(2006) 145 LGERA 189
Hawkesbury City Council v Johnson
Hawkesbury City Council v Johnson Property Group Pty Limited (No 2) [2009] NSWLEC 6
Hili v The Queen
Jones v The Queen [2010] HCA 45
Source
Original judgment source is linked above.
Catchwords
(2006) 145 LGERA 189
Hawkesbury City Council v JohnsonHawkesbury City Council v Johnson Property Group Pty Limited (No 2) [2009] NSWLEC 6
Hili v The QueenJones v The Queen [2010] HCA 45
Judgment (27 paragraphs)
[1]
Solicitors:
Hones La Hood (Prosecutor)
File Number(s): 50757 of 2012
[2]
Judgment
The Court is sentencing Maller Holdings Pty Limited (the Defendant) for the commission of an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act) for a contravention of s 76B(1) of the EPA Act for the carrying out of development prohibited by the Liverpool Local Environmental Plan 2008 (the LEP). The charge period specified in the amended summons dated 23 November 2012 was from about June 2010 and continuing to about 20 June 2012.
The Defendant is charged with the offence that the Defendant used land known as 17 Manning Street, Warwick Farm (the land) for the purpose of a horse transport business, a prohibited use under the relevant planning instrument. The nature and factual characteristics of that use were the subject of this Court's findings in Liverpool City Council v Maller Holdings Pty Ltd [2013] NSWLEC 154 (Maller (No 1)) at [98]-[127]. In Maller (No 1) I found the Defendant not guilty on the basis of Liverpool City Council (the Prosecutor) being unable to establish the fourth element of the offence. On appeal the Court of Criminal Appeal overturned that finding in Liverpool City Council v Maller Holdings Pty Ltd trading as Sydney Horse Transport [2014] NSWCCA 299, holding that the use of the land by the Defendant as a "horse transport business" was not rendered lawful by the historic consents permitting the land to be used for the purpose of stables. Consequently, the fourth element of the offence was established by the Prosecutor, and I found all the elements of the offence were proven on 18 March 2015. The Defendant is guilty of the offence.
The Defendant did not appear at the expedited sentencing hearing and was not represented. Its solicitor previously on the record filed a notice of ceasing to act on 23 March 2015. That solicitor represented the Defendant at the hearing of the Prosecutor's application for expedition of the sentence hearing on 18 and 19 March 2015, and I understand he advised the Defendant's sole director and the administrator of the Defendant of these proceedings before ceasing to act. The Defendant was served with the affidavits to be relied on by the Prosecutor at this hearing, as confirmed by the affidavit of Mr Hones solicitor sworn 31 March 2015 and read. Mr Hones annexed to his affidavit, among other things, letters of service sent to the Defendant's then solicitor, the administrator of the Defendant, on Mrs Maley, the sole director of the Defendant, and on the Defendant at its registered office. I resolved at the outset of this expedited sentencing hearing that it was appropriate to proceed ex parte.
The purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the CSP Act) as follows:
3A Purposes of sentencing
The purposes for which a court may impose a sentence on an offender are as follows:
(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.
All sub-paragraphs of s 3A are applicable in the circumstances of this case.
[3]
Background facts
As submitted by the Prosecutor in these proceedings and as identified in Maller (No 1) during the charge period the land was zoned R2 Low Density Residential under the LEP. The zoning table with respect to the R2 Low Density Development Zone under cl 2.3 of the LEP, provides as follows (omitting zone objectives):
Zone R2 Low Density Residential
2 Permitted without consent
Home-based child care; Home occupations
3 Permitted with consent
Attached dwellings; Bed and breakfast accommodation; Boarding houses; Building identification signs; Business identification signs; Child care centres; Community facilities; Dwelling houses; Educational establishments; Environmental facilities; Environmental protection works; Exhibition homes; Exhibition villages; Flood mitigation works; Group homes; Health consulting rooms; Home businesses; Home industries; Places of public worship; Recreation areas; Respite day care centres; Roads; Secondary dwellings; Semi-detached dwellings
4 Prohibited
Any development not specified in item 2 or 3
In the R2 Low Density Residential Zone, pursuant to Item 4 of the Land Use Table, development for any purpose other than for a purpose listed as being permitted without consent (Item 2 of the Land Use Table) or permitted with consent (Item 3 of the Land Use Table) is prohibited. That prohibition is subject to cl 16 of the LEP, which provided that in respect of certain land east of the rail line at Warwick Farm (being an area of land which included the land) development for the purposes of an "animal boarding or training establishment" or "farm buildings" or "veterinary hospitals" is permitted with consent.
