George Kenneth Kwong v Baulkham Hills Shire Council

Land and Environment Court (NSW)|2008-06-23|Before: Jagot J

CITATION : George Kenneth Kwong v Baulkham Hills Shire Council [2008] NSWLEC 199

PARTIES : George Kenneth Kwong (Appellant) Baulkham Hills Shire Council (Respondent)

KEY ISSUES: Prosecution :- Appeal against conviction and sentence by Local Court - entry of guilty plea before Local Court - application for leave following guilty plea to change plea to not guilty - necessity to identify a question of law alone - leave to appeal out of time - if question of law alone no miscarriage of justice - appeal against conviction dismissed - leave granted for appeal against sentence out of time - appeal against sentence dismissed

Crimes (Appeal and Review) Act 2001 Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Criminal Appeal Act 1912 Environmental Planning and Assessment Act 1979 Fines Act 1996

Great Lakes Council v Mood (2007) 157 LGERA 35 Hura (2001) 121 A Crim R 472 KCH (2001) 124 A Crim R 233 Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318 CASES CITED: Lin v Fairfield City Council [2007] NSWLEC 568 Piras v The Queen (2006) 167 A Crim R 260 R v Foley [1963] NSWR 1270 R v JS (2007) 175 A Crim R 108 Williams v The Queen (1986) 161 CLR 278

APPELLANT Mr E Ozen SOLICITORS A R Walmsley & Co LEGAL REPRESENTATIVES: RESPONDENT Mr M Fraser SOLICITORS Baulkham Hills Shire Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

BAULKHAM HILLS SHIRE COUNCIL Respondent

JUDGMENT Jagot J: 1 This is an application for leave to appeal from a conviction and sentence imposed on the appellant, George Kwong, by the Local Court at Hornsby on 4 December 2007. Following Mr Kwong's entry of a plea of guilty, the Local Court convicted Mr Kwong of an offence under s 125(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act), being the carrying out of development (permitting or allowing the filling of land at 124 Gallaghers Road, South Maroota) that required development consent (under the Baulkham Hills Local Environmental Plan 2005, referred to as the LEP) without having obtained development consent. The Local Court fined Mr Kwong the sum of $10,000 and ordered him to pay Court costs of $70 and professional costs of $500. By this application Mr Kwong seeks leave to appeal out of time, to change his plea from guilty to not guilty and to adduce fresh evidence.

2 The application is subject to the Crimes (Appeal and Review) Act 2001.

3 A person convicted of an environmental offence after a plea of guilty has the benefit of an as of right appeal to this Court against sentence, but not against conviction (ss 31(1) and (1A) of the Crimes (Appeal and Review) Act). With respect to appeals against conviction for an environmental offence after a plea of guilty, s 32 of the Crimes (Appeal and Review) Act provides that a person may appeal against conviction "but only on a ground that involves a question of law alone, and only by leave of the Land and Environment Court". Offences under s 125(1) of the EPA Act are "environmental offences" as defined in s 3(1) of the Crimes (Appeal and Review) Act.

4 Where leave is sought to appeal on a ground involving a question of law alone, the application for leave should identify with sufficient clarity the ground or grounds said to involve a question of law alone (R v JS (2007) 175 A Crim R 108 at [74]. See also s 34(4) requiring an application for leave to appeal to state the general grounds of the application). A question of law alone does not include a question of mixed fact and law (Williams v The Queen (1986) 161 CLR 278 at 287, 301 and 314). The restriction imposed by the word "alone" thus "confines the broader expression considerably and excludes errors of law made in the context of a decision of mixed law and fact or an exercise of discretion" (Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318 at [46]).

5 The application for leave to appeal is to be made within 28 days after sentence is imposed (s 32(4)). The Court may, by leave, extend the time for the making of the application but not beyond the period of three months from the date of the conviction, sentence or order (ss 33(1)(b) and (2)). The application must state the reasons why the application was not made within the 28 day period (s 34(4)). The Court must not grant leave for the late application under s 33 unless "satisfied that it is in the interests of justice that leave be granted". Factors relevant to the interests of justice in a particular case would usually include the reasons for the delay in making the application and the merits of the substantive appeal should leave be granted (for example, Lin v Fairfield City Council [2007] NSWLEC 568 at [14] - [15]).

