[2017] NSWCCA 302
Environment Protection Authority v Wattke
[2009] NSWLEC 1
Garrett v Williams (2006) 160 LGERA 115
[2006] NSWLEC 785
Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189
[2006] NSWLEC 242
Hili v The Queen Jones v The Queen (2010) 242 CLR 520
Source
Original judgment source is linked above.
Catchwords
[2017] NSWCCA 302
Environment Protection Authority v Wattke[2009] NSWLEC 1
Garrett v Williams (2006) 160 LGERA 115[2006] NSWLEC 785
Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189[2006] NSWLEC 242
Hili v The Queen Jones v The Queen (2010) 242 CLR 520[2010] HCA 45
Hoare v The Queen (1989) 167 CLR 348[1989] HCA 33
Keir v Sutherland Shire Council [2004] NSWLEC 754
Latoudis v Casey (1990) 170 CLR 534[1990] HCA 59
Markarian v The Queen (2005) 228 CLR 357[2005] HCA 25
Mill v The Queen (1988) 166 CLR 59[1988] HCA 70
Muldrock v The Queen (2011) 244 CLR 120[1988] HCA 57
Postiglione v The Queen (1997) 189 CLR 295[1997] HCA 26
R v Olbrich (1999) 199 CLR 270[1999] HCA 54
R v Peel [1971] 1 NSWLR 247
R v ThomsonR v Houlton (2000) 49 NSWLR 383[2000] NSWCCA 309
R v Visconti [1982] 2 NSWLR 104
Veen v The Queen (1979) 143 CLR 458[1979] HCA 7
Veen v The Queen (No 2) (1988) 164 CLR 465
Judgment (23 paragraphs)
[1]
SOLICITORS:
Wilshire Webb Staunton Beattie (Applicant)
Georges River Council (Respondent)
File Number(s): 19/323457, 19/323458, 19/323459, 19/323460
Decision under appeal Court or tribunal: Local Court of NSW
Jurisdiction: Criminal
Date of Decision: 17 September 2019
Before: Local Court Magistrate Lyon
[2]
Judgment
The Appellant appeals against the severity of four penalties imposed by the Local Court at Sutherland (Local Court) on 17 September 2019 in four separate appeals. Such appeals are enabled by s 31(1) of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act). The four offences concerned breaches of s 4.2 the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) being the carrying out of development in breach of the conditions of development consent. The Appellant pleaded guilty to each of the offences in the Local Court. The Appellant was granted leave to appeal out of time pursuant to s 33 of the CAR Act on 22 November 2019. The offences are ones of strict liability and mens rea is not an element of the offences. A plea of guilty means the essential elements of the offence are not disputed by a defendant.
An appeal to this Court from the Local Court is enabled by s 31(1) of the CAR Act. Under s 37(1) the appeal is a rehearing on the evidence before the Local Court. No application to rely on additional evidence was made under s 37(2) of the CAR Act. In this appeal I consider the matter afresh and it is not necessary that I find fault in the magistrate's reasoning: Franks v Woollahra Municipal Council [2007] NSWLEC 461 at [24]. Under s 39(2) of the CAR Act the Court may determine an appeal against sentence by setting aside or varying the sentence, or dismissing the appeal. Under s 49(2) the Court can exercise any function that the Local Court could have exercised in the original proceedings. A higher sentence may be imposed if the appropriate "Parker" warning (Parker v Director of Public Prosecutions (1992) 28 NSWLR 282) has been given. No such warning was given at the outset of the appeal hearing.
[3]
Statutory framework
Relevant sections of the EPA Act provide as follows:
Part 1 Preliminary
…
1.3 Objects of Act
The objects of this Act are as follows -
(a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State's natural and other resources,
(b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment,
(c) to promote the orderly and economic use and development of land,
(d) to promote the delivery and maintenance of affordable housing,
(e) to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats,
(f) to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage),
(g) to promote good design and amenity of the built environment,
(h) to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants,
(i) to promote the sharing of the responsibility for environmental planning and assessment between the different levels of government in the State,
(j) to provide increased opportunity for community participation in environmental planning and assessment.
