Hawkesbury City Council v Kara-Ali

of the Supreme Court of NSW v Jando (2001) 53 NSWLR 527; 125 A Crim R 473; [2001] NSWSC 969 R v Alou (No 4) [2018] NSWSC 221 R v Holder; R v Johnston [1983] 3 NSWLR 245 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Oliver (1980) 7 A Crim R 174 R v Rahme (1989) 43 A Crim R 81 R v Thomson, R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v Visconti [1982] 2 NSWLR 104 R v Wickham [2004] NSWCCA 193 Randwick City Council v Kara-Ali [2015] NSWLEC 5 Secretary, Department of Planning and Environment v SingTel Optus Pty Ltd [2019] NSWLEC 44 Witham v Holloway (1995) 183 CLR 525 Wood v Staunton (No 5) (1996) 86 A Crim R 183 Category: Principal judgment Parties: Hawkesbury City Council (Prosecutor) Mustapha Kara-Ali (First Respondent/Defendant) Diaa Kara-Ali (Second Respondent/Defendant) Southern Chariot Stud Pty Ltd (Third Respondent/Defendant) Representation: Counsel: Ms J Walker, barrister (Prosecutor) Dr S Berveling, barrister (Respondents/Defendants - from 13 December 2018)

Solicitors: Pikes Verekers Lawyers (Prosecutor) AR Walmsley & Co Solicitors (Respondents/Defendants) File Number(s): 2018/197129

Introduction

1. Each of the three Respondents to these Class 4 proceedings have pleaded guilty to, and are now to be sentenced on, four separate sets of contempt charges (12 charges in all).
2. Council filed, on 21 November 2018, comprehensive Court Books ("CB") in respect of each offender, each book covering, in turn, all four charges against each of them.
3. The first set of charges was filed on 4 September 2018, the second on 13 September 2018, the third on 27 September 2018, and the fourth on 11 October 2018. I will return to the details.
4. All twelve charges arise from the Defendants' failure to obey the orders I made on 27 August 2018, in the substantive Class 4 proceedings, following a hearing they had failed to attend on 20 August 2018: Hawkesbury City Council v Kara-Ali (No 2) ("Judgment No 2") [2018] NSWLEC 129.
5. Those orders were "taken out" by Council on 28 August 2018, and served on the Respondents on 30 August 2018.
6. The two human Respondents/Defendants are brothers, Mustapha and Diaa Kara-Ali (respectively now the 1st and 2nd Defendants).
7. The subject land, at 1855 Putty Road, Colo, is owned by the 3rd Defendant company, Southern Chariot Stud Pty Ltd, of which the 2nd Defendant is the sole director and shareholder.
8. The company is said to hold the land (as registered proprietor) on trust for a not-for-profit charity, known as "Diwan Al Dawla".
9. Dr Mustapha Kara-Ali has often spoken, and written, on behalf of all three Defendants.
10. Human contemnors may be punished "by committal to a correctional centre, or fine, or both", and corporate contemnors may be punished by sequestration of their property, or fine, or both: Par 55 r.13 of the (NSW) Supreme Court Rules 1970.
11. At the sentencing hearing on 28 February 2019, the Prosecutor was represented by Ms Josie Walker of counsel, and the Defendants by Dr Steven Berveling of counsel.

The Evidence

1. The parties agreed on a Statement of Agreed Facts ("SAF" - Exhibit P1), dated 27 February 2019, and on an Evidence Book ("EB" - Exhibit P2), containing 16 tabbed affidavits and their annexures.
2. The Prosecutor read and relied upon thirteen of those EB affidavits (tabs 1, 2, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, and 16), the deponents of which were Council's solicitor Mark Cottom (tabs 9, 13, and 15), Council officers Philip Khalifeh (tabs 6, 7, and 10), and Peter O'Neill (tabs 8, 11, 12, 14, and 16), and process server James Kelly (tabs 1 and 2). Council also read and relied upon an additional affidavit from O'Neill, dated 25 February 2019, and one from process server Frank Hoare, dated 11 September 2018.
3. On the Defendants' part, additional affidavits, including four from their solicitor Caroline Keith (sworn 18 December 2018, 29 January 2019, 26 February 2019, and 27 February 2019), and one from their consultant Town Planner, Robert Montgomery, dated 11 December 2018, and some documentary exhibits (new Exhibits D1-D4), were put before the Court without objection.
4. During the sentencing hearing it became necessary to refer also to some exhibits retained in the Court file from earlier hearings on 13 and 19 December 2018. Unfortunately, those exhibits had also been numbered "D1" to "D3".

The Regulation of Development in NSW

1. The planning laws of this State require that many works on privately owned land be assessed by "consent authorities", most frequently Councils, with a view to their approval or refusal.
2. In discharging such functions, Councils are dealing with the land and its use, and not with any personal attributes of the owner or the user, and they do not favour one religion or set of beliefs over any other.
3. Stephen J put this in perspective when he said, in Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 290; 25 LGERA 369, at 293-4, 87-8: ... There are two features of consents granted under schemes such as those here in question which appear to me to make it inappropriate to speak of them as conferring either a "right" in the narrow or wide sense or a "privilege". First, although a consent will no doubt result from an application by an individual it is essentially impersonal in the sense that it does not concern itself with and is not limited to the applicant but is a consent to the world at large in relation to the land which is its subject. Once granted it makes lawful, in a town planning context, what would otherwise be unlawful but does so by reference to the acts done and not to the identity of the actor: ... Secondly, I doubt whether it is proper to regard as a "right" or "privilege" acquired or accrued under the county scheme what is no more than the relaxation of a prohibition imposed by that very scheme. The scheme took away the liberty at general law of occupiers of land to use their land as they saw fit but in relation to the appellant's land enabled the renewed exercise of that liberty in a very qualified way if a consent from the responsible authority was first sought and obtained.
4. The planning law and its processes are not "about" individuals, as such, but about proper land use, environmental values, and the best interests of the community at large - in other words, the public interest generally.
5. However, disobedience of the requirements of consent authorities, and defiance of the Court's authority, and its orders, make the contempt proceedings which flow from the adoption of such positions, very much "about" the individuals or entities involved.