6 The statutory requirements identified above must be addressed before the substantive issue of the change of plea from guilty to not guilty after conviction and sentence is resolved. Principles relevant to that substantive issue include the following: (1) Whether a plea is allowed to be withdrawn is entirely a matter for the discretion of the court ( R v Foley [1963] NSWR 1270 at 1272 cited in Piras v The Queen (2006) 167 A Crim R 260 at [15]).

(2) Such applications should be approached with circumspection given the public interest in the finality of litigation ( KCH (2001) 124 A Crim R 233 at [31] citing Liberti (1991) 55 A Crim R 120 at 122).

(3) The person seeking to change their plea should state "clearly and frankly the substance of" the proposed defence in order to justify the conclusion that the application is made bona fide ( Piras at [17]).

(4) The question is whether a miscarriage of justice will result if the plea is not permitted to be altered ( KCH at [32]).

(5) The discretion on appeal has been described as "exceptional" ( Hura (2001) 121 A Crim R 472 at [32]). Spigelman CJ identified examples of miscarriages of justice as follows in Hura : · where the appellant "did not appreciate the nature of the charge to which the plea was entered": Ferrer-Esis (1991) 55 A Crim R 231 at 233. · where the plea was not "a free and voluntary confession": Chiron (at 220D-E). · the "plea was not really attributable to a genuine consciousness of guilt": Murphy [1965] VR 187 at 191. · where there was "mistake or other circumstances affecting the integrity of the plea as an admission of guilt": Sagiv (1986) 22 A Crim R 73 at 80. · where the "plea was induced by threats or other impropriety when the applicant would not otherwise have pleaded guilty …some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt": Cincotta (Court of Criminal Appeal, NSW, No 60472 of 1995, 1 November 1995). · the "plea of guilty must either be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt": Maxwell at 511; 186-187. · if "the person who entered the plea was not in possession of all of the facts and did not entertain a genuine consciousness of guilt": Davies (1993) 19 MVR 481. See also Ganderton (unreported, Court of Criminal Appeal, NSW, No 60364 of 1998, 17 September 1998) and Favero [1999] NSWCCA 320.

7 These principles, however, operate in a context where an accused person's rights of appeal are not necessarily confined to grounds involving a question of law alone (for example, s 5(1) of the Criminal Appeal Act 1912).

8 In this case Mr Kwong filed an appeal on 28 February 2008 (within the period of three months from the conviction and sentence). The notice of appeal gave as reasons for the appeal: 1 Severity 2 TBA

9 Mr Kwong also filed a notice of motion with his notice of appeal seeking leave to appeal in respect of the sentence imposed by the Local Court on 4 December 2007. The basis was that Mr Kwong, being unfamiliar with Court processes, had lodged an appeal with the Department of Environment and Conservation. He did not receive a response from the Department until after the period of 28 days had expired.

10 Subsequently, on 22 May 2008 (outside the period of three months), Mr Kwong filed an amended notice of appeal and amended notice of motion.

11 The amended notice of appeal gave the following reasons for the appeal: 1 The Appellant asserts he is not guilty of the offence. 2 The Appellant was unrepresented at first instance. 3 The Appellant did not receive adequate or proper legal advice prior to entering a plea of guilty before Hornsby Local Court on 4 December 2007. 4 The Appellant does not agree with the Prosecution facts asserted on 4 December 2007 and as such has no consciousness of guilt.

12 The amended notice of motion sought orders as follows: 1 That leave be granted to the Appellant in respect of a sentence issued by the Hornsby Local Court on 4 December 2007 to: (a) appeal out of time, and (b) to change his plea to not guilty. 2 Leave to adduce fresh evidence.