The use of the land by the Defendant during the charge period for the purposes of a horse transport business may be characterised for the purposes of the defined categories in the LEP, as a "transport depot" or a "truck depot" or a "freight transport facility". That use was a prohibited use under that LEP pursuant to the Item 4 of the Land Use Table and it was not a use which was permitted with consent under cl 16 of the LEP. Throughout the charge period, the Defendant was the owner of the registered businesses "Sydney Horse Transport" and "Brisbane Horse Transport". During that same period, Mr Maley was the sole, director, secretary and shareholder of the Defendant. Just prior to the occupation of the land by the Defendant the land, was purchased by two companies: ACM Corporation Pty Ltd and JLMJ Investments Pty Ltd. Throughout the charge period Mr Maley was the sole director, secretary and shareholder of ACM Corporation Pty Ltd.
The evidence most relevant to this sentence hearing was considered in Maller (No 1) in relation to the third element of the offence at [98]-[112]. Paragraph 112 stated:
112 Development carried out by the Defendant during the charge period includes:
(1) the demolition or removal of the garage which was located between the dwelling house and the boundary of Mrs O'Neill's land (which can be seen in the Google Street View image taken prior to the charge period when the property was for sale in the street view and aerial images comprising exhibit A; affidavit of Mrs Adams at [13]);
(2) the construction of a concrete driveway where the garage used to be situated providing vehicular access from Manning Street to the rear of the property adjacent to Mrs O'Neill's boundary (exhibit A);
(3) the removal of the large tree and the grass or permeable areas in the rear section of the property (affidavit of Mrs Adams at [13]; affidavit of Mrs O'Neill at [13]);
(4) the removal of the sand roll, horse walking machine and some feed rooms from the rear section of the property (Mrs Adams at [13]);
(5) the concreting of the entirety of the property not otherwise having buildings or structures on it (affidavit of Mr Leemon at [3]; Mrs Adams at [13]; Mr Jauncey at [18]);
(6) the erection of traffic control bollards located on the rear and sides of the concreted hard stand area (an example is visible in the two photos on page 8 of Annexure A to the supplementary affidavit of Mr Elkhoury);
(7) the erection of vehicular gates on each of the driveways (Mrs Adams affidavit at [13]);
(8) the erection of colourbond boundary fences with a height in excess of 2.5 metres (Mr Jauncey affidavit at [18(l)]);
(9) the conversion of the dwelling house into an office (Mr Jauncey affidavit at [18(a)]; [24]; [25]);
(10) the demolition of the "boy's room" which abutted the western side of the dwelling house (visible as a pale oblong shape on the aerial photo taken prior to the Defendant's occupation which forms part of exhibit A);
(11) the installation of the demountable building and its fit out to make it suitable as a rest facility.
[4]
Objective seriousness
Numerous cases have identified a number of factors relevant to the determination of objective seriousness. The Council of the Municipality of Kiama v Pacific Real Estate (Warilla) Pty Limited [2009] NSWLEC 191 identifies at [67] the following relevant factors:
1. the maximum penalty for the offence;
2. the objective harmfulness of the defendant's actions;
3. the defendant's state of mind in committing the offence;
4. the defendant's reasons for committing the offence;
5. the foreseeability of risk of harm to the environment;
6. the practical measures to avoid harm to the environment; and
7. the defendant's control over the causes of harm to the environment.
See also Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [110], cited in Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited (No 2) [2009] NSWLEC 6 at [36]-[38]. This is a useful compendium of matters I will consider to which I also add upholding of the statutory scheme for development control in NSW.