Muslims and the NSW Legal System

1. Because of some positions adopted by the Defendants in the course of this matter, particularly in the media, it is necessary and appropriate that I make some observations about the relationship between this State's legal system and its Muslim community.
2. At the beginning of each Law Term, religious services are held in Christian, Orthodox, Jewish and Muslim places of worship, to seek divine inspiration for the work of the courts, despite the well accepted separation of Church and State.
3. In December 2017, the Australian National Imams Council ("ANIC"), with the assistance of the NSW Judicial Commission, prepared a document entitled "Explanatory Note on the Judicial Process and Participation of Muslims".
4. In R v Alou (No 4) [2018] NSWSC 221, at [238], Johnson J described the Note as "a powerful statement by the leadership of Islam in Australia concerning the approach to judicial proceedings".
5. The Note clearly envisages that Muslims in Australia will often be expected to participate in Court processes. It even stresses that there are many similarities between the Western tradition and the Muslim concept of justice.
6. Mustapha Kara-Ali disowns the Note. The following exchange occurred between him and the Court when he first appeared before me (by video link - T12.11.18 p6, LL38-46): RESPONDENT M KARA-ALI: That document belongs in the trash bin. I do not subscribe to that council and they are not worthy of being called, "Imams," and that council does not represent me or represent my religion. They are hypocrites. They are hypocrites that have succumbed to another religion and they do not represent the religion that the youth want. HIS HONOUR: All right. If that's your position that's fine but the Court subscribes to the document and the Court subscribes to the principles in that document and conducts its proceedings in accordance with it. ...
7. The Holy Quran considers justice a supreme virtue, and I assure the Defendants that this Court pursues that virtue in every case it deals with, just as the Holy Quran requires of its adherents.
8. The Note, however, goes further, saying in section 2.2, under the heading "The authority of the Judge and compliance with Australian laws" (emphasis mine): Muslims who live in Australia are considered to be living in that country under a covenant. They must, therefore, comply with the laws of that country of residence as this is considered in Islam as loyalty to the covenant which they have entered into. This is a position mandated by the Holy Quran: for instance, see Chapter 5 at [1]; Chapter 17 at [34]; and Chapter 16 at [91]. ... Scholars have stated that those who enter any country have to adhere to the respective laws and regulations even if they have entered those countries illegally, and they have no justification for breaking those laws, since they were entrusted to abide by those laws upon entry.

Background to the Present Charges

1. During the dispute which arose between the now Defendants and Council over "development" carried out on the land at 1855 Putty Road, Colo, the Defendants refused to engage with Council in any constructive way.
2. Council chose to bring civil enforcement proceedings, in Class 4 of this Court's jurisdiction, rather than prosecute the owner and/or the Kara-Ali brothers in Class 5, in respect of works done on the land without the required consents, and the substantive Class 4 proceedings were commenced on 26 June 2018, against all three (then) Respondents.
3. Once the Class 4 proceedings were on foot, the Respondents to them engaged with the Court only by occasionally sending in written material not compliant with any legislation, rules, or practice notes. They missed a series of congenial opportunities offered to them to put their situation in order. The 1st Respondent was, however, prominent in media coverage of their dispute with Council, and their denial of the Court's authority.
4. Meanwhile the Council (and eventually the Court) remained concerned about works and activities on the subject site.
5. Robson J granted Council interlocutory relief on 6 July 2018: Hawkesbury City Council v Kara-Ali [2018] NSWLEC 105. None of the Respondents appeared on that occasion.
6. His Honour's orders were returned before me, as Duty Judge, on 16 July 2018. Again the Respondents did not appear. I continued the orders, and set the matter down for its substantive hearing on 20-21 August 2018.
7. When the substantive hearing commenced on 20 August 2018, the Respondents again failed to appear, and I granted Council leave: 1. to amend its Summons to take account of follow-up affidavits and additional works discovered during an inspection on 23 July 2018; and 2. to proceed with the substantive hearing on an ex parte basis, the Court being satisfied that the Respondents were on notice of the Applicant's case, including its amended summons, its Points of Claim ("POC"), all its affidavits dealing with the substantive issues, and the exhibits which were to be tendered at that hearing.
8. I note here that I am satisfied that Council, in fairness to the Respondents, put before the Court, at that 20 August 2018 hearing, all material then available to it, which one would expect them to have adduced had they appeared (T28.2.19 p31, LL45-46).

The Relevant Orders and My Reasoning

1. I made the relevant final orders in the substantive proceedings, and published my reasons for them, on 27 August 2018: Judgment No 2, already cited at [4] and [37] above.
2. I was satisfied that the offending works had continued after service of Robson J's orders upon the Respondents (see Judgment No 2 [44]), and I continued (at [45] to [58] - emphasis added to [46], [47] and [53] - see [37] above): 45 Council has been deprived of all proper opportunities to discharge its planning and development control functions in respect of this property, and the environmental damage caused by the unauthorized works is clear in all the tendered photographs. 46 Apart from not making appropriate applications to Council, and not co-operating with Council in its supervisory and enforcement functions, the Respondents have wrongly asserted in their correspondence to Council that their operations on the land are somehow exempt from the planning laws of the State, and outside the jurisdiction of this Court. 47 While it is true that registration with the [Australian Charities and Not-for-profits Commission ("ACNC")] does exempt some "Basic Religious Charities" from some of ACNC's own governance requirements (EB, tab 1, p44), there is no legislative or other authority for the wider exemptions the Respondents claim: ... Conclusion 48 The Court is satisfied that the POC have been substantiated, and notes, in respect of the three Respondents, that: (1) the Third Respondent company has accepted responsibility for carrying out the subject development, by its servants and/or agents, including the other two Respondents with whom it is closely associated; (2) the Second Respondent, Diaa Kara-Ali has carried out the subject development, by himself, his servants and/or agents, including the First Respondent ([Council Officer] Khalifeh, EB tab 1, at [7]-[20]; [Council Officer] Collins, EB tab 10, at [11]); and (3) the First Respondent, Mustapha Kara-Ali has admitted responsibility for carrying out and/or directing the subject development, by himself, his servants and/or agents, including the Second Respondent (EB, tab 4, fol 105, Robson J at [20], and Collins EB, tab 10, at [11]). 49 The Court is also satisfied, mainly from the written and oral evidence of Collins, that the Respondents intend to continue to erect structures on the land, and that, unless restrained, they will use the subject land for the carrying out of any and all "religious activities of devotion, self-discipline, ritual baptism, inter-community prayers, contemplation and religious study", and/or for the purpose of public worship, without the required development consent. 50 The Respondents cannot be allowed to continue to carry out significant, but unauthorised, development, in continuing disregard for (a) the important statutory responsibilities and functions of the Council, and (b) the significant actual adverse environmental impacts of their works. 51 Nor can they use the land for the purpose of a place of public worship, in the absence of a consent. 52 The Court acknowledges the sincerity of the followers of Diwan Al Dawla (see its rules at EB, tab 4, fols 114-120), and does not seek to interfere with their religious commitments and practices, as such. They may be assured that the Court adopted a "fine tooth comb" approach to all Council's claims and materials, including those emanating from the Respondents. 53 However, they are not, as they contend, exempt, in any way, from the planning laws of NSW, and they are not beyond the jurisdiction of the Courts. 54 It is unfortunate that the Respondents' dealings with Council have reached the level of unpleasantness disclosed in the evidence before me (including the confrontation depicted in Exhibit C2). Negotiations in good faith, and with the benefit of skilled legal advice on both sides, may have led to a less draconian outcome for the Respondents' project. 55 The Council has been careful to avoid seeking orders in respect of "exempt" or "acceptable" works, such as water tanks (Tp8, L10), and to safeguard persons and animals on site. 56 I can see no grounds at all to decline, in an exercise of the Court's discretion, to make any of the declarations and orders Council has sought. 57 Any delay in bringing these proceedings was a wasted opportunity afforded to the Respondents to regularize their dealings with the land and the Council, and in no way disentitles the Council to relief. 58 All declarations and orders sought by Council ought, and will, be made, including as to costs, in terms of the minutes handed up by Council on 20 August 2018.