…
Division 4.1 Carrying out of development - with consent, without consent and prohibited
…
4.2 Development that needs consent
(1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless-
(a) such a consent has been obtained and is in force, and
(b) the development is carried out in accordance with the consent and the instrument.
Maximum penalty-Tier 1 monetary penalty.
…
Part 9 Implementation and enforcement
…
Division 9.6 Criminal offences and proceedings
…
9.51 Maximum monetary penalty - Tier 1, Tier 2 or Tier 3
If Tier 1, Tier 2 or Tier 3 is specified as the maximum monetary penalty at the end of a provision (or a number of provisions) of this Act, a person who contravenes or fails to comply with that provision (or those provisions) is guilty of an offence and liable to a monetary penalty not exceeding the relevant penalty specified in the following sections. If a period of imprisonment is also specified, the person is also liable to imprisonment not exceeding the period so specified.
…
9.53 Maximum penalty - Tier 2
(1) If Tier 2 is specified as the maximum penalty at the end of a provision (or a number of provisions) of this Act, a person who contravenes or fails to comply with that provision (or those provisions) is guilty of an offence and liable to a penalty not exceeding -
(a) in the case of a corporation -
(i) $2 million, and
(ii) for a continuing offence - a further $20,000 for each day the offence continues, or
(b) in the case of an individual -
(i) $500,000, and
(ii) for a continuing offence - a further $5,000 for each day the offence continues.
(2) If a period of imprisonment is also specified, the person is also liable to imprisonment not exceeding the period so specified.
[4]
Evidence
The Appellant tendered an "Agreed Bundle of Documents" (Ex A) containing: summons in each of the four proceedings, court attendance notices in each of the four proceedings, "Court Order Notice" issued by the Local Court, "Agreed Statement of Facts" in the Local Court proceedings, each parties' written submissions in the Local Court proceedings, evidence and documents tendered in the Local Court proceedings, and transcript of Local Court proceedings. The evidence tendered in the Local Court proceedings consisted of "Statement of Evidence of Michael Danny Cufer" (tendered by the Council), "Statement of Evidence of Christopher Michael Young" (tendered by the Council), and a character reference provided by Julian Nugent of Westpac (tendered by the Appellant).
The "Statement of Evidence of Christopher Michael Young" dated 23 August 2019 was tendered by the Council in the Local Court proceedings and included in the Agreed Bundle of Documents. Attachments included plans approved with the modification application including a plan identified as "Ground Floor Plan" (drawing no CC03). Mr Young is a town planner employed by the Council since February 2018 to supervise the processing of development applications and applications for modification of development consents. Mr Young gave opinion evidence that the environmental harm occasioned by the Appellant's excavation and levelling of the site had increased potential for natural subsurface drainage patterns to be altered, could cause potential vibration damage to neighbouring properties, and could undermine neighbouring properties and cause structural instability to structures close to the property boundary. Mr Young gave opinion evidence that the environmental harm occasioned by the Appellant's sub-floor excavation and subsequent increase of floor space would have resulted in a building substantially larger in floor space resulting in bulk inappropriate to the locality and zone of the premises and in breach of the local environmental plan. Mr Young concluded that it was his opinion that the dwelling as constructed would not have been approved by Council if submitted as part of a development application.
The matters before the Local Court proceeded on the basis of a statement of agreed facts (SOAF) which is also relied on in this appeal. It states (no annexures included):
1. Background
1.1. These proceedings relate to four (4) Court Attendance Notices issued in relation to alleged offences against the Environmental Planning and Assessment Act 1979 (NSW) (EPAA).
1.2. The Court Attendance Notices were all issued in relation to a development site at Lot 12 in Deposited Plan 25043, known as 18 Riversdale Avenue, Connells Point, NSW (the Premises).