[5]
Maximum penalty
The maximum penalty for the commission of the offence is $1.1 million with a further provision for a daily penalty not exceeding $110,000 per day during any period in which the offence continues: s 126 EPA Act. The maximum penalty is the expression by the New South Wales Parliament of the seriousness of the offence: for example, Camilleri Stock Feeds Pty Ltd v Environmental Protection Authority (1993) 32 NSWLR 683 at 698.
I accept the Prosecutor's submissions that so far as one may discern the objective seriousness from the maximum penalty prescribed by the legislature, the significance of the $1.1 million maximum penalty for offences against s 125(1) of the EPA Act has been expressly recognised. Moreover, the maximum continuing daily penalty of $110,000 per day is an expression by the New South Wales Parliament of the seriousness with which the Parliament views the continuation of the commission of such an offence.
[6]
Statutory scheme important
This offence arises under the EPA Act which is directed to the orderly development and use of land by everybody in NSW, areas of activity in which a very large number of people are engaged at all times throughout the State. In Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 Preston CJ said at [46]:
[46] There is a need for the upholding of the integrity of the system of planning and development control. This system depends on persons taking steps to obey the law by ascertaining when development consent is required and then obtaining development consent before carrying out development: Byron Shire Council v Fletcher (2005) 143 LGERA 155 at [60]-[61]; Cameron v Eurobodalla Shire Council at [72]-[80]; Byers v Leichhardt Municipal Council [2006] NSWLEC 82 at [83], [85]; Gittany Constructions Pty Ltd v Sutherland Shire Council at [104]; and Garrett v Freeman (No. 5) (2009) 164 LGERA 287 at [58]. Development must be carried out in accordance with the terms of the development consent obtained: Gittany Constructions Pty Ltd v Sutherland Shire Council at [105].
[7]
Evidence
In this sentence hearing, the Prosecutor relied on a number of affidavits read at trial. These are:
1. The affidavit of Mrs O'Neill sworn 12 July 2012. Mrs O'Neill is the owner of the property neighbouring the land and gives evidence of the impact on her of the Defendant's development and use of the land.
2. The affidavit of Mrs Adams sworn 12 July 2012. Mrs Adams resides in Manning Street, close by and almost opposite the land.
3. The supplementary affidavit of Mr Elkhoury council compliance officer sworn 3 May 2013. Mr Elkhoury annexed photographs he took on 18 August 2011 during an inspection of the land to his affidavit.
4. The affidavit of Mr Jauncey council building inspector sworn 12 July 2012. Mr Jauncey's affidavit exhibited the Applicant's Bundle of Documents that became exhibit B in the trial hearing.
The Prosecutor read in part a further affidavit of Mrs O'Neill sworn 20 March 2015 which states that, during the charge period, she had been rudely gestured at by truck yard drivers and other people working in the rear yard of the land. Ms O'Neill has been informed by a psychologist that she suffers from anxiety for which she requires ongoing treatment, a disorder that she did not have prior to Sydney Horse Transport operating from Manning Street.
[8]
Impact of the offence on neighbours (environmental impact of the offence)
The impact of the prohibited use of the land by the Defendant during the charge period on neighbours is identified clearly from the evidence of Mrs O'Neill and Mrs Adams.
[9]
The evidence of Mrs O'Neill
In Maller (No 1), the Court heard evidence from the occupant of the dwelling house adjoining the land, Mrs O'Neill, who has occupied her house for the last 50 years: affidavit dated 12 July 2012 (subject to sections not read or admitted into evidence as recorded in the transcript of trial at pp 88-91 and oral evidence (transcript at pp 92-125)).
The Court also saw video footage, which became exhibit C in the trial hearing, taken by Mrs O'Neill from rooms in her house during the period from about September 2011 through to 9 June 2012 showing activities and things in the rear section of the land during the period in which it was occupied by the Defendant: exhibit C.
The Prosecutor also relies for the purposes of sentence on the further affidavit of Mrs O'Neill, sworn 20 March 2015 read in part.