The First Defendant adopted a strong position prior to his arrest

1. The 1st Defendant, Dr Mustapha Kara-Ali, is referred to as the Imam (i.e. spiritual leader) of the Muslim "group" known as Diwan Al Dawla ([8] above), and he has been described and regarded as its "primary contact". The "governing rules" of Diwan Al Dawla, dated 1 April 2017, are before the Court (new Exhibit D4).
2. The 2nd Defendant, Diaa Kara-Ali, and the 3rd Defendant, the company Southern Chariot Stud Pty Ltd, of which Diaa is sole director, did not make their own, independent representations to Council or the Court prior to entering their guilty pleas to the present contempt charges.
3. On 13 September 2018, in a telephone discussion between the 1st Defendant and Council's solicitor, Mark Cottom, the following exchanges occurred (EB fols 153-154) Mustapha: I've been talking to members of the charity. I'm in the process of preparing a letter to you or Council regarding outstanding issues. I wish to resolve the dispute in a disciplined manner. We are happy to mediate, to resolve, to come to an agreement. We are happy to. ... Mustapha: We can resolve non-religious issues in the Australian Dispute Centre. Mark: I can inform the Court of alternate dispute resolution. We'll consider it but I can't say whether we'd agree to alternate dispute resolution. Your interests would be much better represented in Court. Mustapha: We have a religious issue with the Court. The problem is with religious symbolism in the Court. The crusades, the symbols enforce a narrative of religious issues. What we will deal with is a secular body. This is basic religious freedom. Mark: Council's opinion is that you are subject to the law. I disagree but I've advised you it is in your interests to attend. If you don't attend, the Court will make directions in your absence. Mustapha: From a religious perspective one day we hope there will be a secular Court.
4. As foreshadowed in that conversation, Mustapha Kara-Ali wrote at length to Council, on 25 September 2018 (EB fols 161-169).
5. In that submission, which he copied to the Court, he described Diwan Al Dawla in these terms (EB fol 161): Diwan Al Dawla is a religious guild that advances a way of living based upon a unitarian epistemology and narrative. Members of Diwan Al Dawla, known as aṣḥāb al dawla, live as a spiritual guild separated from secular worldviews to pursue a religious mode of worship and lifestyle under an oath of self-sacrifice and dedication to the purposes of Diwan Al Dawla. The Southern Chariot Religious Site at Colo is a religious site that is owned by the members of Diwan Al Dawla for the carrying out of religious activities of devotion, self-discipline, ritual baptism, inter-community prayers, contemplation and religious study. The site with its Colo River access serves as a reclusive place of worship. The name of the guild is based on the Arabic Semitic word al dawla, which promotes the binding of collaborative effort upon autonomous standards of religious self-governance that are independent of entities that represent secular socioeconomic structures and modes of living. The members are locally known as Muhammadan Christians.

The Contempt Proceedings

1. The twelve contempt charges alleging breach by each Defendant of the Court's Orders 6, 7, 8 and 9, as detailed above ([50]), were laid, as already noted ([3]), between 4 September 2018 and 11 October 2018.
2. Each of my orders had specified a particular time limit for compliance - Order 6 applied from the date of the Order, Order 8 required compliance within 14 days, Order 7 within 28 days, and Order 9 within 42 days, from that date.
3. The Defendants complain that the Council acted too peremptorily in bringing the contempt charges so quickly after the expiry of the respective dates for compliance, but they concede the jurisdiction of the Court in each case (T28.2.19 p20, LL40-44). I do not accept the Defendants' complaint of peremptoriness.
4. However, charges of contempt, whether civil, as here, or criminal, "must realistically be seen as criminal in nature", requiring the Prosecutor to prove its case beyond reasonable doubt: Witham v Holloway (1995) 183 CLR 525, at 530-534.
5. Attendance at Court in matters of this kind best serves the interests of all concerned: See, generally, Kirby P in Attorney General for NSW v Hayden (1994) 34 NSWLR 638, at 639-40; but also Pain J in Auburn Council v Czopak [No 3] [2005] NSWLEC 417, at [7]-[8], and Moore J in Holroyd City Council v Khoury [2016] NSWLEC 29.
6. Attendance provides an opportunity for dialogue between the parties about the subject matter of the orders, and options for a way forward.
7. It also provides an opportunity for the Court to be reassured that Defendants realise the serious risks to which they are exposed - imprisonment, sequestration of property, fines, costs orders, and forced removal of offending works.
8. The three Defendants charged with contempt in these proceedings, however, refused to appear, but the Court agreed with the Council that we should not deal with the contempt charges without their presence (or at least representation) in Court, to face them.
9. Throughout the proceedings, both in their civil enforcement phase, and now the contempt phase, the Defendants were repeatedly told by Council, or its representatives, that it was in their interests to attend Court, and I then formally directed them to do so (see EB fols 227-253, and SAF2).
10. They were clearly warned, in terms, by Cottom, that the Court would be asked to have the Kara-Ali brothers arrested (see, e.g., EB fols 176-177, and 248).

Punishment?

1. At the early stages of the contempt proceedings, the prosecuting Council was seeking the imprisonment of the Kara-Ali brothers, and, because of those submissions, the Court referred them for pre-sentence assessment (new Exhibits D2 and D3).
2. Imprisonment must not be imposed unless the Court has considered all possible alternatives, and concluded that no penalty other than imprisonment is appropriate: Plath v Rawson (2009) 170 LGERA 253, at [177].
3. Despite concern on the Prosecutor's part that non-custodial punishment might not "send a strong enough message in this case", and, in the face of strong argument against imprisonment by Dr Berveling (subs pars 16 to 18), including on the grounds that it might impede further purging of the contempts, sentences of imprisonment were not all that strongly pressed by the Prosecutor at the sentencing hearing (T28.02.19 pp17, 21, and 25).
4. Nor did Council press, at all, for a sequestration order in respect of the corporate Defendant (T28.02.19 p18, LL29-31).
5. I accept that the human Defendants see the reporting conditions imposed on their bail from 12 November 2018 until today, a period of five months, as a punishment (see T12.11.18 p9, L33 to p11, L18).
6. I am satisfied that the most appropriate punishment to impose on all three defendants in each aspect of this case, as it now stands, following the change in attitude, and the commitment shown, since 12 November 2018, is fines.

The Orders Breached and the Competing Submissions

1. I will now set out again Orders 6 to 9, made on 27 August 2018, in that order, and, in each case, record also the competing submissions made respectively by opposing counsel about the charged contempts of them:

Order (6) The Court orders that the Respondents and each of them are restrained from constructing structures upon the subject land or transporting structures to the subject land without development consent theretofor.

1. The Prosecutor submits (pars 2 and 3 -- footnotes omitted): 2. The first charge is that from 30 August 2018 the respondents continued to construct a structure on the Land contrary to Order 6. The nature of the works carried on after the service of the Court's orders can be seen in the Affidavit of Philip Khalifeh dated 3 September 2018 at [27]-[30]. Additional sheeting was attached to the roof on both sides of the shed, that there were ladders leaning against the shed, and a roller door was placed near the shed ready to be installed. At a further site visit on 11 September 2018, Mr Khalifeh and Mr O'Neill observed that the roof of the shed had been completely sheeted and the roller door had been installed. On 27 September 2018, Mr O'Neill observed that a further metal sheet clad extension had been added to the barn-style shed, and that these works were "continuing". Evidence of continuation can be seen in the presence of work vehicles, ladders and metal sheeting around the sheds. 3. This contempt was not technical or inadvertent, but intentional. The respondents quite deliberately carried on works on the shed for at least 4 weeks after service of the Orders. To date they have not offered any excuse for doing so. The contempt was purged when the shed was demolished on or before 18 December 2018. (See also oral submissions T28.02.19 p4, L45 to p5, L25.)
2. I cannot identify any specific response by the Defendants, either in writing or orally, to those submissions.