3 Any other orders the court thinks fit. 13 The amended documents filed in May 2008 were accompanied by two affidavits. The affidavits establish that Mr Kwong appeared at the Local Court on 4 December 2007 to answer the charge. He was not represented. The Registrar presiding asked whether he entered a plea of not guilty or guilty with an explanation. Mr Kwong replied that he was not guilty with an explanation. The Registrar said the plea could be only not guilty or guilty with an explanation. The Registrar asked Mr Kwong whether he had taken any advice. Mr Kwong said he had not. The Registrar referred Mr Kwong to the Chamber Registrar. According to Mr Kwong he saw the Chamber Registrar. The Chamber Registrar told Mr Kwong that he was not a solicitor and could not give Mr Kwong legal advice. He said that if Mr Kwong wanted the matter dealt with on that day he would need to plead guilty. Mr Kwong returned to Court before a Magistrate. He was not well as he suffers from severe pain from a car accident some years ago and asked if he could sit down. He also did not have his glasses with him. The following exchange occurred: His Honour: Well Mr Kwong, it's an allegation that you carried out a development without consent. You understand that?

His Honour: That is you bought [sic] filling to your land at Maroota.

His Honour: Are you ready for me to deal with the matter? Are you ready for me to deal with the matter today?

14 The prosecutor had prepared a statement of facts. The statement asserted (amongst other things) that Mr Kwong had carried out development (filling the land) over an area in excess of 250sqm and a depth of up to 4m. When the statement of facts was handed up to the Magistrate there was an exchange between the prosecutor's representative and Mr Kwong. Mr Kwong said he disagreed with that part of the statement asserting a depth of fill of up to 4m. The prosecutor's representative asked Mr Kwong how much he agreed with. Mr Kwong said the land's contours had a rocky ridge and the depth of fill would be between 800mm and 1m. The Magistrate asked Mr Kwong what he wanted to say about the matter. Mr Kwong responded to the effect that the Council had given him the wrong information. He rang the Council and was told he could have 10m x 10m x 1m deep without DA consent. He understood that to be a reference to volume as the Council did not say you had to "stick to" 10m x 10m x 1m deep. He calculated that to be the equivalent of 100 tonnes of fill and brought in 96 tonnes. He handed up some photographs showing the filled area, described in the Council's facts as covering in excess of 250sqm. The fill remained and Mr Kwong was seeking to grass and vegetate that area. Further, Mr Kwong repeated that he disagreed with the document asserting that the fill was 4m deep as the fill was over a rocky ridge.

15 Mr Kwong had prepared a letter setting out his position that he handed up to the Magistrate. In this letter Mr Kwong referred to the advice he had received from the Council and an inspection by a Council officer who told Mr Kwong he had done the wrong thing by spreading the fill out over an area of more than 10 x 10sqm and to a depth of more than 1m. The letter said the appearance of the land was deceptive and Mr Kwong insisted that "because of the rocky ridge along the edge, that it was not more than 1m deep, and was anything from 100mm to 800mm in depth". This is consistent with Mr Kwong's position before the Magistrate about the fill depth.

16 The Magistrate convicted Mr Kwong and imposed the sentence described above. In so doing the Magistrate noted the disputed fact about the depth of the fill but said that the area of fill (250sqm) had been agreed.

17 In his affidavit Mr Kwong said he could not read the Court documents (presumably, the Council's statement of facts) as he did not have his glasses and was in severe pain. He was unhappy with his sentence and understood a Court officer advised him to appeal to the Department of Environment and Conservation. He lodged documents with the Department on 7 and 11 December 2007 and advised the Local Court on 27 December 2007. The documents lodged with the Department said he thought the fine unfair as another defendant had been fined only $5570 and Mr Kwong was on a disabled pension. The letter to the Department also explained the reason for the filling (to stop erosion) and requested a "fair go". The letter enclosed a document said to be an explanation that Mr Kwong had wanted to give to the Magistrate but did not. His second letter provided further information to the same general effect and that he entered the guilty plea as he was suffering pain and discomfort and did not have his glasses with him. The Department responded on 7 January 2008 to the effect that the Department had no role to play. Mr Kwong then sought legal advice on 24 January 2008. Mr Kwong instructed his solicitor to file a severity appeal. On 17 April 2008 Mr Kwong instructed his solicitor to file an all grounds appeal.