1.3. The alleged offences were as follows:
1.3.1. Court Attendance Notice 1, (proceedings 2019/230961) - Carry out development not in accordance with consent - excavation to boundaries of Premises that was not authorised by the Consent;
1.3.2. Court Attendance Notice 2, (proceedings 2019/230871) - Carry out development not in accordance with consent - excavation took place in the sub-floor area of the dwelling that was not in accordance with the Consent and which resulted in an increase in gross floor area;
1.3.3. Court Attendance Notice 3, (proceedings 2019/230834) - Carry out development not in accordance with consent - swimming pool and retaining walls on the Premises were not constructed in accordance with the Consent;
1.3.4. Court Attendance Notice 4, (proceedings 2019/231026) - Carry out development not in accordance with consent - a lift shaft was built in the entrance foyer of the Premises.
1.4. The defendant (Mr Hijazi) at all relevant times owned the Premises. A title search of the Premises is contained at Annexure A.
1.5. The prosecutor, Georges River Council (Council) at all relevant times was the council constituted by the Local Government Act 1993 (NSW) for the local government area in which the Premises is located.
2. Development Consent
2.1. Council issued Mr Hijazi with a development consent number DA 274/2016 for demolition of existing structures onsite and construction of a new multi storey dwelling with inground pool in respect of the Premises on 24 May 2017 (Consent), a copy of which is contained at Annexure B.
2.2. The Consent was granted in relation to, relevantly, the following plans:
2.2.1. Drawing Number DA02 Revision A dated 14 December 2016 (DA02);
2.2.2. Drawing Number DA03 Revision B dated 10 April 2017 (DA03);
2.2.3. Drawing Number DA04 Revision A dated 14 December 2016 (DA04);
2.2.4. Drawing Number DA10 Revision A dated 14 December 2016 (DA10).
(Collectively called the Approved Plans), which are contained at Annexure C.
2.3. A Construction Certificate No. CC2016/0030 was issued pursuant to the Development Consent on 2 February 2018.
3. The Alleged Offences
3.1. Work in relation to the development was carried out on the Premises at the direction of Mr Hijazi prior to or on or around 30 October 2018.
3.2. Contrary to the terms of the Consent, Mr Hijazi did not implement the development in accordance with the Approved Plans.
3.3. The development departed from the Approved Plans in the following respects:
3.3.1. Excavation to the boundary
Excavation was undertaken to the boundary at the rear, front and side boundaries of the Premises, exceeding excavation permitted by DA02.
The area and the extent of the unauthorised excavation is clearly shown in Annexure D.
3.3.2. Additional floor space
Four additional rooms, with a total additional floor area of between 122m2 and 150m2 were created in the sub-floor space by unauthorised excavation, contrary to DA03.
A floorplan showing mark-ups and photographs of the additional floor area is contained in Annexure E.
3.3.3. Swimming pool and retaining walls
The swimming pool located at the rear of Premises was not built in accordance with the approved Upper Ground Floor Plan DA04, being constructed at 13.9m, 3.27m longer than the approved length of 10.63m. In addition, the retaining walls to be built along each boundary at the front of the Premises and the retaining wall spanning the site adjacent to the swimming pool at the rear of the Premises were not constructed, contrary to DA02, DA03 and DA04.
A picture showing the additional area of the swimming pool is contained in Annexure F.
3.3.4. Addition of lift well
A lift well had been added to the entrance foyer of the Premises, contrary to DA03 and DA04.
4. Council Inspection 30 October 2018
4.1. As a result of a complaint, Council officer Michael Cufer attended at the Premises on 30 October 2018. Mr Cufer observed that works appeared to have been carried out not in accordance with the Approved Plans.
4.2. Subsequently, Council issued a Stop Work Order on 31 October 2018 which is contained in Annexure G.
5. Council Inspection 20 November 2018
5.1. On Tuesday 20 November 2018 at around 11.30am an inspection took place at the Premises between architect Carlos Hafouri and Council officers.
5.2. Five areas of unauthorised development were identified by Council officer Michael Cufer at that inspection, as follows:
5.2.1. Area 1: The failure to construct retaining walls along each boundary at the front of the Premises and over excavation of natural ground level to the boundary of the Premises;
5.2.2. Area 2: The exclusion of the approved retaining wall adjacent to the pool at the rear of the Premises and excavation of natural ground level along all boundaries;
5.2.3. Area 3: Additional excavation of the subfloor level, creating two rectangular rooms behind and alongside the garage and two additional triangular rooms between the approved dwelling and adjacent to each side boundary;
5.2.4. Area 4: A lift shaft or void was added to the entrance foyer;
5.2.5. Area 5: The constructed pool measures approximately 3.27 metres longer than the approved length.
6. Modification Application
6.1. On 14 February 2019 the defendant filed with Council an application for modification of the Development Consent, MOD2019/0020 (Modification Application). A copy of the Modification Application is contained at Annexure H.
