Holroyd City Council v El-Khouri

Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2006

CASES CITED: Gunes v Regina [2007] NSWCCA 242 Thorneloe v Filipowski (2001) 52 NSWLR 60

PROSECUTOR Mr J Johnson SOLICITORS McKees Solicitors LEGAL REPRESENTATIVES: DEFENDANT Mr Avni Djemal SOLICITORS Maclarens Lawyers

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT Jagot J: 1 These are my reasons for sentence in these proceedings. The defendant, Marlo El-Khouri, is charged with six offences against the Environmental Planning and Assessment Act 1979 and Environmental Planning and Assessment Regulation 2006 as follows: (a) Proceedings 50037 of 2007: - a breach of the Environmental Planning and Assessment Act by carrying out development other than in accordance with development consent.

(b) Proceedings 50042 to 50045 of 2007: - a breach of the Environmental Planning and Assessment Regulation by failing to notify the principal certifying authority (namely, the Council) of four critical stage inspections as required.

(c) Proceedings 50046 of 2007: - a breach of the Environmental Planning and Assessment Act by occupying a development without having obtained an occupation certificate.

2 The prosecutor and defendant agree that the maximum penalty for the offences the subject of proceedings 50037 and 50046 of 2007 is $1.1 million on account of each offence. The maximum penalty for proceedings 50042 to 50045 of 2007 is $110,000 on account of each offence.

3 The offences arise out of the same set of facts and relate to the construction of a new home for the defendant and her family (that is, her husband and four children) at 7 Grant Crescent, Merrylands.

4 Relevant facts about the dealings between the defendant and the Council were agreed. The defendant also gave evidence or her personal circumstances leading up to the offences and at present.

5 The defendant owns the land with her husband. The defendant married her husband when she was 16½ years old. Her husband was then 24. Since then, the defendant has had four children. Her life has been as a homemaker other than for relatively short periods before her third child was born. The defendant's husband is an air conditioning mechanic.

6 Although her husband had been responsible for developing four other properties, the defendant wanted to be involved in their new family home. She took an owner-builder's course and registered as the owner-builder for the development of a two-storey family home on the property.

7 The Council was appointed as the principal certifying authority and construction then commenced. The defendant had no experience as an owner-builder, although she had done the compulsory course and generally understood that she was subject to obligations to comply with the development consent which she had obtained. Her husband, as I have said, had experience in developing other properties.

8 Although the defendant was the owner-builder with respect to the defendant, in truth the defendant had little involvement with, and even less control over, the building works. Her husband substantially controlled the building works and was on site most days. During the building works four of the inspections required were omitted (as the building works continued beyond those stages without the inspections).

9 When, in July 2006, the defendant became aware of problems with the Council about the development not complying with the development consent, she attempted to resolve the issues with her husband. This led to arguments because her husband had lost his job, the family were staying in rented premises, and were subject to cash flow difficulties.

10 The defendant wanted to comply with the Council's requirements to stop work but her husband insisted that they had to keep on building because he knew what he was doing and was pressured by cash flow problems. The defendant repeatedly tried to resolve the Council's concerns with her husband. Her worries about the Council led to further family arguments. The defendant felt conflicted because she wanted to comply with the Council's directions but her husband insisted on keeping the contractors working on site.

11 These difficulties lasted about two months in all. Ultimately, the building work did stop in late September 2006. Thereafter, the defendant took steps to obtain approval to modify the consent.

12 The defendant and her family moved into the house in May 2007 because they could no longer afford to rent. However they did not have an occupation certificate. The Council will not issue the occupation certificate until the building works comply with the consent as modified. The Council approved the modification on 8 February 2008.

13 It is agreed that if building works are now completed in accordance with the modification approval there will be no environmental amenity issues of concern with the development. The modification approval, I note, required certain additional changes to the building over and above the unauthorised building works.

14 The building works in breach of the consent involved the following: Ground Floor Level (a) The sill height of the window on the northern wall in the formal dining room is 0.15 metres lower than approved (building 1.45 metres above floor level; approved 1.6 metres above floor level).

(b) The sill height of the window on the northern wall in the formal lounge room is 0.4 metres lower than approved (built 1.6 metres above floor level; approved 2 metres above floor level).

(c) Additional window on the northern wall of the dining and lounge area with sill height of 1.6 metres (not shown on the approved plan).

(d) The kitchen wall encroached into the barbeque area by about 2 metres, resulting in a large open meals area and additional enclosed floor space.

(e) Patio adjoining the double garage constructed as an enclosed space (and was approved as an open patio area). This resulted in a larger garage area.

(f) Internal walls constructed in the rear corner of the rumpus room (not shown on the approved plans).