18 At the commencement of the hearing I indicated to Mr Kwong's counsel that the documents did not appear to identify the ground of appeal against conviction involving a question of law alone. As a result of discussions between the parties (and with the Council's consent) Mr Kwong filed and I granted leave to rely on a further amended notice of motion. The further amended notice of motion sought leave to appeal against the Local Court's decision with respect to conviction and sentence, as well as leave to adduce fresh evidence. Following further discussions about the requirement for a question of law alone Mr Kwong's counsel identified the following question: In the circumstances where following the plea of guilty Mr Kwong put facts to the Court which might be inconsistent with the plea of guilty was the Court under a duty to either enter a plea of not guilty or obtain an unequivocal plea of guilty or if Mr Kwong after clarification insisted on entering a plea of guilty to ignore his assertion that he complied with the advice given by the Council.

19 The facts relied on by Mr Kwong that he put to the Court can only be understood in the context of the applicable provisions of the LEP. The LEP provides for exempt development, development permissible with consent, and prohibited development in the 1(b) zone. Development permissible with consent includes "filling of land". "Filling of land" is defined under cl 5(1) of the LEP as follows: filling of land means filling of land by raising the natural ground level through deposition of clean (uncontaminated) excavated natural, earthy material, such as topsoil, lime, clay or sand, above the natural or pre-existing ground level, in association with agriculture or with a land use for which consent has been granted, where the landfill deposited exceeds one metre in depth or affects a total area of 100m2 or more, but does not include top dressing to an average depth of 50mm or less.

20 The method used by the LEP to control landfill creates obvious difficulties (because, if construed literally, filling of land to less than 1m in depth or over an area of less than 100sqm is not exempt development or development permissible only with consent and, hence, is prohibited development). I do not have to resolve that difficulty of construction because the common position of the parties is that the LEP should not be construed literally. Instead it should be construed to permit filling of land to less than 1m in depth or over an area of less than 100sqm without consent. For the purposes of the leave applications I adopt that common position.

21 Mr Kwong submitted that the plea was equivocal because he disputed the depth and did not admit the area of the fill. Mr Kwong gave evidence on the leave application that he had entered the plea of guilty because he was in pain and wanted the matter over with on that day. He did not understand the distinction between a plea of not guilty with an explanation (which is what he wanted to do) and not guilty or guilty with an explanation (which was what he was told he could do). He accepted that he knew the Council's position after the site inspection by the Council officer but did not accept he had done anything wrong given the advice he initially received.

22 With respect to the leave to appeal against conviction issue, Mr Kwong submitted that there was a miscarriage of justice because he had no consciousness of guilt. His plea was equivocal and the Court should not have accepted it. Mr Kwong had no opportunity to get advice. He believed the fill was roughly 100sqm. As to leave to appeal against sentence, Mr Kwong submitted that the defaults in filing were merely procedural and readily cured by s 62 of the Crimes (Appeal and Review) Act. Mr Kwong had attempted to appeal against sentence within time but had identified the wrong body with which the appeal should be lodged.

23 For its part, the Council acknowledged that the original appeal documents were filed within the period of 3 months prescribed by s 33(2) and were capable of later amendment to include an application for leave to appeal against conviction (as well as sentence). The Council's position was that it had come to Court prepared to deal with all of the leave issues (that is, against both conviction and sentence) and, if leave were granted, wished the substance of the appeals to be dealt with today. With respect to the leave to appeal against conviction issue the Council submitted that the plea was unequivocal. Mr Kwong wanted the matter over with for his own reasons and understood the plea of guilty would allow the matter to be completed on that day. He was aware of the mistake he made with respect to the Council's advice about volume not being the same as area.