Order (7) The Court orders that the Respondents must, within 28 days of the date of these orders, demolish and remove from the subject land: (a) the gate entranceway and fencing along the northern side of Putty Road which is upon or adjacent to the subject land; (b) the chain wire fencing along the southern side of Putty Road which is upon or adjacent to the subject land; (c) the four flagpoles; (d) the three concrete slabs, any buildings or structures erected or partially erected thereon and any associated services; and (e) the river entry ramp.

1. The Prosecutor submits (pars 5 and 6): 5. The third charge relates to a failure to remove the structures referred to in Order 7, namely the gate entranceway and fencing along the northern side of Putty Road, the chain wire fencing along the southern side of putty road, four flagpoles, three concrete slabs, and the barn-style shed and other shed which had been partially erected upon time of the orders, by 25 September 2018. The four flagpoles were removed by 19 November 2018. The other structures were still in situ as 20 November 2018, that is 8 weeks after the date for compliance. The structures were finally dismantled on or before 18 December 2018. 6. This contempt was also intentional. The structures the subject of this charge, although they were fixed, were still relatively minor in nature. The respondents have not provided any explanation for why they were not removed within 4 weeks of the Court's orders, as required under Order 7. (See also oral submissions T28.02.19 p5, L50 to p6, L16.)
2. The Defendants (subs page 16) have now completely demolished and removed all these items, mostly in December 2018, with some of such works completed during January 2019.
3. Dr Berveling submits only (par 15(a)(iii)) that the delay "in the demolition and removal of the various items did not cause additional environmental harm by them remaining on site a few months longer".

Order (8) The Court orders that the Respondents must, within 14 days of the date of these orders, remove the two moveable dwellings, septic tank and associated services that have been installed on the subject land in association with the above building works.

1. The Prosecutor submits (par 4): 4. The second charge relates to a failure to remove two moveable dwellings from the Land, after the date for compliance with Order 8, which was 11 September 2018. The moveable dwellings were still in place on the site as at 20 November 2018, but they were removed on 7 December 2018. This contempt, although it consisted of inaction rather than action, should also be characterised as wilful. Moveable dwellings are, of their nature, easier to relocate than structures which are fixed to the ground. The respondents have not provided any explanation for why they were not moved for at least 10 weeks after the date for compliance with the Order 8. (See also oral submissions T28.02.19 p5, LL27-48.)
2. The Defendants (subs pp16-17) completed these tasks in December 2018 and January 2019.
3. Dr Berveling again submits only (par 15(a)(iii)) that the delay "in the demolition and removal of the various items did not cause additional environmental harm by them remaining on site a few months longer".

Order (9) The Court orders that the Respondents must, within 42 days of the date of these orders, provide to the Applicant: (a) engineering, landscape and revegetation plans prepared by suitably qualified experts for the restoration and rehabilitation of the subject land to a standard acceptable to the Applicant; (b) applications under the Roads Act for the driveway crossings and related works and structures partially created on both the southern and northern sides of Putty Road as referred to in the Affidavit of Philip Khalifeh sworn 26 June 2018; (c) approvals from Roads and Maritime Services for the position of the driveway crossings as referred to in the Affidavit of Philip Khalifeh sworn 26 June 2018; and (d) a survey report showing the location and positioning of the gate entranceway and fencing along the northern and southern sides of Putty Road adjacent to the subject land showing the position of that gate and fencing in relation to the boundaries of the land and to the zone boundaries.

1. The Prosecutor submits (pars 7 to 12): 7. This contempt relates to a failure to prepare various reports and plans and to obtain approvals directed at remedying breaches of the planning law found by the Court in its judgment of 27 August 2018 by 9 October 2018. None of these documents had been submitted by the required date in Order 9, which was 6 weeks after service of the Orders. While the [applicant] accepts that the documentation required by Order 9 was extensive and to some extent depended upon the cooperation of third parties, nevertheless the respondent[s] committed a wilful contempt by failing to take any steps to obtain the required documentation within the specified timeframe. If the respondent[s] had been diligent in pursuing endeavouring to comply with these orders from 30 August 2018 but had been frustrated by unavailable experts or unresponsive government departments, then this would be a mitigating factor. However, there is no evidence of the respondents taking any steps to comply with Order 9 before they were arrested and brought before the Court on 12 November 2018. The status of compliance with each of the sub-paragraphs of Order 9 is discussed below. (a) engineering, landscape and revegetation plans prepared by suitably qualified experts for the restoration and rehabilitation of the subject land to a standard acceptable to the Applicant; 8. A Vegetation Report was first provided by the respondents to the Council and the Court on 10 December 2018. However this did not purport to be a landscape and revegetation plan, only to provide the "baseline data" for preparing such a plan. Discussions have been ongoing between the respondents and the Council since that date. At the date of writing the Council and the respondents appear to be close to agreeing on final revegetation plans which could be the subject of Court orders to secure the rehabilitation of the site, however only preliminary engineering drawings have been provided and no landscape plan has been provided. An update will be provided in oral submissions. 9. An engineering report in purported compliance with Order 9 was provided to the Council at 5pm on 26 February 2019. At the time of writing, I do not yet have instructions about the adequacy of this report. The respondents took some steps to secure engineering assistance in 7 December 2018, but this appears to have been an attempt to justify the retention of the unapproved structures, rather than a genuine attempt at compliance with the Court Orders, since the Engineer's instructions refer to "bulk earthworks plans" and a "concept boat ramp design". It is noted that the respondents' ... Dr Joliffe only inspected the subject land on ... 12 February 2019 ... [See T28.02.19 p8, LL21-40.] 10. These delays have had real environmental consequences, in that disturbed areas the subject of the Orders, particularly those adjacent to the river, have remained in a degraded, unsightly and unvegetated state, exposed to erosion and likely causing sediment runoff into the river for many weeks longer than they would have been if the respondents had taken prompt action to comply. The current degraded state of the land adjacent to the river is shown in the affidavit of Peter O'Neil (sic) dated 25 February 2019. (In par 3 of his affidavit, O'Neill deposes: Over the course of those further inspections, I have observed a large part of the site (where the unauthorised river entry ramp and driveway were previously located) consisting of bare soil and isolated weeds. This area of the site appeared to be showing visible signs of erosion of the river embankment, caused by lack of stability in the soil and its proximity to the Colo River coupled with the time over which the soil has been left exposed following removal of the river entry ramp and driveway.) (b) applications under the Roads Act for the driveway crossings and related works and structures partially created on both the southern and northern sides of Putty Road as referred to in the affidavit of Philip Khalifeh sworn 26 June 2018. (c) Approvals from Roads and Maritime Services for the position of the driveway crossings as referred to in the affidavit of Philip Khalifeh sworn 26 June 2018. 11. It appears that the respondents first took steps to secure engineering advice relating to these applications in the first week of December 2018, that is about 13 weeks after service of the Orders, and after the date for compliance. An approval was issued by Roads and Maritime Services (RMS) on 13 February 2019 for one driveway crossing north of Putty Road and one driveway crossing south of Putty Road. This was amended on 25 February 2019 to correct the location of the approved entries. However does not resolve the status of the other entries which RMS has not approved. (d) a survey report showing the location and position of the gate entranceway and fencing along the northern and southern sides of Putty Road adjacent to the subject land showing the position of that gate in relation to the boundaries of the land and to the zone boundaries. 12. The applicant accepts that this part of the order was complied with, as far as it relates to the property boundaries, in December 2018. Insofar as it relates to the zone boundaries, the applicant accepts that compliance is no longer necessary for the reasons put in paragraphs 13-15 of the affidavit of Robert Montgomery dated 11 December 2018. However, the Court should take into account the period after service of the Orders during which the respondents took no steps to comply with order 9(d). (See also oral submissions T28.02.19 p6, L18 to p9, L45.)