(g) Water and waste pipes installed inside the internal walls in the rear corner of the rumpus room, which could become a bathroom (not shown on the approved plans).

(h) Water pipes installed in the corner of the rumpus room adjoining the new internal wall, which could be utilized for a sink (not shown on the approved plans). First Floor Level (i) Additional room constructed on the north-western corner of the first floor, which appears to be a bedroom, including a window on the western wall of that room with a sill height of 1.3 metres (not shown on the approved plans).

(j) Window in bedroom 1 constructed with a sill height of 0.9 metres above floor level and of transparent glass (not obscure glass as shown on the approved plans).

(k) Bedroom 1 and 2 constructed closer to the northern boundary.

(l) Terrace area at the front of the house above the garage has been partially tiled, in the area where the approved planter box is to be located (and has not been constructed as shown on the approved plans).

(m) Roof area on southern side of the first floor adjoining the terrace is treated with a water proof membrane, accessible from the terrace and not constructed as a flat roof (as shown on the approved plans).

(n) Roof area on the northern side of the first floor is treated with waterproof membrane, accessible from the terrace and not constructed as a flat roof (as shown on the approved plans).

15 If left unrectified these unauthorised works would have had potential adverse privacy impacts on one neighbour. The approved modifications effectively address those potential impacts.

16 From the defendant's evidence it is apparent that the defendant, despite having accepted the responsibility as an owner-builder, in fact had no real control over the building works. Specifically, the defendant's husband decided to build the extra bedroom without consulting her in any way. He made all of the decisions about the building of the house. The defendant mainly focused on selecting the interior items and finishes at this time.

17 The defendant agreed to be the owner-builder because she wanted to have some involvement in the family's dream home. When she found out about the breaches the defendant wanted to resolve the issues with the Council, including by stopping work, but was unsuccessful in doing so until September 2006.

18 The defendant has been charged with the six offences to which I have referred. She entered guilty pleas to each offence at the first practical opportunity. The defendant also gave evidence today. It is obvious from her evidence that while the defendant accepted responsibilities as an owner-builder the defendant was placed in a very difficult position by her family relationships. I am satisfied that the defendant never intended to do the wrong thing. Moreover, when she found out that they were building in breach of the consent, the defendant did all she could practically do (given the reality of her marital relationship) to get the building work to cease.

19 The defendant was placed in a position of extreme difficulty by her acceptance of responsibilities as owner-builder and her desire to do the right thing under the development consent, as compared to her almost total lack of practical control over the day-to-day building work. As I have said, ultimately, the work did cease some two months after the defendant became aware of the breaches. Further, and as noted, the relevant modification approval is now in place to enable the breaches to be regularised.

20 The defendant quite properly accepted that breaches of development consents are inherently serious, as they tend to undermine the planning system. However the defendant's counsel rightly stressed that objective criminality must be assessed by looking at the defendant's individual circumstances. The defendant is not her husband. A marriage relationship is not like an employer/employee relationship. Ideas of vicarious liability are misplaced on the facts of this case. The defendant in truth had no practical control over her husband's actions. She was placed in a position of conflict that she did her best to resolve. As the New South Wales Court of Criminal Appeal emphasised in Gunes v Regina [2007] NSWCCA 242 at [50] it is important not to confuse the criminality of another person with that of a defendant.

21 I accept the defendant's submissions. The unchallenged evidence about the defendant's relationship with her husband leaves no real room for doubt that, while the breaches of the planning laws which occurred in this case were themselves serious, the defendant's own conduct was of a very low order of criminality indeed. The defendant has pleaded guilty to all offences (and the offences themselves are serious) but consistent with the reasoning in Gunes sentence is to be passed on the defendant having regard to the defendant's own extremely limited involvement in those offences. That this must be so is evident from the provisions of the Crimes (Sentencing Procedure) Act 1999, the objects of which are in s 3A. It would be wrong to sentence the defendant as if such a sentence were somehow being imposed upon her husband. I also accept the submission of the defendant's counsel that, while considerations of general deterrence are always relevant to offences of breaches of planning laws, not every case is an appropriate vehicle to achieve a general deterrence objective. The facts of this case are very unusual, as I have attempted to identify.

22 Other considerations are of relevance. The defendant has led an unblemished life. The defendant is a person of good character. Character references attest to her significant and valuable contributions to the community. She is most unlikely to re-offend. I accept that the defendant is patently contrite for her involvement in the offences even accepting how limited that involvement was.

23 It is also relevant that, ultimately, the defendant's object of doing the right thing was achieved. The modification application was lodged and approved. The breaches of the development consent can be effectively regularised. The omitted inspections are an irretrievable fact but none of the evidence supports an inference that any ongoing harm has resulted as a result.