24 First, the leave to appeal against conviction issue. For present purposes, and without further analysis, I am prepared to assume that the question identified above about the Court's duty involves a question of law alone. On that basis the Court's discretion to consider the question of leave is enlivened. The granting of leave to appeal against conviction, in this case, will necessarily also permit Mr Kwong to change his plea from guilty to not guilty. Accordingly, the principles identified above also apply. The decision of Biscoe J in Great Lakes Council v Mood (2007) 157 LGERA 35 provides a convenient summary of the law with respect to entry of pleas. After reviewing the authorities (at [14] to [24]) Biscoe J summarised the law as follows (at [25]): The following principles, in my view, are supported by these authorities: (a) the Court must accept a plea of guilty which is unequivocal and not made in circumstances suggesting that it is not a true admission of guilt (those circumstances include ignorance, fear, duress, mistake or the desire to gain a technical advantage). If a plea of guilty is equivocal the Court must enter a plea of not guilty. However, ordinarily, a plea of guilty is not finally accepted by a court until sentence has been passed. See Maxwell at 511, Foster, R v Jerome, R v Tatnel, R v GV. (b) a person is free to plead guilty even if he is not, and may do so for all manner of reasons (for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect family or friends; or in the hope of obtaining a more lenient sentence than if convicted after a plea of not guilty). It is not a miscarriage of justice for the court to act on an unequivocal, freely made plea of guilty even if the person is not guilty: Meissner at 141, 157. (c) if the trial judge forms the view that the evidence does not support the charge or that for any other reason the charge is not supportable, he should advise the defendant to withdraw the plea and plead not guilty; but he cannot compel the defendant to do so: Maxwell at 510. (d) the court has a discretion to permit a change of plea at anytime prior to sentence if it would be a miscarriage of justice not to do so: R v Marchando (2000) 110 A Crim R 337 at [4].

25 The difficulty with Mr Kwong's position on the leave to appeal against conviction issue is that it is reasonably clear from the evidence that Mr Kwong deliberately chose to enter a plea of guilty to the charge after being informed that a plea of not guilty could not be dealt with on the day. This occurred in a context where Mr Kwong had been present during a site inspection where the Council officer had informed Mr Kwong that the fill had been spread out and affected an area of greater than 10m x 10m. In his letter of explanation Mr Kwong disputed the depth of the fill but not the area. This is consistent with the fact that, during the hearing before the Local Court, Mr Kwong appreciated the Council's facts document sufficiently to understand that it alleged a fill depth of up to 4m, which he also disputed. The same document referred to the fill area but Mr Kwong did not dispute that asserted fact. He did not do so, moreover, in any later correspondence even though, in one of those later letters, he again disputed the fill depth. The Magistrate was fully aware of that dispute as his reasons for sentence disclose. It is also apparent that, at least at the time the matter was before the Local Court, Mr Kwong did have a consciousness of guilt. His letter of explanation refers to Mr Kwong's mistaken understanding of the Council's advice. The Magistrate asked Mr Kwong if he understood where he had gone wrong and Mr Kwong said he did as the Council had given him insufficient information.

26 With respect to a plea of guilty on an environmental offence s 32 of the Crimes (Appeal and Review) Act imposes a substantial constraint on the capacity of this Court to grant leave to appeal against conviction where a plea of guilty has been entered at first instance. The ground of appeal must involve a question of law alone. If such a question is identified then there remains the question of leave. There is a significant public interest in the finality of litigation. The facts presented on behalf of Mr Kwong do not persuade me that there has been any miscarriage of justice. The Magistrate was, in all of the circumstances, entitled to act on and accept the plea of guilty as the basis for sentence. He was entitled to accept that the only fact in dispute was the depth of the fill (which, alone, did not undermine the guilty plea). The other circumstances relied on by Mr Kwong (relating to his state of health, unrepresented status, lack of legal advice, and alleged inability to read the Council's information document) have to be considered in light of all of the relevant circumstances. Mr Kwong was in attendance during the site inspection. He understood the matter sufficiently to write his explanation. The explanation does not dispute the fact of unlawful filling other than in respect of depth. Mr Kwong must have had the Court attendance notice. That notice discloses the details of the offence charged. Mr Kwong entered an unequivocal plea of guilty to the charge. His belief he had done nothing wrong, at least at the time he entered the guilty plea, has to be understood by reference to his acceptance that he misunderstood the Council's advice (but, nevertheless, clearly blamed the Council for his predicament). The sentence imposed was far more than he expected, as his subsequent correspondence discloses. None of the circumstances warrant the grant of leave to appeal against conviction following the entry of the guilty plea below.