6.2. The description of the modification on page 1 of the Modification Application was as follows:
6.2.1. "Sub-floor storage area. New plant and machinery rooms. Rear yard leveling (sic). Extension of pool length."
6.3. Following the submission of various amended plans and material by the defendant, the Modification Application was determined by way of approval on 26 July 2019. A copy of the Modification Consent is contained at Annexure I.
6.4. A copy of the stamped plans approved by the Modification Consent is contained at Annexure J.
6.5. The Modification Application sought post hoc consent to the areas of noncompliance giving rise to the offences. The Modification Consent encompasses those areas.
7. Environmental Harm
7.1. Excavation to the boundary
7.1.1. The environmental harm occasioned by the [sic] Mr Hijazi's excavation to the boundary and levelling of the site is as follows:
7.1.1.1. Increase in the potential for natural subsurface drainage patterns to be altered;
7.1.1.2. Potential vibration damage to neighbouring properties while it was occurring;
7.1.1.3. Potential to undermine neighbouring properties and cause structural instability to neighbouring properties and structures on neighbouring properties, particularly any structure close to the property boundary.
7.2. Additional floor space
7.2.1. The environmental harm occasioned by the sub-floor excavation and subsequent increase of floor space in the dwelling is as follows:
7.2.1.1. It would have resulted in a building that would be substantially larger in its floor space and therefore resulting bulk, scale and height than is appropriate in the locality and Zone of the Premises.
7.2.1.2. It would have substantially breached the Floor Space Ratio prescribed in Kogarah Local Environmental Plan 2012 s clause 4.4A.
7.2.2. The dwelling as constructed with the additional sub-floor floor space would not have been approved by Council if submitted as part of a Development Application.
7.2.3. Compared to the original DA plans, the FSR of the amended plans submitted with the Modification Application was calculated to be 432m2 or 0.475:1, not including areas of the Premises that were required to be sealed off so that it is not useable or accessible. The FSR of the amended Modification Application plans did not comply with the maximum FSR of 0.47:1 applicable to the Premises, however it was acceptable as the FSR was sufficiently reduced to be only a minor departure to the maximum FSR.
8. Matters known to Council
8.1. The Council is not aware of any prior convictions of the defendant.
[5]
Approach to sentencing
I am sentencing the four offences afresh. The purposes of sentencing are set out in s 3A of the Crimes Sentencing Procedure Act 1999 (NSW) (CSP Act), aggravating factors in s 21A(2) and mitigating factors in s 21A(3). There are no aggravating factors as specified in s 21A(2) relied on by the Council, the Prosecutor.
The sentence must reflect all the relevant objective circumstances of the offence and subjective circumstances of a defendant: Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 at 490 (Jacobs J) and Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 (Veen (No 2)) at 472-73 (Mason CJ, Brennan, Dawson and Toohey JJ), 490-91 (Deane J). The sentence should not exceed what is "justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances": Veen (No 2) at 472, 485-86, 490-91, 496 and Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 at 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ).
When sentencing, any matter adverse to a defendant must be proved by a prosecutor beyond reasonable doubt: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at 281. Any contested matter relied on by a defendant must be established on the balance of probabilities: R v Olbrich at 281.
[6]
Objective seriousness
In determining the objective seriousness of an offence the Court can consider the following factors as identified in Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34 at [163] and Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242 at [110]: the nature of the offence having regard to its place in the statutory scheme, the maximum penalty for the offence, the environmental harm caused by the offence, the defendants state of mind, the defendant's reasons for committing the offence, the foreseeability of the risk of harm to the environment, the practical measures available to the defendant to avoid harm to the environment and the defendant's control over the causes of the harm.