At the time she swore her principal affidavit on 12 July 2012, Mrs O'Neill had lived next door to the land for about 50 years. Her partner died in about 1991 and she was living alone in her house throughout the charge period.
Mrs O'Neill's evidence was that before the Defendant took up occupation of the land, a series of horse trainers over time lived on the land and trained horses at the Warwick Farm Racecourse. Each of the horse trainers had a number of horses permanently stabled in stables located at the rear of the land and, each morning, these horses were walked over to the Warwick Farm Racecourse for track work.
The Court heard evidence from Mrs O'Neill that, in about June of 2010, she met Mr Maley, who told her: "I am the owner of Sydney Horse Transport. We transport horses all over the country. From Brisbane to Melbourne via Sydney and even overseas to New Zealand".
Mrs O'Neill deposed that, in the period from about June 2010 until the date of her first affidavit (12 July 2012), she saw or heard numerous activities associated with the carrying on of the horse transport business, including activities involving the movement of large transport trucks and the washing and servicing of those trucks on the land. Mrs O'Neill particularises those activities in her principal affidavit at par 6.
I accept the Prosecutor's submissions that the intensity of the unlawful use of the land by the Defendant and its impact on Mrs O'Neill emerges clearly from:
1. the video footage taken by Mrs O'Neill during the charge period (exhibit C);
2. the accompanying audio recording by Mrs O'Neill of her description of what was occurring when the video footage was being taken (exhibit C);
3. Mrs O'Neill's oral evidence in relation to the video footage (transcript at pp 92-125); and
4. Mrs O' Neill's further affidavit of 20 March 2015.
This evidence demonstrates that the commission of the offence by the Defendant over a lengthy period has had a profound, adverse effect on a vulnerable, elderly woman. The land is located on low density residential land adjoining Mrs O'Neill's land. In order to carry out the use, the Defendant removed all of the grass and vegetation previously on the land and put down concrete aprons from boundary to boundary. The large transport trucks drove up and down a driveway immediately adjoining her house and below her bedroom. The activities associated with the unlawful use, including the frequent washing out of the trucks were visible and audible to Mrs O'Neill. A very high fence much greater than 2.5 m was placed on her boundary without her consent.
The washing down and hosing out of the trucks on weekends and the engine noise from the trucks disturbed Mrs O'Neill's peace and quiet both at night times and during the days, particularly on weekends.
As a result of the unlawful use of the land by the Defendant, Mrs O'Neill has been regularly woken up at all hours of the night by the delivery of horses, because the trucks travel up the side of her house and their lights shine in her windows; she hears the noise of the trucks' engines in her bedroom as well as the noise made by the horses when they are taken out of the trucks.
The unlawful land use has also involved intrusive and offensive conduct by persons using the land, namely the use of rude gestures to Mrs O'Neill, and, on one occasion, the exposure of a man's buttocks to her, while she has been present, alone, in her own home. Mrs O' Neill now suffers anxiety where, previously, she never did. She has consulted a psychologist to attempt to deal with these conditions. The Court is satisfied on the evidence of Mrs O'Neill that the commission of the offence by the Defendant has been a substantial causal factor in the experience of these symptoms by Mrs O'Neill.
At a particular point during the cross-examination of Mrs O'Neill at trial on 7 May 2013, the degree of impact on her of the Defendant's unlawful use of the land and the frustration which was being experienced by Mrs O'Neill as a consequence of that unlawful land use emerged clearly and in a manner which was quite candid and not self-serving. The exchange in question is recorded in the transcript at p 114, line 46 to p 116, line 24. During that exchange, Mrs O'Neill expressed her own embarrassment and "disgust" about the way in which she had been speaking on the audio of exhibit C and, at one point, she said (transcript p 115, lines 36 - 39):
… you can tell from those videos how stressed I've become, even to the point that I went to see a psychologist. And you can check on me, I'm 73 and up until that stage I've never taken a nerve tablet in my life, but I needed help.