27 The leave to appeal against sentence issue is in a different category. Mr Kwong intended to appeal against sentence. He believed he had lodged such an appeal within time. He lodged the appeal, however, with the wrong body. Once he obtained legal advice the defect was promptly rectified. The Council submitted that the sentence was within the appropriate range with the consequence that there should be no leave to appeal against sentence. The Council's submission about the substance of the appeal is relevant but not of sufficient weight to dissuade me that, on the facts of this case, leave to appeal against the severity of sentence should be granted. The defects in commencing that appeal were procedural and technical. The delay was of a relatively short order. It is in the interests of justice that Mr Kwong be granted leave to appeal out of time with respect to sentence, but not conviction.

28 For these reasons I make the following orders: (1) Dismiss the appellant's application for leave to appeal against conviction.

(2) Grant the appellant's application for leave to appeal against sentence. [Counsel addresses on the appeal against sentence]

29 In my reasons on the various applications for leave, I dismissed the appellant's application for leave to appeal against conviction but granted the appellant's application for leave to appeal against sentence. As recorded in those reasons the Local Court fined Mr Kwong the sum of $10,000 and ordered him to pay Court costs of $70 and professional costs of $500 in respect of the offence to which he pleaded guilty, namely permitting or allowing the filling of land at 124 Gallagher's Road, South Maroota, being the carrying out of development that required development consent without having obtained that development consent.

30 Following submissions from the parties it is clear that the appeal against sentence in respect of which I granted leave under s 33 of the Crimes Appeal and Review Act (given the lodgement of the appeal outside the period of 28 days provided by s 31(2A) but within the period of three months provided by s 33(2)) is to be determined by way of rehearing in accordance with s 37(1). That is, in case there be any doubt about it, my approach to the provisions of the Crimes (Appeal and Review) Act is that s 32(1) (requiring leave to be granted in respect of an appeal on a ground that involves a question of law alone) operates only in respect of an appeal against conviction; it does not operate in respect of an appeal against sentence.

31 Hence a person who has pleaded guilty before the Local Court may appeal against sentence as of right within 28 days of the sentence being imposed in accordance with s 31(1). If, however, that 28 day period has expired, the person may seek leave to appeal against sentence out of time in accordance with s 33(1) but may only do so within the period of three months prescribed by s 33(2). In other words a person in the position of Mr Kwong, when appealing against sentence, even though he appealed against sentence after the period of 28 days, is not confined to raising a question of law alone. Once leave has been granted, as in this case, the appeal against sentence is regulated by s 37.

32 The submissions made on behalf of Mr Kwong are that the sentence against Mr Kwong for the offence under s 125(1) of the EPA Act should take into account a number of factors as follows: (1) Mr Kwong contacted the Council before carrying out the filling operation. He did so in good faith to seek advice from the Council as to the activities he could carry out without development consent.

(2) Mr Kwong, in the event, erroneously interpreted the advice that the Council gave. He construed the advice as permitting him to bring on to the land a particular volume of material rather than permitting him, without consent, to bring on to the land material provided that it was not greater than 1m in depth and did not affect an area of greater than 100sqm. Accordingly, he brought on 96 tonnes of fill which he calculated would accord with the Council's advice that he could fill an area of 10 by 10sqm to a 1m depth without consent.

(3) The purpose of the fill being brought on to the land was not to obtain a profit in any sense, such as increasing the sale price of the land, but rather was to prevent erosion.

(4) The area affected by the fill was uneven and therefore it is difficult to make any finding about the disputed issue of the depth of the fill.

(5) Having regard to these factors it should be concluded that Mr Kwong did not flout the system of planning regulation. He made an error in his interpretation of the advice he had been given.

(6) Although all planning offences are to be taken seriously and it was accepted that cases such as land filling were difficult to detect, normally carrying a strong element of general deterrence, this was not an appropriate vehicle for a substantial penalty to achieve general deterrence. The offence in all of the circumstances fell towards the bottom end of the range. In particular, there was no significant environmental damage and Mr Kwong had seeded the area to prevent further erosion.

(7) Mr Kwong was 69 years of age and a disabled pensioner. He has an income of $539 per fortnight, being his disability pension which leaves him little left over for living expenses.