The charges arose from work being carried out at the direction of the Appellant at his home in the course of renovations for which he had development consent to carry out the development in accordance with approved plans. The unauthorised work was (i) excavation to the boundary of the property; (ii) extensive underfloor excavation; (iii) extension of the swimming pool; and (iv) the installation of a lift well.
[7]
Nature of offences
A fundamental consideration for environmental offences is the extent to which a defendant's conduct offends against the legislative objectives expressed in the offence: R v Peel [1971] 1 NSWLR 247 at 262; Garrett v Williams (2006) 160 LGERA 115; [2006] NSWLEC 785 at [89]; Garrett v Freeman (No 5) (2009) 164 LGERA 287; [2009] NSWLEC 1 at [52]. The objects of the EPA Act are set out above in [3]. The Appellant's actions undermine the objects of the EPA Act. The offences are objectively serious in undermining the promotion of the orderly use and development of land as identified in the EPA Act s 1.3.
[8]
Environmental harm
The SOAF identifies at par 7 the agreed extent of environmental harm in relation to the excavation to the boundary (7.1) and additional floor space (7.2). The Appellant submitted that the opinion evidence of Christopher Young concerning environmental harm (summarised above in [6]) is speculative and unsupported by objective evidence. That the works have now been the subject of a modification application suggests the absence of environmental harm. This submission is contrary to the SOAF and is not accepted.
I do not accept that all the work the subject of the four charges was regularised subsequently by the Council's approval of a modification application. In the approved amended plan identified as "Ground Floor Plan" (drawing no CC03) a large area at the back of the garage was labelled "back-filled and sealed area is not accessible". The large additional area of underfloor excavation was not approved and is unable to be utilised. I agree with the Council's submission that there was potential for the offending conduct to cause harm to the environment, given the avoidance of assessment of potential harm. There was no opportunity for the usual development assessment process by the Council of potential harm to neighbouring properties due to the excavation to the boundary (SOAF 7.1) and the floor space ratio controls of the Kogarah Local Environmental Plan not being complied with (SOAF 7.2). While no actual harm was demonstrated, on the evidence there was certainly potential for harm.
[9]
Foreseeability of the risk of harm to the environment
The Appellant accepts that any potential harm could have readily been avoided by obtaining approval from the Council and carrying out the work subject to that consent.
[10]
Practical measures available to the Appellant to avoid harm to the environment
The Appellant accepts that there were practical measures that could have been taken to avoid the harm caused. The Appellant had control over the causes of harm.
[11]
State of mind
The Appellant's counsel submitted that he accepts that ignorance is no excuse. The Appellant's counsel submitted that he always intended to regularise the modification works (for which there is no evidence) and has done so in order to ensure the building is compliant. The Appellant accepts that he should have obtained development consent for all the work he undertook prior to it being carried out. He has regularised the works so that any foreseeable harm has been minimised. I have identified above that not all the unauthorised work was regularised by the later modification.
The Council submitted that the state of mind of the offender was deliberate. The Appellant has not expressed remorse or otherwise explained his state of mind. In the absence of evidence from the Appellant of motivation or expressions of remorse the Council's submissions are correct.
[12]
Reasons for committing offences
The Appellant's counsel submits there is no evidence that the offences were committed for any reason that would increase the objective seriousness of the offences. The reason for constructing the lift shaft was that the Appellant's family included people with disabilities who would need a lift to access the premises. The reason for changes to the swimming pool was that the Appellant assumed reducing the width while increasing the length resulting in a net loss surface area meant the change would not require development consent. The reason for excavation of the sub-floor area was to remove unstable material and create a stable foundation. A doorway was constructed to access waterproofing, plumbing and electrical services but there was no intention of making the space habitable. The reason for unauthorised excavation to the boundaries was that the Appellant was told cutting to the boundary then backfilling in irregular areas to reduce cost was "how things were done" and the subcontractors he authorised to do the work did not return to complete the backfill. There was no evidence before the Court to support these submissions so it is difficult to give them much weight.
I note that before the Local Court the Appellant's legal representative submitted without evidence that the Appellant had acted on the advice of his contractors. The magistrate did not accept that submission in the absence of any evidence.