General

1. As Ms Walker submitted (T28.02.19 p9, L48-p10, L10): The underlying purpose of the exercise of the power to punish contempt is to protect the effective administration of justice by demonstrating that the Court's order will be enforced. So in a sense this is different from sentencing for environment offences generally. The issue is not only the environment harm that might be caused by the offence, but also the principle of upholding adherence to the Court's orders. ... the Court needs to impose an emphatic punishment to send the message that disobedience of the Court's orders will not be taken lightly ...
2. Her written submission (par 13) added this to those comments: ... Since any non-compliance with the orders of the Court is an interference with the administration of justice, the punishment must show the gravity of disobedience to a court's order. ...
3. When dealing with Class 5 prosecutions, the Court often has recourse to the provisions of the Crimes (Sentencing Procedure) Act 1999 ("CSP Act"), especially ss 3A and 21A, but perhaps also s 24(a).
4. The recent Court of Appeal decision in Dowling v Prothonotary of the Supreme Court of New South Wales [2018] NSWCA 233 held that those statutory provisions do not apply to contempt sentencing, but I accept Ms Walker's submission that the Court should apply "analogous principles" (T28.02.19 p10, L20).
5. The CSP Act (s 3A) helpfully notes that the purposes of sentencing are (emphasis added): (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.

Aggravation and Mitigation

1. Also potentially relevant in the present case are the following factors recognised by the CSP Act (in ss 21A and 24 - again emphasis added): 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: (a) the victim was a police officer, emergency services worker, correctional officer, judicial officer, council law enforcement officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim's occupation or voluntary work, (b) the offence involved the actual or threatened use of violence, ... (d) the offender has a record of previous convictions ..., (e) the offence was committed in company, ... (g) the injury, emotional harm, loss or damage caused by the offence was substantial, ... (i) the offence was committed without regard for public safety, ... (o) the offence was committed for financial gain, ... (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, (b) the offence was not part of a planned or organised criminal activity, (c) the offender was provoked by the victim, ... (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) the remorse shown by the offender for the offence, 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), ... (k) a plea of guilty by the offender (as provided by section 22 or Division 1A), ... 24 Court to take other matters into account In sentencing an offender, the court must take into account: (a) any time for which the offender has been held in custody in relation to the offence; ...
2. Aggravating factors must be proven by the Prosecutor beyond reasonable doubt, and mitigating factors proven by the Defence on the balance of probabilities: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270, at [27]; and R v Wickham [2004] NSWCCA 193, at [27].

Synthesising Objective and Subjective Factors

1. Determination of the appropriate penalty for any offence requires an "instinctive synthesis" of the objective and subjective sentencing factors involved: Markarian v the Queen ("Markarian") (2005) 228 CLR 357. See also Secretary, Department of Planning and Environment v SingTel Optus Pty Ltd [2019] NSWLEC 44, at [83]-[85].

Contempt Cases

1. In Wood v Staunton (No 5) (1996) 86 A Crim R 183, Dunford J distilled, at 185, from the major authorities, the following ten "relevant matters for consideration" when sentencing for contempt: 1. the seriousness of the contempt proved; 2. whether the contemnor was aware of the consequences to himself of what he did; 3. the actual consequences of the contempt on the relevant trial or inquiry; 4. whether the contempt was committed in the context of serious crime; 5. the reason for the contempt; 6. whether the contemnor has received any benefit by indicating an intention to give evidence; 7. whether there has been any apology or public expression of contrition; 8. the character and antecedents of the contemnor; 9. general and personal deterrence; and 10. denunciation of the contempt. (See also Principal Registrar of the Supreme Court of NSW v Jando (2001) 53 NSWLR 527; 125 A Crim R 473; [2001] NSWSC 969; Commissioner for Fair Trading v Partridge [2006] NSWSC 478; and Pittwater Council v Brown Brothers Waste Contractors Pty Limited (No 2) [2009] NSWLEC 210.)
2. Factor 1, "seriousness", raises the issue of characterising, or grading, proven contempts as "contumacious", "wilful", or "technical".
3. This task was discussed in detail by Biscoe J in both Burwood Council v Ruan ("Ruan") [2008] NSWLEC 167, at [7]-[14] and Mosman Municipal Council v Kelly (No 3) ("Kelly (No 3)") (2009) 167 LGERA 91; [2009] NSWLEC 92, at [72]-[85].
4. I respectfully adopt and apply, without repeating it, His Honour's analysis.
5. I also adopt the summary formulated by Molesworth AJ in Blacktown City Council v Everson ("Everson") [2019] NSWLEC 4, at [11]: Contempt can be characterised as technical, wilful, or contumacious. Technical contempt is where breach of the court order is casual, accidental, or unintentional. ... Wilful contempt is where there is deliberate disobedience (that is, the disobedience is not casual, accidental, or unintentional) but without the intention of defying the Court's authority. Contumacious contempt is where there is a deliberate intent to defy the Court's authority. ...
6. Gradation becomes relevant only on penalty, i.e. once contempt is found proven: Kelly (No 3), at [65] and [71].
7. I shall return to this gradation question below ([142]).

Defence Submissions Overall

1. On the Wood v Staunton factors, Dr Berveling submitted, on behalf of the Defendants (par 15): (1) seriousness - the charges concern, ultimately, failures to comply with short timeframes for compliance with orders, and no additional environmental harm resulted; (2) Awareness of consequences - the Defendants genuinely believed that they were exempt from the relevant laws and the jurisdiction of the Court, were not guilty of deliberate or wilful defiance of the Court, and responded immediately to appropriate legal advice; [(3), (4) and (6) do not apply] (5) reason for contempt - the failure to comply with the time limits was resolved once the Defendants sought and received, as urged upon them by the Court, appropriate legal advice; (7) apology or contrition - once they engaged solicitors, they pleaded guilty at the earliest opportunity, and have now complied "99%" (T28.02.19 p29, L14) with the Court's orders, and with additional requests from Council; (8) character and antecedents - see new Exhibits D2 and D3, and CVs annexed to Keith's affidavit 26 February 2019 (fols 20-27); (9) general and personal deterrence, and (10) denunciation - both human Defendants have been assessed (in new Exhibits D2 and D3) as being at a "low risk of reoffending"; they have been incarcerated, and, later, on strict bail conditions; their charity's status has been revoked; and they have incurred "financial costs". The Defendants accept the "fundamental" importance of compliance with civil enforcement orders, but the subject of the charges was "more about the length of time of non-compliance (about 4 months for most of the items subject of the Court's orders)".
2. In the context of those submissions regarding the lateness of compliance, Dr Berveling added (subs par 20(b)(ii)): Whilst the period for compliance to complete is longer than had been set out in the Court's Orders, ultimately compliance for the on-site requirements (Orders 6, 7 and 8) were mostly complete by mid-December (4 months after the Orders were made), and fully complete (with additional items removed as well) by late January 2019 (5 months), with all documents required pursuant to Order 9 other than the landscape plan having been provided by late February 2019 (6 months).