(8) In terms of assets, Mr Kwong did not dispute the Council's evidence from certificates of title that he was an owner as joint tenant with his wife of 50% of the Maroota property and again owner as joint tenant with his wife of a property at Carlingford, although it was said in submissions on his behalf that as between themselves Mr Kwong in effect controlled the Maroota property whereas his wife controlled the Carlingford property.

(9) Mr Kwong had cooperated with the Council investigation at all times.

(10) The cases as relied upon by the prosecutor as analogous to the present case involved significantly different circumstances where general deterrence was clearly called for in distinction from the present case.

(11) The prosecutor's costs of the whole of the hearing today were $7500 which should also be taken into account. 33 For its part the Council relied on its written submissions and in particular pointed to the photographs annexed to the Council's facts document handed up to the Local Court showing what appears to be a fairly significant amount of fill spilling down into a vegetated area. The Council said that this showed the nature of the environmental harm which had prompted the prosecution. Further, that this environmental harm was not rectified by the grassing activities shown in the photographs relied upon by Mr Kwong. As to the ownership of the property, the Council referred to the certificates of title which I have already mentioned. According to the Council, in circumstances where the maximum penalty was $1.1 million, albeit accepting the jurisdictional limit within the Local Court of $110,000, the penalty of $10,000 imposed was appropriate having regard to the objective and subjective circumstances of the case.

34 The purposes of sentencing are identified in s 3A of the Crimes (Sentencing Procedure) Act 1999 and include adequate punishment, deterrence, protection, rehabilitation, making the offender accountable for their actions, denouncing their conduct and recognising the harm done, in this case relevantly to the community. Relevant considerations are contained in ss 21A(2) and (3). There were no aggravating factors identified in any of the evidence or the Council's submissions but there were mitigating factors. In particular, of obvious relevance is that Mr Kwong has no prior convictions, is a person of good character, should be found in my view to be unlikely to re-offend and did enter the plea of guilty at the original hearing before the Local Court (although of course before me today Mr Kwong sought leave to withdraw that plea to enter a plea of not guilty being the application I rejected in my reasons delivered earlier today).

35 The photographs tendered by the Council show that the filling activity carried out by Mr Kwong was not trivial. From the photographs there appears to be a relatively substantial amount of fill placed on the property. In saying this I am aware that the common position of the parties at all times before me is that fill over an area of 100sqm to a depth of not more than 1m is permissible without development consent. The photographs appear to show a fairly significant area of land which has been subject to landfill operations to some not inconsiderable depth, although I accept that I am not in a position from the photographs alone to ascertain what that depth might be other than that it is evident that a number of trees have been affected by the fill.

36 The activity of land filling, as counsel for Mr Kwong correctly identified, is often difficult to detect. It is a type of activity where elements of general deterrence are of substantial importance. It is also important that people in the position that Mr Kwong was in ensure that they satisfy themselves either that they have correctly understood a council's advice or independently check the relevant planning instrument before they carry out activities which have such an obvious potential impact on land.

37 Given the maximum penalty imposed for the carrying out of development without development consent of $1.1 million and each of the other facts relied upon by Mr Kwong in support of the appeal against sentence, I am unable to diverge from the sentence that the Magistrate imposed in the sum of $10,000. In that regard I have given consideration to Mr Kwong's means to pay a fine and that he is on a disability pension of $539 per fortnight with little left over for living expenses. That is a relevant matter under s 6 of the Fines Act 1996. However, it is also the case that Mr Kwong is a property owner; whether he owns only the Maroota property or has an interest in both the Maroota and Carlingford properties he clearly has those property assets or asset. Accordingly, I do not think that factor can take significant weight. I have given significant weight, however, to the fact that he has no prior convictions, did contact the Council and seek advice but made an error in his interpretation of that advice, and otherwise fully cooperated with the Council.

38 Even taking into account those matters, as well as a full discount for the plea of guilty as entered in the Local Court of 25%, it seems to me that the penalty the Local Court imposed was at the very low end of the range in any event and, therefore, was an appropriate penalty in all of the circumstances. For these reasons I dismiss the appeal against sentence.

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