[13]
Finding of objective seriousness
Taking into account the various factors identified above in the context of renovations to an existing residential home, the Appellant's culpability is at the high end of the low range of culpability in all four offences.
The excavation to the boundaries of the property charge and the excessive underfloor renovation charge are more serious given the potential for environmental harm caused by these.
[14]
Subjective factors
Some matters in mitigation under s 21A(3) are relevant.
[15]
Early plea of guilty (s 21A(3)(k))
It was agreed that the Appellant pleaded guilty early to the four offences. Under s 22(1) of the CSP Act, the Court must take into account the fact that an offender has pleaded guilty. The Court of Criminal Appeal has stated that the appropriate range for such a discount is 10 to 25 percent: R v Thomson; R v Houlton at [152].
[16]
No prior convictions (s 21A(3)(i))
The Appellant has no prior convictions.
No specific submissions were made in relation to the other matters that can be considered in mitigation. A character reference was before the Local Court and was in the bundle of material tendered in these appeals. I accept that the Appellant is of good character and is unlikely to re-offend.
[17]
Sentencing principles - deterrence
Deterrence is an important factor in sentencing for environmental offences. As held by Preston CJ in Bentley v BGP Properties Pty Ltd at [139]-[140]:
The sentence must serve the purpose of general or public deterrence. It is the duty of the Court to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who might otherwise be tempted by the prospect that only light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597 to 598.
This factor is particularly relevant to environmental offences. Persons will not be deterred from committing environmental offences by nominal fines: Environment Protection Authority v Capdate Pty Limited (1993) 78 LGERA 349 at 354 and Director-General, National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 (27 September 2002) at paras 85 and 93 per Lloyd J.
[18]
Even-handedness
The principle of even-handedness requires that the Court consider if there is any sentencing pattern for like offences in order to determine a consistent approach to penalty: R v Visconti [1982] 2 NSWLR 104 at 107 (Street CJ, Lee and Maxwell JJ agreeing). This principle must always be applied subject to the particular circumstances of the case before the Court: Hoare v the Queen at 354 (Mason CJ, Dean, Dawson, Toohey and McHugh JJ); Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [42] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). A history of sentencing in other cases does not limit my sentencing discretion.
The Appellant submitted that the principle of even-handedness was not correctly applied by the Local Court. The ascertainment of a general pattern of sentencing for offences of this kind is a relevant consideration as broadly similar cases should be dealt with similarly: Connell v Santos NSW Pty Limited [2014] NSWLEC 1 at [161]. A sentencing trends report titled "Environmental planning and protection offences often prosecuted in the NSW Local Court" provided to the Local Court showed the mean fine imposed for offences of carrying out development not in accordance with development consent as $3,337 and the median fine as $1,000. Further, an examination of comparable cases demonstrates that the extent of fines issued by the Court for significant amounts of works carried out to dwelling houses without (or not in accordance with) development consent have total fines in the vicinity of $6,000-$35,000: Franks v Woollahra Municipal Council; Nasser v Hurstville City Council [2007] NSWLEC 720; Zhu v Auburn Council [2009] NSWLEC 97; Waverley City Council v Boris Meck [2005] NSWLEC 655; Keir v Sutherland Shire Council [2004] NSWLEC 754.
The Council submitted the Court should give no weight to mean or median fines imposed by reference to the sentencing trends report. Contemporary examples of unauthorised development involving dwellings have attracted fines between $28,000 and $105,000: Canterbury-Bankstown Council v Naji [2016] NSWLEC 101; Burwood Council v Doueihi [2013] NSWLEC 196; Willoughby Council v Livbuild Pty Ltd [2015] NSWLEC 34; Alramon Pty Limited v City of Ryde Council [2014] NSWLEC 100; Cumberland Council v Badaoui Habib [2017] NSWLEC 18.