Gradation of Seriousness

1. The Prosecutor submits that the contempts are "contumacious", and "not merely" wilful, in that they are serious acts of "deliberate defiance of judicial authority" right from 30 August 2018 when the orders were served (see Walker subs pars 18-22, and T28.02.19 p11, LL1-48). Even the Defendants' correspondence, not to mention their behaviour and exchanges with Council officers and process servers, displayed what Ms Walker called (par 20) "a thoroughgoing rejection of the authority of the Court".
2. On the other hand, Dr Berveling submits (par 15(b)(iv)): The respondents' actions did not arise from any deliberate or wilful defiance of the Court and cannot be said to have been contumacious. That their stance was not wilful defiance of the Court can also be seen in the 1st respondent's reaching out on 13 September 2018 to the applicant's solicitor in Order (sic) to seek resolution of the dispute "in a disciplined manner", being "happy to mediate, to resolve to come to an agreement".
3. Reliance on that "reaching out" to refute contumacy is clearly ill-placed (see [137] above).
4. Dr Berveling also downplayed the proven offensive behaviour of the human Defendants, submitting (par 20(b)(v) -- footnotes omitted): The unpleasantness referred to in [54] of [Judgment No 2] and also in affidavits for the contempt proceedings should be considered a neutral factor: (1) any aggression from the respondents needs to be balanced by the commencement of the contempt proceedings each at the first available opportunities - 2 days after the Court's date of compliance ceased, and then without any warning (other than the obligatory part 40 rule 7 notice). (2) The affidavits of Phillip (sic) Khalifeh sworn 27 August 2018, 3 September 2018 and 13 September 2018 indicate that site inspections occurred on 24 August, 28 August, 29 August, 30 August, 3 September, 5 September and 11 September 2018. It is submitted that the frequency of those inspections was incessant, unrelenting and unreasonable in the circumstances. (3) The Affidavit Mark Cottom 28 September 2018 notes that the 1st respondent Mustapha initiated contact with Council's solicitor on 13 September 2018 and while the response thereto 27 September 2018 (page 176) suggests invocation of the Court's powers re contempt as a last resort, which does not appear as what actually happened.

Deterrence

1. Ms Walker argued very strongly in support of the imposition of penalties reflecting both general and specific deterrence.
2. She said in her written submissions (par 17) There is a need for general and specific deterrence in this case. The respondents have engaged in wilful contempt in the course of carrying out development of land, a common economic activity. For about 3 months after the service of the Orders they made no attempt to comply with the Orders. It is not unlikely that the respondents may seek to carry out developments on land in the future, and if so, they should be aware that disregard of the Court's Orders will not be tolerated. This is particularly true of the second respondent who works in the construction industry. In order to uphold the authority of the Court, it also necessary that other members of the community should be made aware that wilful defiance of the Court's orders for a period in the order of 3 months will not be taken lightly. and added orally (Tp10, LL27-50): In this case there is a particularly strong need for both general and specific deterrence. Specific deterrence because environmental planning breaches are things that happen in everyday life, everyone is engaged with the planning system at some point in their life and there is a risk certainly if a strong message isn't sent that compliance with the law and compliance with the Court orders won't be tolerated, that either of the respondents could reoffend. This is particular the case in relation to the second respondent who according to his sentence assessment report still is and has been working in the construction industry for 15 years and has some five employees under him so there would certainly be opportunities for him to breach the planning law again if he was not deterred from doing so. In relation to the first respondent, there's not that specific risk of reoffending but the risk is just the same as any member of society that could conceivably be engaged in activities related to the planning law. The need for deterrence is particularly great in light of the defiant attitude which the first and second respondents have expressed in their interactions with the Court and court officers to date and I will come to that more later. There is a need for general deterrence as well because the community, members of the community if they see other people carry on in defiance of the Court's orders and not being seriously punished may be tempted to do the same. It is obviously very important for the maintenance of the rule of law and integrity of the planning system that the Court's orders, particularly the Court's orders in relation to unlawful development should be respected.

Harm

1. "Harm" is a term of "broader notion", and wide scope, and includes both actual and potential (or risk of) harm: Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419, at [145]-[149], embraced recently by Pepper J in Environment Protection Authority v Whitehaven Coal Mining Limited ("Whitehaven") [2019] NSWLEC 27
2. The principal harm for the Court to consider in contempt cases is that done to the planning regime by behaviour such as that of the present Defendants. That systemic harm, and environmental harm (e.g. the clearing of 3.2ha out of 12.89ha), were both at the base of the Class 4 proceedings in this case, and the harm done before 16 July and/or 27 August 2018 was addressed by the civil enforcement orders made on those dates.
3. Ms Walker submitted (T28.02.19 p9, LL3-17): The orders of the Court were made to remedy some vegetation harm and removal, which occurred earlier. Obviously on this occasion we're not punishing the respondents for the harm that was caused, that's already been dealt with in the Court's orders of 27 August, but the harm that has been caused by the breach of the orders is that that vegetation remediation hasn't been fixed in the timely manner in which it should have, so we've lost some months during which vegetation could have been regrowing on that site. The environmental harm could have then been repaired and it hasn't been. There's an additional harm in that the time during which the areas have been left exposed they're obviously liable to erosion and liable to be sending sediment into the river, which is a harm that fining controls in this State particularly seek to avoid by having controls on vegetation clearing on river banks. So that is a real environment harm that has been caused by the delays in complying with o 9.
4. The failure to comply with the orders made on 27 August 2018 (other than Order 9) cannot be said to have led to specific environmental harm, but failure to comply with Order 9 has had adverse environmental consequences, and could yet have more.
5. Shortly after she made the comments quoted just above, Ms Walker said (Tp9, L48-p10, L10): The underlying purpose of the exercise of the power to punish contempt is to protect the effective administration of justice by demonstrating that the Court's order will be enforced. So in a sense this is different from sentencing for environment offences generally. The issue is not only the environment harm that might be caused by the offence, but also the principle of upholding adherence to the Court's orders. It's a more serious breach because the community relies on the Court to enforce environmental rules and if the Court takes action to enforce those rules and then that action in itself is ignored, the Court needs to impose an emphatic punishment to send the message that disobedience of the Court's orders will not be taken lightly ...

