the Appellant's age and personal circumstances. I also gave leave for parts of the Statement of Evidence to be relied upon. I note that part 6 was not read. The Statement contained material which was relevant to matters which the Appellant considered he should have had greater opportunity to put before the magistrate in relation to the application of the DCP. The Council did not oppose the additional evidence being read on the basis that it would have the opportunity to cross-examine the Appellant. 17 The Appellant gave short oral evidence about his opinion that the building work had no negative impacts because there was no additional site coverage or height as all the work was undertaken in void areas and was not substantial. All that was built was additional storage space. The building aesthetics have been improved and there is no detrimental impact on neighbours or the streetscape. He also gave oral evidence about volunteer works he undertook on a steering committee for changes to the Watsons Bay commercial centre, and on the reconfiguration of the Robertson Park development at Watsons Bay. He also provided assistance to the Council in the development of the DCP for Watsons Bay. He also gave evidence about his financial circumstances to the effect that he had had a limited income for a number of years due to ill-health. He was cross-examined by the Council's solicitor and agreed that he had built four new additional rooms but disagreed that the amount of extra space was extensive. He also gave evidence of land he owned at Rose Bay which is being developed jointly for four units with others using a line of credit facility. His house at 6 Gap Road Watsons Bay is owned with his wife and is subject to a substantial mortgage. He has about $5,000 in savings. 18 I consider it is in the interests of justice that I consider the evidence identified in all the categories in order for the issues sought to be raised in this appeal to be properly understood and canvassed. As will become clear, the extent to which I give some of the evidence weight needs consideration. Appellant's submissions 19 The Appellant's solicitor submitted that, firstly, s 10(1) of the Crimes (Sentencing Procedure) Act 1999 should apply. Secondly, the penalty should be reduced. Thirdly, if the Court was minded to increase the penalty, notice to the Appellant must be given so that he can consider if he wishes to withdraw the appeal as provided for in Parker v Director of Public Prosecutions & Anor (1992) 28 NSWLR 282 at 295. The Appellant's Statement of Evidence and affidavit stated that there were errors on the part of the magistrate in relation to his understanding of the plans and photographs in evidence in the hearing which resulted in a penalty being imposed that was unjust and too severe. 20 The Appellant argued that he had to act urgently because of the poor state of his house due to severe damp problems. The photographs relied on in the local court proceedings show the conditions he and his family were living in. Although asked to stop work by the Council he considered he had to continue with the work for his family's sake.

21 According to Mr Franks' affidavit he accepted that he needed to lodge a development application in relation to particulars of charge (4), construction of a laundry on the ground floor level and (5), construction of a storeroom off bedroom 1 on the ground floor level. He considered however that at the time it was done the work identified in the other four particulars could be undertaken in conformity with the DCP. He stated that he tried to address the magistrate on this at the hearing but was not able to do so to the extent necessary to make his case. Essentially he wishes to submit that his conduct was reasonable given that his interpretation of the DCP was an honest (if not reasonable, according to his solicitor) belief and therefore his culpability is low. 22 In relation to events subsequent to the Waverley Local Court hearing, the Statement of Evidence and the affidavit contain material concerning events subsequent to the hearing before the magistrate, such as the finalisation of the unauthorised building work and correspondence between the Appellant and the Council concerning the progress of the Appellant's application for a building certificate. On the basis of this evidence the Appellant submitted that he would be very likely to receive a building certificate for the work the subject of this charge.

Council's arguments 23 The Council argued the sentence was appropriate and should be maintained. General deterrence is an important consideration in offences concerning the breach of the EP&A Act given the prohibition in s 76A(1)(a); see Carlino v Leichhardt Municipal Council (2005) 144 LGERA 235. The Appellant's motive in doing part of the work giving rise to the offence was to create rooms for storage at ground floor and basement levels. The Council's solicitor submitted that the Appellant has the financial means to pay the fine imposed as he has substantial property assets. Therefore the appeal should be dismissed and the Appellant ordered to pay the Council's costs. Land and Environment Court approach on appeal 24 The approach of this Court to an appeal of this kind has been considered in numerous cases as being similar to that required previously under s 5AA of the Criminal Appeal Act 1912 (NSW) as identified in Cooper v Coffs Harbour City Council (1997) 97 LGERA 125 at 127-128: …an appeal under s 5AA is not restricted to a determination of whether the decision of the Court below was infected with error. It is a rehearing on the evidence given before the trial Court.