In Canterbury-Bankstown Council v Naji the Defendant pleaded guilty to one offence against former s 76A(1) of the EPA Act for carrying out development otherwise than in accordance with a complying development certificate (CDC). There was no evidence of any actual or potential environmental harm. The defendant accepted that the offence undermined the New South Wales planning system (at [19]). On state of mind, the defendant accepted that he acted negligently in failing to get professional advice (at [24]). The prosecutor did not establish beyond reasonable doubt that the defendant acted deliberately in failing to comply with the CDC plans (at [24]). The objective seriousness of the offence was at the high end of the low range (at [27]). The defendant was fined $28,000 (at [49]).
[19]
Totality principle
The sentencing principle of totality is relevant where more than one similar offence is committed to ensure that the sum of any fines imposed is not disproportionate to the total criminality of a defendant: Environment Protection Authority v Wattke; Environment Protection Authority v Geerdink [2010] NSWLEC 24 at [98] citing Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 at 62; Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26; and Pearce v The Queen (1988) 194 CLR 610; [1988] HCA 57. All the offences were charged as occurring on the same day, 30 October 2018. The offences all concerned work done on the same site arising from the same overall project of a home renovation. As there are four offences arising essentially from the same circumstances close together in time I will apply the totality principle in setting penalties to some degree.
[20]
Conclusion on penalty
When sentencing the Court must apply the instinctive synthesis approach by identifying all the relevant factors, discussing their importance and making a "value judgment as to what is the appropriate sentence given all the factors of the case": Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26] unanimously following Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51] (McHugh J). The sentence must reflect all the relevant objective circumstances of the offence and subjective circumstances of the defendant: Veen v The Queen at 490 (Jacobs J) and Veen (No 2) at 472-473 (Mason CJ, Brennan, Dawson and Toohey JJ), 490-491 (Deane J). The sentence should not exceed what is "justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances": Hoare v the Queen at 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ); Veen (No 2) at 472, 485-486, 490-491 and 496. In Dyno Nobel Asia Pacific Pty Ltd v Environment Protection Authority (2017) 228 LGERA 55; [2017] NSWCCA 302 at [35] the Court of Criminal Appeal (Simpson JA, Hulme and Wilson JJ agreeing) expressed concern about applying a two-stage process to sentencing.
Given the seriousness of matter numbers 19/323457 and 19/323459, I consider the Local Court penalty imposed is appropriate. Those appeals will be dismissed. I will reduce the amount of penalty in matter numbers 19/323460 and 19/323458. Where the amount of the penalty is less than the amount imposed by the Local Court the appeal will be upheld and a different penalty imposed.
[21]
Costs
The Appellant has been partially successful in that two of four appeals will be upheld. Pursuant to s 49(4) of the CAR Act the Court may make such order as to costs to be paid by either party as it thinks just. That exercise of discretion must be subject to s 70. Section 70 identifies the limited circumstances in which costs may be awarded against a public prosecutor. None arise here. Accordingly the only costs order I am considering is whether the Appellant should pay any of the Prosecutor's costs. Costs are compensatory not punitive per Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 at 543. Exercising my discretion in all the circumstances, each party should pay their own costs.
[22]
Orders
The Court makes the following orders:
1. In proceedings No 19/323457 (excavation to boundaries of the premises) the appeal against the severity of sentence imposed in Local Court matter no 2019/230961 is dismissed.
2. In proceedings No 19/323459 (excavation of sub-floor area) the appeal against the severity of sentence imposed in Local Court matter no 2019/230871 is dismissed.
3. In proceedings No 19/323460 (swimming pool):
1. The appeal against the severity of sentence imposed in Local Court matter no 2019/230834 is upheld.
2. The penalty order imposed by the Local Court of $30,000 on 17 September 2019 is set aside.
3. A penalty of $10,000 is imposed.
1. In proceedings No 19/323458 (lift shaft):
1. The appeal against the severity of sentence imposed in Local Court matter no 2019/231026 is upheld.
2. The penalty order imposed by the Local Court of $30,000 on 17 September 2019 is set aside.
3. A penalty of $10,000 is imposed.
1. Each party is to pay their own costs of these appeals.
2. The exhibits are returned.
[23]
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Decision last updated: 24 April 2020
The offences are Tier 2. The jurisdictional limit of the Local Court was $110,000 for each offence. The maximum penalty for each offence in this Court is $500,000.