24 Rectification of the occupation certificate breach is not possible until the building works in accordance with the modified approval are completed, but again, nothing suggests on the evidence any ongoing difficulty in that regard.

25 The defendant's husband owns six rental properties. Of those, the defendant has a half interest in one property and a five per cent interest in another. Further, since 1 July 2007, she has also received the rental income from one of those properties into her own account and a Centrelink parenting allowance. The money the defendant receives is effectively all used for housekeeping purposes. Her husband otherwise pays all major expenses. Although I accept the defendant's counsel's submission that it is the defendant's means to pay that is relevant, the links between the defendant's financial arrangements and those of her husband make it impossible to draw any particular conclusion about the defendant's means to pay. I consider it of far greater significance that the prosecutor has notified the defendant that the prosecutor's legal costs will involve potentially a substantial claim, some $68,000 (although in response to questions I raised, the parties have agreed that in all of the circumstances I should make orders fixing the costs recoverable but providing the parties with a further opportunity to be heard about those costs). Accordingly, it is not clear where the ultimate issue of costs will end up other than to say that it appears likely that some substantial sum will be involved.

26 I have considered the other decisions referred to by the prosecutor. For the reasons I have given this case involves very different facts. In particular, the defendant's conduct involved very low elements of criminality to which I have referred.

27 It is true that the maximum penalties reflect the seriousness of offences against the Environmental Planning and Assessment Act and Regulation. The maximum penalty, particularly that of $1.1 million for breaches of s 76A of the Act, is consistent with the vast range of possible circumstances that the section covers.

28 Having regard to the extraordinarily unusual and difficult circumstances in which the defendant was placed in this matter, it is relevant to ask what practically the defendant could have done to prevent the commission of the offences. This is a relevant consideration under s 10 of the Crimes (Sentencing Procedure) Act even for strict liability offences (Thorneloe v Filipowski (2001) 52 NSWLR 60). Section 10(1) provides that without proceeding to conviction a court that finds a person guilty of an offence may make any one of the orders set out in (a) to (c) including an order directing that the relevant charge be dismissed. Under subs (3) in deciding whether to make any such order the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition;

(c) the extenuating circumstances in which the offence was committed;

(d) any other matter that the court thinks proper to consider.

29 Having considered the particular circumstances of this case I requested further submissions from the parties on s 10. The prosecutor submitted that it was inappropriate to apply s 10 to the facts of this case. The prosecutor pointed out that s 10 is rarely used in this Court due to the nature of environmental offences and the requirement for general deterrence. The prosecutor observed that a person in the defendant's position, who accepted the role of owner-builder, cannot then abdicate his or her responsibilities. The defendant, for example, did not inform the Council that she no longer wished to be the owner-builder when the difficulties arose. Nor did she inform the Council that in reality she had no control over the building works. Instead, the defendant forwarded a detailed letter to the Council on 22 January 2007, a letter which the prosecutor said did not display contrition at that time at least.

30 The defendant submitted that extenuating circumstances relevant to s 10 include the defendant's state of mind. The objective circumstances of these offences were not such as to put the defendant outside s 10. Further, to say that the defendant could have just ceased to be the owner-builder did not take account of the real situation in which the defendant found herself.

31 I accept the defendant's submissions. I do not think the letter of 22 January 2007 is inconsistent with the fundamental thrust of the defendant's affidavit, that the defendant was caught between her own desire to do the right thing and the actions of her husband. Further, it is difficult to accept that the things the prosecutor identified as possible for the defendant to have done would have really been of any assistance.

32 This is, as I have said, a very unusual case. The defendant has an otherwise unblemished record. She had no experience as an owner-builder. She did put herself forward as and accepted the role of owner-builder when in reality she had no control over the building process. When things went wrong the defendant tried to sort the problems out rather than merely withdrawing from the difficulties that had been created by the conduct of her husband.

33 I accept that the Court coming to sentence now understands far more about the true circumstances of the offences, particularly as they involve the defendant, than the Council might have known at the time or even when it decided to institute these proceedings against the defendant. Being so aware, however, those circumstances now must be taken into account and properly reflected in the exercise of the sentencing discretion.

34 The offences themselves are not trivial but the defendant's criminality is very low. I have referred at some length to the extenuating circumstances. In my view, they make this one of those rare cases where justice does call for the application of s 10 and the dismissal of the charges against the defendant.

35 Accordingly, in each of the proceedings I find the offence proved and, pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act and without proceeding to conviction, I order that each charge be dismissed.

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