The width of the Court's jurisdiction when determining an appeal under this section is evidenced by s 5AA(4) which permits the Court to vacate the determination made by the trial court and to make any determination that the trial court could have made on the evidence heard on appeal. The Court is not concerned, as it would be in an ordinary appeal under s 5 of the Criminal Appeal Act, with whether the original determination was unsafe and unsatisfactory but whether the Court is independently of the same view as the trial court that the offence has been made out. The nature of the jurisdiction of this Court on an appeal under s 5AB was considered in Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority . It was held that an appeal under s 5AA was not a de novo rehearing but the Court was to consider the evidence before the trial court, together with any additional or substituted evidence admitted on the appeal, and resolve for itself afresh the ultimate issue for determination.

Shortly after the decision in Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority was delivered, s 5AA was amended by substituting a recasting of subs 3 and the insertion of subs 3A. These amendments, however, did no more than confirm the correctness of that decision. Subsections 3 and 3A of s 5AA now make it clear that an appeal under the section is to be determined on the evidence before the trial court unless leave is given by this Court for fresh, additional or substituted evidence to be adduced. See also Cliftleigh Haulage Pty Limited v Byron Shire Council [2005] NSWLEC 692 at [16]-[20].

25 Section 39(2) of the Appeal Act states that an appeal may be determined by setting aside the sentence, varying the sentence or dismissing the appeal. I will now consider the three matters raised by the Appellant's submissions. (i) Is the Court able to apply s 10(1) of the Crimes (Sentencing Procedure) Act in this appeal? 26 Section 10 of the Crimes (Sentencing Procedure) Act relevantly provides: (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed, … (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. 27 In Advanced Arbor Service Pty Ltd v Strathfield Municipal Council [2006] NSWLEC 485 Preston J held at [15] - [20] that on an appeal against sentence under the Appeal Act this Court does not have the power to quash the conviction. The appellant had sought in an appeal against sentence to have the Court reconsider the power under s 10(1)(a) of the Crimes (Sentencing Procedure) Act to make an order, without proceeding to conviction, dismissing the charge. Preston J held this approach was unavailable as it required the setting aside of the conviction imposed by the local court which could not occur in an appeal against sentence, only an appeal against conviction under s 39(1) of the Appeal Act. His Honour considered at [12] - [13] previous statutory provisions which did enable the court in an appeal against sentence to also quash the conviction. His Honour considered that position had now changed so that appellate courts no longer had the power to quash the conviction on an appeal against sentence, referring, inter alia, to R v Kent Justices [1936] 1 KB 547. This is the current situation under the Appeal Act, [14]. 28 The Appellant's solicitor argued that Arbor Services and Denning v Department of Environment and Conservation [2007] NSWLEC 258 were incorrect. The Second Reading speech does not suggest such a change of law was contemplated as it refers to the consolidation of the existing law. The equivalent appeal provisions concerning appeals to the District Court in s 11, s 17, s 20 in the Appeal Act are referred to. These are largely mirrored by s 31, s 37, s 39 in relation to appeals from the Local Court to the Land and Environment Court. 29 On appeal the judge is in the same position as the magistrate who sentenced the offender in the Local Court. It is a natural consequence of the Court's power to set aside or vary the sentence that it has the power to set aside the conviction under s 10 of the Crimes (Sentencing Procedure) Act. The submission was also made that the Appeal Act and the Crimes (Sentencing Procedure) Act both needed to be read together in relation to the meaning of "sentence" but precisely what was meant by that submission is unclear. 30 The Council argued that seeking to draw an analogy to procedures in the District Court is irrelevant. The rehearing on sentence in the District Court is not identical with that in the Land and Environment Court, contrast s 17 which allows fresh evidence on appeals to the District Court with appeals to the Land and Environment Court on sentence, which are based on the transcript, s 37(1). The finding of Preston J in Arbor Services is correct.