[10]
The evidence of Mrs Adams
Mrs Adams owns and lives in Manning Street close to the land. On the basis of her affidavit of 12 July 2012 (par 15-18) Mrs Adams has been seriously affected by the unlawful use of the land by the Defendant. The unlawful use has interfered with her peace and quiet and has caused her significant sleep disturbance.
[11]
Objective harmfulness of the Defendant's actions
I accept the Prosecutor's submission that the offence was committed continuously over a lengthy period of about two years, during which period the impacts occasioned by the unlawful use continued on the neighbours. The commission of the offence caused serious harm in the form of the significant adverse effect on the amenity and well-being of Mrs O'Neill and, to a somewhat lesser degree, Mrs Adams, throughout that lengthy period.
[12]
The continued unlawful use despite the actions of the Prosecutor/Defendant's state of mind in committing the offence
On 23 August 2011, the Prosecutor issued to the Defendant notices of intention to issue orders under s 121B and s 121D of the EPA Act. One related to the removal of an unlawful building and related work, and one required the Defendant to cease the use of the premises for the purpose of a "horse transport depot" and to cease the use of the premises for the purpose of an "animal training and boarding establishment" on the basis that the former use was prohibited and the latter required development consent, which had not been obtained (exhibit B, tab 17-19).
By letter dated 15 September 2011, a firm called APP Consulting Pty Limited made representations to the Council in relation to the proposed orders on behalf of the Defendant (exhibit B, tab 26). In that letter APP Consulting states that:
Investigations we have undertaken to date would suggest that aspects of the site operations, which have been carried out on site for many years and are representative of other operations in the locality and on adjoining land, are authorised land uses or may hold existing use rights and are capable of continuing without any further approvals being required.
On 12 October 2011, APP Consulting wrote again to the Prosecutor following a meeting between representatives of the Defendant and the Prosecutor held on 10 October 2011 (exhibit B, tab 27). Included in this letter were written undertakings to the Prosecutor provided on behalf of the Defendant to APP Consulting, including an undertaking in these terms:
Undertaking 1
The use of the site as a Horse Transport Depot, being the use of the site for the parking or servicing of motor powered or motor drawn vehicles used in connection with a horse freight transport undertaking will cease on or before 9 November 2011
In the same letter, the Defendant provided three other undertakings. Undertaking 2 specified a number of limitations which the Defendant said it would implement at the land including limiting the hours of operation. Undertakings 3 and 4 related to lodging a development application and building certificate applications on or before 16 November 2011 for the use of the site as an animal training and boarding establishment.
On 14 October 2011, the Prosecutor wrote to APP Consulting indicating that it had considered its letters of 15 September 2011 and 12 October 2011 and stated, inter alia, that all unauthorised activities relating to the use of the site as a transport depot were to cease immediately (exhibit B, tab 28).
APP Consulting replied by letter on the same day (14 October 2011) (exhibit B, tab 29) stating:
Council has directed that all activity relating to the use of the site as a horse transport depot is to cease immediately. This direction is neither reasonable nor practical. As discussed with Council officers on 10 October 2011 our client has existing commitments relating to the horse transport depot activities and will require time to discontinue that activity on site. It was in this context that undertakings 1 and 2 were given in our letter of 12 October 2011.
I am instructed to advise Council that our client is unable to cease the horse transport depot activities immediately and we understand that direction to mean today. However, I can advise that undertakings 1 and 2 given in our correspondence of 12 October 2011 will be met.
I note that the Prosecutor did not in fact send an order requiring cessation of the use as provided for under the EPA Act and ultimately commenced these proceedings in November 2012.