Subjective Considerations

1. To carry out my Markarian synthesis, I must now turn to the "subjective factors" in the case.
2. In the absence of any direct evidence from the Defendants, both Dr Berveling and Ms Walker invited the Court to consider the pre-sentence reports, albeit they were authored by different officers.
3. Notwithstanding that all three Defendants had entered pleas of guilty in late November 2018, Dr Mustapha Kara-Ali was, when interviewed for the report concerning him (new Exhibit D2), "still disputing the fairness or appropriateness of the charges, and denying that he was required to comply with Australian laws" (new Exhibit D2 p2, and T28.02.19 p13, LL33-34). He also continued attacking the Council for "provoking us not to co-operate" (new Exhibit D2 p2).
4. Ms Walker submitted (Tp13, LL35-45): Those expressions show that he had an ongoing contumacious attitude, notwithstanding the plea of guilty, and it would certainly counteract any impression of remorse that might otherwise be given by the guilty plea on 23 November 2018. Notwithstanding this, council accepts that the guilty plea is a mitigating factor, but less mitigating than it might otherwise be because of those ongoing expressions of defiance conveyed in that sentencing interview. In relation to the second respondent, he pleaded guilty on 23 November 2018 and there's nothing to indicate in his presentencing report that he didn't have an attitude of remorse, although he has not made any overt expression of remorse to the Court to date.
5. The report concerning Mustapha (new Exhibit D2) also mentioned (top of p2) that he had some non-environmental prior offences, which demonstrate, in Ms Walker's words (p14, LL1-3), his "disrespect for the authority of the State": See also Chief Executive, Office of Environment and Heritage v Douglas Brian Reitano (No 2) ("Reitano") [2019] NSWLEC 39, at [77]-[82].
6. The report also noted (at p2) that "he expressed a desire to cooperate with the Hawkesbury Council; however, did not express remorse for his offending and stated his intention to challenge the charges" (my emphasis).
7. Diaa (new Exhibit D3) displayed more "insight" - the report on him states (p2):

• Mr Kara-Ali Informed he is now aware he should have sort (sic) clarification with a solicitor before he started building, when the council became involved or even when the matter was taken to court.

Pleas of Guilty

1. When the Defendants were before the Court on 29 January 2019, I gave both counsel the pre-sentence reports.
2. I noted that "affirmation of innocence to a custodial advisor is not consistent really with a plea of guilty" (T29.02.19 p1, LL42-43), and asked Dr Berveling if his clients maintained their 12 pleas of guilty.
3. After seeking instructions, he responded (Tp2, LL12-15 - emphasis mine): The respondents accept and maintain their guilty pleas made 23 November 2018 in relation to the contempt charges. The respondents accept unequivocally the factual basis of the contempt charges and do not propose to challenge them.
4. In terms of Thomson/Houlton discounts (R v Thomson, R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309), I bear in mind that the contempt charges came before the Court five times before the Defendants' compulsory appearance on 12 November 2018, and that the pleas were entered on the first occasion after that (23 November 2018).
5. There has no doubt been some utilitarian benefit from the pleas, even in the unusual circumstances of this case, and I will apply a discount of 10%.

Contrition and Remorse

1. Beyond those pleas, there is no evidence before the Court of contrition or remorse, other than the comments Diaa made to the Corrections officer (see [164] above).
2. Ms Walker submits in that regard (par 25): The second respondent has no prior convictions. In his Sentencing Assessment Report he showed insight into his offending and stated that "he now realised how serious it was not to follow court orders". This is a mitigating factor. However, the Court should also take into account the fact that the second respondent has worked in the construction industry for approximately 15 years and has a business employing 5 staff members and a number of subcontractors. Therefore, he cannot claim to be ignorant of the system of planning law in New South Wales, or the role that the Court plays in this system. The need for specific deterrence is particularly strong in these circumstances.

Other subjective matters

1. There is no evidence of good character, and the Court is not satisfied that these Defendants have good chances of rehabilitation, or are unlikely to reoffend.
2. Nor do I accept Dr Berveling's submission (par 11(d)) that I should pay any particular regard to the fact that the two human Defendants have been, he said, "held in custody in relation to the offence", given they were detained overnight on 11 November 2018 (s 24(a)).

Arriving at penalties

1. It is necessary, when arriving at the appropriate penalties to impose on the three Defendants, that the Court consider: 1. the relative culpability of the corporate and human offenders; 2. the principle of totality; 3. the need for even-handedness, or consistency in sentencing; 4. the "utility" of imposing fines, from the viewpoint of the capacity of the offenders to pay them; and 5. the burden of any costs order made on sentence.
2. I now turn to consider each of these issues briefly, in turn.

(a) corporate c.f. human offenders

1. Obviously a company does not have or exhibit the emotions or wilfulness which can be observed in human beings, can affect relative culpability, and can influence gradation of corporate contempts (see [142] above), even though the association among the three Defendants in this case is very close, with the 2nd Defendant being the sole director of the third.
2. Dr Berveling submitted (par 21(c)) that a large fine was "inappropriate" for the 3rd Defendant, given the Defendants' "close association".
3. I do not really understand that submission, but I readily accept that the company should not be punished for the psychological elements of the offending in this case, including the human Defendants' displays of what Dr Berveling called (T28.02.19 p29, LL4 and 6) "anger of the moment".
4. Equally, I must have regard to the failure of the company to respond to the proceedings until 12 November 2018, and its failure to obey the orders of the Court, or to express any remorse for its contempt.
5. In the end, Dr Berveling agreed (T28.02.19 p27, LL40-47) with the concept that the Kara-Ali brothers should "carry the load", rather than the company.
6. I too accept that concept, and I intend to impose on the company fines representing 50% of the fines imposed on each of the two human defendants: see, e.g. Mosman Municipal Council v Kelly (No 6) [2010] NSWLEC 20.

(b) Totality

1. Because of the overlap among the twelve charges, the Court must apply the totality principle.
2. The principle was articulated by Street CJ in R v Holder; R v Johnston [1983] 3 NSWLR 245, at 260, in these terms (emphasis mine): …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 effect of this practical consideration is always to produce an ultimate aggregate which is less than that which would be arrived at by a straightforward adding up of the terms appropriate for the offences if each were viewed alone. In carrying out this process of adjustment, it is both inevitable as well as proper that the ultimate decision be arrived at in the light of the totality of the criminality involved in all of the offences…
3. Preston ChJ added a note of caution, in Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd ("Orica") [2015] NSWLEC 109, at [142]: Because there are two offences arising out of the same incident, the totality principle needs to be considered. The effect of the totality principle is to require the Court, which has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed, to review the aggregate sentence and consider whether the aggregate is just and appropriate and reflects the total criminality before the Court. In the case of fines, adjustment may be made by reducing the amount of the fine for each offence. Care needs to be taken, however, to ensure that any adjustment of individual sentences does not cause the aggregate sentence not to reflect the total criminality of the offender's conduct or the sentence for any individual offence to become disproportionate to the objective gravity of that offence.

(c) Even-handedness

1. The Court should be consistent in any pattern of sentencing for like offences, but each contempt case has its own unique combination of facts and circumstances, and contempt sentencing is "at large": Director-General of the Department of Fair Trading v Yang (2002) 132 A Crim R 438; [2002] NSWSC 754, at [12].
2. In Reitano, at [109], when considering the question of even-handedness/consistency in sentencing, Robson J said: I am also mindful of the statement of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45, at [54] (citations omitted): …a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits… "Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts." But the range of sentences that have been imposed in the past does not fix "the boundaries within which future judges must, or even ought, to sentence". Past sentences "are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence". When considering past sentences, "it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned."