Finding on application of s 10 31 The Appellant's submissions would have had more force if cases had been provided which confirmed that the approach in the District Court in appeals on sentence were as the Appellant's solicitor argued. None were provided although my understanding is that the Appellant's solicitor was granted leave to file written submission after the hearing in order to do so. As identified by the Council the processes for appeal on sentence to the District Court are not identical to those in relation to the Land and Environment Court. Nothing in the Appellant's solicitor's submissions suggests that the reasoning of Preston J in Arbor Services is incorrect and I intend to follow it here. Accordingly, I do not consider that I can apply s 10 of the Crimes (Sentencing Procedure) Act in this appeal on sentence. 32 I should note that had I considered that s 10(1) could be applied I would not have applied it in the circumstances of this case. I do not consider the Appellant's culpability is trivial, nor are there extenuating circumstances which suggest it should apply.

(ii) Should penalty be reduced? 33 I must now consider whether the penalty imposed by the magistrate ought be reduced. Purposes of sentencing 34 Section 3A of the Crimes (Sentencing Procedure) Act sets out the purposes of sentencing. These have been considered in numerous cases, recently in an appeal from a Local Court in relation to environmental offences by Preston J in Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 at [101]-[106], especially [104] where his Honour held: There is a need for the upholding of the integrity of the system of planning and development control. This system depends on persons taking steps to obey the law by ascertaining when development consent is required and then obtaining development consent before carrying out development: Byron Shire Council v Fletcher [2005] NSWLEC 706 (25 November 2005) at [60]; Cameron v Eurobodalla Shire Council [2006] NSWLEC 47 (13 February 2006) at [72] and Byers v Leichhardt Municipal Council [2006] NSWLEC 82 (13 February 2006) at [83], [85]. 35 The sentence imposed must reflect the circumstances of the offence and the personal circumstances of the defendant; Veen v The Queen (1978-1979) 143 CLR 458.

Objective circumstances 36 There are a number of factors to consider in determining the objective gravity of the offence. The maximum penalty for the offence, here $1.1 million, is an important consideration, see Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683. That reflects how seriously Parliament views offences under that Act. Offences under the EP&A Act prosecuted in the Local Court have a jurisdictional maximum fine limit of $110,000 (s 127(3) of the EP&A Act). In R v Doan (2000) 50 NSWLR 115, Grove J (Spigelman CJ and Kirby J concurring) held that a local court exercising summary jurisdiction should impose a penalty reflecting the objective and subjective circumstances of the case "taking care only not to exceed the maximum jurisdictional limit". 37 I note there is no environmental harm alleged to have occurred as a result of the offence. There is no suggestion that the Council will require the building work to be varied or removed. 38 The Appellant's state of mind in committing the offences is relevant. The Appellant's evidence was that he had not worked much as an architect and/or builder due to ill health for 11 years. Those health problems meant that the damp problems affecting the house which required correction by the work giving rise to the offence got out of hand and required urgent attention due to the impact on his wife and daughter, the latter having difficulty running her business from the house because of the damp problems. The conduct which lead to this offence was a result of this concern for his family according to the Appellant. As identified in the cross-examination of the Appellant, and as is also clear from the plans lodged with the Council, the building work also provided additional useable space in the Appellant's home. His explanation as to why the work was needed and that he could not wait for development consent, while an explanation for his behaviour, is not a compelling reason in the context of an offence under s 125(1) of the EP&A Act to consider his actions were low in culpability.

39 It is clear that the Appellant sought to raise before the magistrate the terms of the DCP as the basis for suggesting that he had low culpability at the time the offence was committed. The DCP was before the magistrate but was not considered in detail by him. That is not surprising given that the magistrate considered he was dealing with a plea of guilty to the carrying out of specified building work without development consent and therefore not with matters which came within the DCP. 40 While the Appellant pleaded guilty on the basis of six particulars of the charge, there are four particulars which he submits in this appeal that he acted reasonably in undertaking the work as he believed it was in conformity with the DCP. The Statement of Evidence which the Appellant has been given leave to rely on in part refers to the applicable provisions of the Council's DCP in relation to each of these four particulars of the charge. Given his decision to plead guilty on the basis of these particulars it is difficult to reconcile his plea of guilty with his submissions in this regard. Those submissions would have been pertinent if the appeal was one against conviction.