The Prosecutor submitted that despite the clear notification from it during the charge period from 23 August 2011 advising that the land use was unlawful and must cease, and despite the undertakings given on behalf of the Defendant that aspects of the use of the land for the purposes of a horse transport depot relating to parking and servicing of vehicles would cease and that the use would be better controlled, the unlawful use continued unabated for the remainder of the charge period up to about 20 June 2012. Without any explanation, the Defendant did not honour the undertakings which had been given on its behalf. This was submitted to reflect the Defendant's state of mind in committing the offence, an aggravating factor being that the Defendant was told by the regulator during the charge period that the use of the land should cease. Facts adverse to the Defendant on sentence must be proved beyond reasonable doubt. I accept the Prosecutor has done so and accept the Prosecutor's submissions above in that regard. The Defendant took a risk of carrying on the unlawful use to pursue commercial objectives despite knowing that according to the Prosecutor it was breaking the law. This behaviour is an aggravating factor for the period from 23 August 2011 when the Defendant was squarely on notice of the Prosecutor's position until the end of the charge period on 20 June 2012.
I note the submission of APP Consulting in its letter dated 15 September 2011 concerning investigations undertaken identifying possible authorised land uses and existing use rights (see above at par 33). As there is no evidence of any further action in relation to that being taken by the Defendant in the charge period or since as a means of regularising its activities on the land those statements can be given no weight in this sentencing exercise.
There is no evidence that the Defendant complied with any of its four undertakings given to the Prosecutor through its consultant APP Consulting in October 2011. In relation to undertaking 3, a development application was lodged with the Prosecutor in June 2012 (not by 16 November 2011) for an "animal and training establishment" which was refused on 19 December 2012 by the Prosecutor. A Class 1 appeal commenced on 16 January 2013 in this Court was discontinued.
From 23 August 2011 the Defendant was on notice of the Council's position that the use of the land for a horse transport depot was unlawful. It decided to carry out that use to pursue its commercial objectives despite knowing that the Council's position was that the Defendant was acting unlawfully.
[13]
Reasons for committing the offence
I accept the Prosecutor's submission that the Defendant was engaged in a business enterprise, namely a horse transport business. The unlawful use of the land was carried out to further that business. It was done for commercial gain. In its letter dated 14 October 2011 the APP Consulting identified the Defendant's existing commitments relating to horse transport depot activities to explain why the Defendant could not cease activities immediately (exhibit B, tab 29). However, commercial commitments are no excuse for offending.
[14]
Foreseeability of the risk of harm
I accept the Prosecutor's submission that it would have been readily foreseeable to any reasonable person in the position of the Defendant that its use of the land would adversely affect both Mrs O'Neill and other nearby occupants, such as Ms Adams.
[15]
Practicable measures to avoid harm
I accept the Prosecutor's submission that there is no evidence that the Defendant took any measures whatsoever to avoid or minimise the impact of its land use on the adjoining and nearby residents. The Court will infer that the Defendant took no such measures.
[16]
Defendant's control over causes
I accept the Prosecutor's submission that the Defendant had full control over the causes of the commission of the offence.
[17]
Section 21A of the Crimes (Sentencing Procedure) Act
The Prosecutor's submission that the injury, emotional harm, loss or damage caused by the offence was substantial, and thus, an aggravating feature of the offence, within the meaning of s 21A(2)(g) of the CSP Act is accepted. I also find that the offence was committed for financial gain: s 21A(2)(o) CSP Act.
[18]
Conclusion regarding objective seriousness
In all the circumstances, the offence is at the high to very high end on the spectrum of objective seriousness for offences of this type. This offence was a continuing offence committed over a period of about two years.
The Prosecutor and the Court are not aware of any other offence of unlawful development having come before this Court which has involved the degree of impact on adjoining/nearby residents as has been demonstrated in this case.
[19]
Mitigation
The only matter in mitigation the Prosecutor is aware of is that the Defendant has no prior convictions: s 21A(3)(g) CSP Act.
[20]
Specific deterrence
Having regard to the conduct of the Defendant and its state of mind, I accept the Prosecutor's submission that there is a compelling need for the Court's sentence to act as a specific deterrent.
[21]
General deterrence
The Court has repeatedly stated in the context of environmental and planning offences that the sentence must also deter an offender from committing a similar offence in the future, for example, The Council of the Municipality of Kiama v Pacific Real Estate (Warilla) Pty Limited [2009] NSWLEC 191 at [63]; Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [8].
Additionally, the sentence needs to operate as a powerful factor in preventing the commission of similar offences by persons who may be tempted to do so: Pacific Real Estate (Warilla) at [63]; Rae at [9]).
