Ku-ring-gai Municipal Council v Kizana

29 July 2002 KU-RING-GAI MUNICIPAL COUNCIL Prosecutor v JOSEPH KIZANA Defendant Judgment 1 The defendant, Joseph Kizana, is charged that between 11 and 23 February 2001 at Turramurra he committed an offence under s 125 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") in that he did cause development (the erection of a two-storey residential addition) to be carried out for which development consent was required under the Ku-Ring-Gai Planning Scheme Ordinance ("KPSO"), without obtaining development consent, being a thing being forbidden to be done under s 76A(1) of the EP&A Act. 2 The premises are at 14 Princes Street, Turramurra ("the site"). They are owned by Mr and Mrs Moujalli. The defendant, Mr Kizana, has pleaded guilty to the offence. A plea of guilty carries with it an admission of all the elements of the offence (R v O'Neill [1979] 2 NSWLR 582). 3 Mr Kizana is unrepresented but he has agreed that the statement of facts prepared by the prosecutor is a correct statement of facts. I base the facts of this matter on that document and that document alone. 4 The site is within zone No 3(a) (Business Retail Services) under the KPSO. Under the KPSO development for the purpose of a dwelling-house is prohibited. However, development for the purpose of a dwelling-house used in conjunction with purposes permitted in the zone can be carried out, but only with development consent. The position, then, is that either the two-storey addition to the shop at the site was prohibited, or, if used in conjunction with a purpose permitted in the zone, was a development which required development consent.

5 In June 1998 the owner of the site lodged a development application for the erection of a two-storey dwelling at the rear of the existing shop. That development application was determined on 16 April 1999 by the refusal of development consent. 6 In or before February 2001 the defendant, Mr Kizana, prepared and provided to Mr Moujalli a plan dated January 2000. That plan bears three relevant stamps. The first stamp gives a date, "15 Feb", and the number, "DA 9899/101". The second stamp contains a warning about submission of the plans to Sydney Water and the existence of underground and overhead cables. The third stamp states: "Approved subject to conditions of DA 9899/101". There is no date on this stamp, but there is a signature which is illegible, and this is followed by the words "for General Manager". 7 None of those stamps were legitimate. None of them was a council stamp. The signature was not the signature of the council's general manager, nor of any person signing on the general manager's behalf. The defendant knew at all material times that those stamps and signatures purported to indicate council consent, but that they were a forgery and that no development consent had been granted for the development proposed in the plan. 8 Between 11 and 23 February 2001, a two-storey dwelling-house on the site was erected. What was erected was similar to that proposed in the plan to which I have referred, but there were departures from that plan. I do not need to go into the detail of those departures but there were many of them and they were of some significance. The dwelling-house was similar to that which had been proposed in the development application which the council had previously refused. 9 The council was alerted to the building works on 13 February 2001 by a complaint from a neighbour. The council then began an investigation. Initially, Mr Kizana told the council's officer that the owners had council approval and that there was a plan which indicated council's approval. He said that he was Mr Moujalli's designer and building supervisor and he said he was responsible for constructing the building in accordance with the approval. That statement was made on 23 February 2001. Three days later the defendant telephoned the council's investigating officer and frankly admitted that there was no approval and that he had taken advice as to what could be done in the circumstances. 10 The approach to sentencing in this case has caused me some concern because of the existence of the forged plan. There are three relevant circumstances, firstly, the preparation of a plan which contained stamps and signatures and material on it which were forgeries; secondly, the presentation of that plan to the owners, and thirdly, the representation to the council that the plan was an approved plan. I take those three circumstances into account as constituting the reason why the building has been built without council approval. And they support a conclusion that the breach of the law, being that of carrying out development without consent in circumstances where consent was required, is a serious breach. The breach was blatant. The defendant knew that there was no council consent. There had been a prior refusal of a similar proposed development. The defendant knew that there was no approved plan and yet he presented a plan prepared by him containing forged stamps and signatures to both the owners and to the council officer as an approved plan. These are the antecedent circumstances to this offence. 11 The defendant, Mr Kizana, has not been charged with forgery. Nevertheless a building has been built by reason of his conduct, and that renders his conduct a matter of serious criminality. I do not take into account the circumstance of forgery as a circumstance constituting a different or more serious offence (R v De Simoni (1981) 147 CLR 383. I simply take it into account for the reasons that I have stated, namely, as explaining the circumstances of the offence with which the defendant is charged, and the reason why the offence of carrying out development without development consent when it was required is in this case a serious offence. 12 I have, however, taken various other matters into account in mitigation of the penalty which the Court might otherwise impose. The first, and the most significant of those mitigating factors, is that there is no evidence of significant environmental harm. A building has been built which should not be there. No doubt that has an impact upon the amenity of neighbours, although there is no evidence as to the extent of that impact. But this is not a case of significant, irreparable environmental harm. 13 The next matter I take into account is Mr Kizana's health. He has not been present on previous occasions when the case was ready for hearing because, as he explained from the bar table, he has suffered coronary heart disease. He has been hospitalised. I take that into account as part of his circumstances. 14 Mr Kizana has furnished some degree of co-operation to the prosecutor, especially in the last few days leading up to the hearing and I take that into account. I also take into account his contrition. He explained from the bar table that he was sorry. He said that he wished that this whole matter had never happened. He said that he was under some pressure from Mr Moujalli at the time and that he was motivated by his understanding that what was proposed to be built was a development which would ultimately comply with council's requirements. 15 I also take into account the fact that Mr Kizana pleaded guilty at a very early stage in the proceedings (see R v Thomson (2000) 49 NSWLR 383). The fact is that although Mr Kizana did not appear on a couple of occasions when the matter was ready for hearing, he has not put obstacles in the way of the prosecution. The prosecutor has not had many hurdles to overcome in presenting its case, and that is to some extent a result of Mr Kizana's conduct. 16 Mr Wright, appearing for the prosecutor, took the Court to the decision of the Court of Appeal in Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683. That is a case which is mentioned in nearly every environmental prosecution in this Court because it sets out the principles which a trial judge should take into account in determining the appropriate sentence. On p 698 Kirby P, as he then was, said: The task of a court is to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the scale of penalty set by the legislature from zero to the maximum. 17 In this case the maximum penalty is $1.1 million. That is a very significant amount. It represents, as Kirby P said, the public expression by parliament of the seriousness of the offence in the worst possible case. This is not the worst possible case. But it is a serious case, and it seems to me, taking into account the mitigating factors I have set out, and in particular a deduction for an early plea of guilty, that the amount of the fine which I should impose upon the defendant is the amount of $75,000. 18 I have had no submissions on this matter but I think it is appropriate that I order the defendant to pay the costs of the prosecutor. 19 I propose to retain on file the two exhibits, being the statement of agreed facts and the copy of the plan. 20 Mr Kizana, you are convicted of the offence with which you are charged. 21 I impose upon you a fine in the amount of $75,000 to be paid to the Registrar of the Court within one month from today's date. 22 I order you to pay the costs of the defendant as agreed or as assessed pursuant to the relevant provisions of the Land and Environment Court Act 1979.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.