41 It is not appropriate that in this appeal on sentence that the Court examine the DCP and the work undertaken to determine for itself whether the Appellant's understanding of the DCP was reasonable. I note that his solicitor submitted that he accepted that he should have made inquiries of the Council. The magistrate queried during the hearing in Waverley Local Court whether he wished to plead guilty to all matters particularised and he confirmed that he did. That circumstance cannot be overcome in an appeal on sentence to the effect that there was an honest, and reasonable, mistake as that is potentially a defence to a prosecution. It was not relied on as a defence before Waverley Local Court. I will consider the appeal on the basis that I accept the evidence of the Appellant that his understanding that the DCP applied was honestly held by him at the time he commenced the work. 42 Other matters which do not reflect well on the Appellant's submission that he had a low level of culpability are that he did not stop work when requested to do so by the Council officer and did not comply with the stop work order issued by the Council. As identified by the magistrate, the fact that he is a licensed builder and architect by profession suggests that he should have been particularly aware of his responsibilities under the EP&A Act. 43 As noted in numerous cases in this Court, general deterrence is an important consideration in sentencing for offences for carrying out building work without development consent. I do not consider the circumstances suggest that specific deterrence is necessary. I consider the range of penalties for an offence of this type in these circumstances does warrant a penalty in the region of that imposed by the magistrate. The penalty imposed is in the upper range given the relatively small scale of the building works involved and their lack of environmental impact. I accept the Appellant's submission that the Council is very likely to issue a building certificate for the work.

Mitigating circumstances 44 There are a number of circumstances relied on as mitigating by the Appellant. As identified in his affidavit at par 15, Mr Franks is 62 years old and has no previous convictions. 45 Key circumstances identified in s 21A(3) of the Crimes (Sentencing Procedure) Act are particularly (e) no previous conviction, (f) person of good character, (g) unlikely to reoffend, and (k) plea of guilty. Section 22 is also relevant in relation to the plea of guilty. The Appellant said that he told the Council that he intended to plead guilty early. The formal notice to the Court was not until two working days before the hearing however. A full discount for the plea of guilty as identified in R v Thomson; R v Houlton (2000) 49 NSWLR 383 is not justified, particularly when the likelihood of conviction is high. I also take into account that he is a person of good character based on the written reference relied on by him and his oral evidence that he has undertaken substantial volunteer work in his local area.

Fines Act 1996, s 6, means to pay 46 The Appellant argued that he is unable to pay a substantial fine because he has limited means to do so. His income for the last 11 years has been between $6,000 and $15,000. He owns his home at 6 Gap Road Watsons Bay jointly with his wife and estimates its value at $2.5 million with a substantial mortgage. He has a share in a block of land at Rose Bay which is presently being developed as four units using a line of credit facility and when complete he will own one of these units. He anticipates he will sell his home to pay his debts and move into the unit. He has savings of $5,000. While Mr Franks has substantial property assets he has limited savings and income. He would appear to have the capacity to borrow some funds to pay a fine. 47 I have before me additional evidence to that before the magistrate in relation to mitigating circumstances and a submission not made to the magistrate that the Appellant's means suggest that the penalty should be reduced. I consider I should reduce the penalty to some extent taking into account all the objective and subjective matters before me. I can vary the amount of the penalty imposed; s 39(2)(b) of the Appeal Act. I consider a penalty of $17,000 is appropriate, a reduction of $3,000. I note that s 10 of the Fines Act 1996 provides that application for time to pay a fine can be made to the Registrar of a Local Court. I note that the magistrate's order for costs of $5,000 and court costs of $67 is not varied.

(iii) increase in penalty? 48 It follows from what I have found that I do not intend to increase the penalty imposed by Waverley Local Court.

Costs of this appeal 49 I consider that as the appeal has been partly successful that the parties should pay their own costs.

Orders 50 The Court makes the following orders: 1. The appeal is upheld. 2. The fine imposed by Waverley Local Court of $20,000 on 4 December 2006 is varied by substituting a penalty of $17,000. 3. Each party is to pay its costs of the appeal.

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.

(2005) 144 LGERA 235

(2006) 145 LGERA 189

At a glance

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Cases Cited (13)

Cited By (12)