Lahood v Strathfield Council [2007] NSWLEC 714, which concerned development carried out without consent or in contravention of a consent, relevantly stated at [20]:
Critically the planning system as a whole would be rendered ineffective if developments were allowed to continue without or in contravention of development consents. In Keir v Sutherland Shire Council [2004] NSWLEC 754 the then Chief Judge of the court highlighted the particular need for general deterrence in relation to contraventions of development consents. Relevantly his Honour stated that the court must impose a penalty which is not only appropriate with respect to the actions of the offender, but also sends a strong warning to others who carry out development work that a breach of the law will be visited with significant financial consequences.
[22]
Consistency in sentencing
The Prosecutor referred to Council of the Municipality of Kiama v Furlong [2009] NSWLEC 139 at [35]-[40] and Ku-ring-gai Council v Abroon (No 3) [2012] NSWLEC 12 at [146]-[151] where the Court surveyed (at the time) relatively recent decisions of the Court in which persons had been convicted of offences against s 125(1) of the EPA Act involving the carrying out unlawful development.
Having regard to the length of time over which the subject offence continued, the circumstances in which it continued, including the Defendant's awareness that its conduct was considered by the Prosecutor to be unlawful, the demonstrated impact the commission of the offence had on Mrs O'Neill and Mrs Adams, and the absence of all but one mitigating factor, I agree with the Prosecutor that this offence is markedly more serious than any of the offences surveyed in those cases. In Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 the High Court (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) held at [54] that:
In Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [303]-[305], Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed of at [303], 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. As her Honour said at [303]: "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" at [304]. 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" at [304] (emphasis added). 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" at [304] citing Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 606 [59].
There is no relevant discernible pattern of sentencing to guide me in relation to an offence of this level of objective seriousness and Hili identifies that a history of sentencing in other cases does not limit my sentencing discretion.
[23]
Daily penalty not appropriate
The Prosecutor asked the Court to consider the imposition of a daily penalty for part of the period of the commission of the offence from 9 November 2011 to 20 June 2012 in addition to the single penalty provided for in the EPA Act. The maximum penalty would be approximately $24 million for the daily penalty component of any penalty for such a period.
Given the lengthy period of the offence over two years the imposition of a daily penalty is likely to result in a disproportionate overall penalty of many millions of dollars if a meaningful daily penalty is imposed. A more proportionate response is likely to result in a very minimal daily penalty which is also not desirable.
The Court will take into account, as a particular aggravating factor, the continuation of the offence over a two year period and in particular the period from 23 August 2011 to 20 June 2012 when the Defendant was on notice of the Prosecutor's view in the imposition of a single penalty
[24]
Capacity to pay
Section 6 of the Fines Act 1996 (NSW) states that in setting a penalty a court is required to consider such information regarding the means of the accused as is reasonably and practicably available to the court for its consideration. I am aware from the hearing on the Prosecutor's application for expedition of this sentence hearing on 18 and 19 March 2015 that the Defendant has entered into a Deed of Company Arrangement which was tendered on that occasion (exhibit A). That deed provides a mechanism for the payment of some of the Defendant's creditors from a fund of $15,000. The deed does not assist the Court in understanding in any detail the Defendant's financial affairs. The Defendant is not in liquidation. The evidence is "indefinite" to quote Environmental Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 at 353 cited in Environmental Protection Authority v Coe Drilling Australia Pty Limited [2005] NSWLEC 719 at [191]. There is no basis before me for taking into account any lack of capacity to pay on the part of the Defendant in the setting of a penalty.
[25]
Appropriate penalty
I consider a penalty of $500,000 is warranted in light of the high objective seriousness of this offence.
[26]
Order
The Court makes the following orders:
1. The Defendant is convicted of the offence as charged.
2. The Defendant is fined $500,000 to be paid to the registrar within 28 days of today's date.
3. The Defendant is to pay the Prosecutor's costs as agreed or assessed.
[27]
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.
Decision last updated: 08 April 2015