(d) Utility of imposing fines

1. Section 6 of the Fines Act 1996 provides: Consideration of accused's means to pay In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount.
2. If satisfied that an offender would be unable to pay fines of a particular amount, the Court ought reduce them: R v Rahme (1989) 43 A Crim R 81.
3. Capacity to pay is a relevant consideration, but not decisive: see Darter v Diden; Darter v Yanto; Darter v Mansibu [2006] SASC 152; (2006) 94 SASR 505, at [29]-[31], and Mahdi Jahandideh v The Queen [2014] NSWCCA 178, at [17], both of which judgments Robson J cited in Reitano, at [122] and [123] respectively.
4. Preston ChJ said in Environment Protection Authority v Dib Hanna Abdallah Hanna [2018] NSWLEC 80, at [267]: However, whilst the means of an offender to pay any fine is a mandatory consideration, it may not be decisive. Other sentencing considerations, such as achieving general deterrence, may justify imposing a fine in a certain amount, even if the offender is unlikely to be able to pay the fine.
5. More recently, Pepper J said in Whitehaven, at [258]: The task of the sentencing court is to pursue the ideal of even-handedness in the matter of sentencing (R v Oliver (1980) 7 A Crim R 174 at 177; R v Visconti [1982] 2 NSWLR 104 at 107). However, care must be taken in the task of achieving consistency. There is always difficulty comparing the penalty in one case with a penalty in another because of the wide divergence of facts and circumstances in each case (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357] at [365]), and one case does not demonstrate the limits of a sentencing court's discretion (Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at 312 and Environment Protection Authority v Barnes [("Barnes")] [2006] NSWCCA 246 at [79]).
6. The Court has received no evidence regarding the financial position of the Defendants, other than the protestations of the human Defendants when pressed to provide sureties on the granting of their bail (T12.11.18 p9, LL13-31), and the fact that the corporate Defendant owns the subject land, which may or may not be encumbered.

(e) Costs

1. An order for payment of a prosecutor's costs is an aspect of punishment, and may be considered in the determination of the appropriate penalty: Barnes, at [78].
2. There is already in place an order for costs on the "ordinary basis" to be paid by the Respondents to the Applicant Council, in respect of the civil enforcement phase of these proceedings: Order (10) in par [59] of Judgment No 2.
3. In respect of the subsequent contempt phase of the proceedings, i.e. from 5 September 2018, if not 27 August 2018, until the date of this sentencing judgment, 18 April 2019, the Council notes (subs par 27): Although costs remain in the discretion of the Court, costs in contempt proceedings usually are awarded on an indemnity basis, because "nothing should be done to deter a person from bringing a contempt to notice of the Court; and the risk of having to bear any of the costs will often be a real deterrent". [Gerondal v Eurobodalla Shire Council (No 6) [2011] NSWLEC 132 at [19] citing ASIC v Sigalla (No 4) [2011] NSWSC 62]. A relevant factor is also that the prosecutor is a public authority seeking to uphold the statutory planning regime and the Court's role in enforcing compliance thereof [Lake Macquarie City Council v Gordon [2017] NSWLEC 122 at [65]]. The costs of the present proceedings have been increased unnecessarily by the respondents' efforts to evade service and their non-appearance at all of the directions hearings before 12 November 2018. In those circumstances it would be entirely reasonable to order the respondents to pay the applicant's costs on an indemnity basis.
4. Ms Walker pressed par 27 in her oral subs (T28.02.19 p17, L50-p18, L22). She said (p18, LL21-22): WALKER: ... There's no strict rule that costs are always granted on an indemnity basis in contempt proceedings but it is the usual order because of the need not to deter any person from enforcing contempt and in this case it's especially true because the council is the statutory planning authority with responsibility for enforcing the law. Also Moore J in Lake Macquarie City Council v Gordon at 65 stressed that he saw it as appropriate to grant indemnity costs to a council who was seeking to enforce the planning law in contempt proceedings and we say we're in an exactly analogous situation here. Also the Court should have regard to the fact that the costs have been increased by the respondents initial evasion of service and non-appearance at all of the directions hearing before 12 November 2018. In those circumstances it would be reasonable to order costs on an indemnity basis. HIS HONOUR: Well council's costs are increased by my perseverance with trying to get them to come. WALKER: Yes, it's difficult to see how those costs could have been avoided. We say they're of the nature of the contempt and therefore they are costs the respondents should bear. ...

Conclusions

1. The charges should be considered in their groups, based on the different types of offending.
2. All three Defendants were charged with breaching Order 6 by disobeying a direct order of the Court that they cease construction.
3. The flagrant breach of that order lasted for 26 days, and, had there been only one offender, I would have fined that offender $50,000, before discounts, on that charge.
4. All three were charged with breaches of Orders 7 and 8, which required various demolitions/removals.
5. All those tasks have now been completed, but it took the offenders two months in the case of Order 8, and up to 113 days for some of the items in Order 7.
6. Had there been a single offender, I would have fined it $15,000 for breaching Order 8, and $30,000 for breaching Order 7, both amounts before discounts.
7. Order 9 has been partially complied with, but its continued breach involves further environmental harm.
8. It was really concerned with the management of the environmental harm, which was factored into the orders I made on 27 August 2019.
9. I would impose on a single offender a fine of $30,000, before discounts, and a continuing fine of $6,000 per month, commencing 1 July 2019 (to be shared equally by the three Defendants).
10. Leaving aside the continuing fine, the total penalties I have suggested for the hypothetical single offender amount to $125,000.
11. That "load" ([181]) should be borne by all three Defendants - 40% by each of the Kara-Ali brothers, and 20% by the Defendant company.
12. Having regard to the principle of totality, all the fines imposed should be reduced by 10%, and they will each then be discounted by a further 10% on account of the guilty pleas.
13. Those calculations bring the Court to the fines embodied in the orders set out below.

Orders

1. The Court makes the following orders: 1. Mustapha Kara-Ali, Diaa Kara-Ali, and Southern Chariot Stud Pty Ltd are each convicted of contempt of Court, as charged on 4 September 2018, 27 September 2018, 13 September 2018, and 11 October 2018, respectively, in respect of Orders 6, 7, 8, and 9 made by this Court on 27 August 2018. 2. Each of Mustapha Kara-Ali and Diaa Kara-Ali is ordered to pay the following fines: 1. In respect of contempt of Order 6 $16,200; 2. In respect of contempt of Order 7 $9,720; 3. In respect of contempt of Order 8 $4,860; 4. In respect of contempt of Order 9 $9,720, plus $2,000 for each calendar month after 30 June 2019 that Order 9(a) is not complied with. 1. Southern Chariot Stud Pty Ltd is ordered to pay the following fines: 1. In respect of contempt of Order 6 $8,100; 2. In respect of contempt of Order 7 $4,860; 3. In respect of contempt of Order 8 $2,430; 4. In respect of contempt of Order 9 $4,860, plus $2,000 for each calendar month after 30 June 2019 that Order 9(a) is not complied with. 1. Each of Mustapha Kara-Ali, Diaa Kara-Ali, and Southern Chariot Stud Pty Ltd is granted leave to apply to the Court by Notice of Motion to revoke or vary the monthly penalty in order 2(iv) and/or 3(iv) above, upon sufficient cause being shown. 2. Mustapha Kara-Ali, Diaa Kara-Ali, and Southern Chariot Stud Pty Ltd are ordered, jointly and severally, to pay the costs of the Council, incurred in respect of these proceedings since 27 August 2018, on an indemnity basis. 3. All Court Books, the Evidence Book, all exhibits except Exhibit P1, and the Defendants' folder of authorities are returned.

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