In an ex tempore judgment delivered on 17 September 2019 the magistrate fined the Appellant $30,000 for each offence. In doing so he referred to the application of the totality principle and the early pleas of guilty by the Appellant in arriving at these four identical penalties.
The Appellant brings these appeals against the sentence imposed by the Local Court on the basis that the sentences were too severe in the circumstances. More specifically, that:
1. The objective seriousness of the offences and the subjective circumstances of the Appellant relevant to the offences did not justify the fine imposed.
2. The application of the totality principle, having regard to the sentence being imposed in respect of the four offences, did not justify the fine imposed.
3. The application of an appropriate discount arising from the utilitarian value of the Appellant's plea of guilty and co-operation with the Georges River Council (Council), did not justify the fine imposed.
4. The proper application of the principle of even-handedness did not justify the fine imposed.
The Appellant submitted that an appropriate discount was not applied by the Local Court. The Appellant's early plea should have attracted a 25 percent discount: R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309. The penalty should also reflect a discount for the Appellant's cooperation in complying with the Council's "Stop Work Order" on 31 October 2018 and working with the Council to regularise the works. The penalty imposed of $120,000 (plus costs) is significantly greater than what is just and appropriate and was disproportionate to the criminality involved. The appropriate penalty before discounts for an early plea of guilty (25 percent) and cooperation would not exceed $20,000.
In Burwood Council v Doueihi the defendant pleaded guilty to one offence against former s 76A(1) of the EPA Act for failing to comply with development consent. Although there was no actual physical harm to land as a result of the offence, there was environmental harm in relation to the impact on amenity and convenience to other residents in the locality resulting from the offence (at [13]). On state of mind, as a councillor elected to the prosecuting council the defendant would or ought to have known the gravity of his actions and that his actions were not legal (at [16]). The defendant's actions were deliberate (at [17]). The offence was of moderate objective seriousness (at [30]). The defendant was fined $43,000 (at [40]).
In Willoughby Council v Livbuild Pty Ltd the defendant pleaded guilty to two offences against former s 76A(1) of the EPA Act for unauthorised building works. The first offence was work on the foreshore area of the property including building retaining walls and staircases. The environmental harm caused by the commission of the foreshore works was most appropriately characterised as moderate (at [82]). The second offence was internal unauthorised works to inter alia construct a home theatre in the residential dwelling on the site. The environmental harm caused by the commission of the home theatre works was at the lower end of the spectrum of seriousness (at [89]). On state of mind, the offences were committed intentionally with culpability marginally mitigated by evidence to the effect that the defendant believed the necessary consents would be obtained (at [92]-[93]). The objective seriousness of the foreshore works was moderate and the home theatre works was low (at [100]-[101]). The defendant was fined $48,000 and $19,000 for the foreshore works and home theatre works respectively (at [142]).
In Alramon Pty Limited v City of Ryde Council the defendant pleaded guilty to one offence against former s 76A(1) of the EPA Act for carrying out development without first obtaining development consent or a CDC and one offence for failing to comply with a stop work order issued under former s 121B of the EPA Act. The offences caused foreseeable harm to the integrity of the planning process (at [60]). The penalties imposed in the Local Court of $35,000 and $60,000 for the offences respectively were confirmed (at [79]).
In Cumberland Council v Badaoui Habib the defendant pleaded guilty to two offences against former s 76A of the EPA Act for carrying out unauthorised building works. The harm caused by the offences went to the integrity of the planning scheme which lies at the lowest end of the spectrum of environmental harm (at [21]). On state of mind, the offences were premeditated, committed intentionally and were planned, controlled and coordinated (at [24]). The defendant continued works in the knowledge that the requisite development consent had not been obtained (at [28]). The offences were of moderate seriousness (at [29]). The defendant was fined $52,500 for each of the offences (at [54]).
The sentencing trends report handed up in the Local Court provides little assistance in the absence of any detail of the cases. The cases relied on by the Appellant's counsel are now more than 10 years old. More recent cases such as those relied on by the Council summarised above show higher penalties being imposed for similar offences and I have had regard to these in considering the appropriate penalty.