Mr Loel's State of Mind
48A strict liability offence, such as the offence in question, that is committed intentionally, negligently or recklessly will be objectively more serious than one committed inadvertently (Rae at [42], Gittany at [123] and Garrett v Freeman (No 5) [2009] NSWLEC 1; (2009) 164 LGERA 287 at [68]).
49It was a matter of controversy whether Mr Loel, as the council submitted, committed the offence intentionally, or whether, as Mr Loel submitted, the commission was inadvertent insofar as he believed that he had a construction certificate that permitted him to carry out the building works.
50Mr Loel submitted that the Court could reasonably infer from Dr Gertler's report that at the time of the commission of the offence he suffered from a major depressive illness, caused by the motor vehicle accident in November 2009 and that this provided a possible explanation as to why he did not comply with the instruction given by Ms McKay on 18 August 2010, forbidding him to construct the driveway and car parking area. Put another way, he submitted that the existence of his mental illness at the time of the commission of the offence meant that this Court could not be satisfied beyond reasonable doubt that he had consciously chosen to disregard the warning given to him by the council on that day.
51Another possible reason, Mr Loel submitted, to explain why he did not follow Ms McKay's direction not to commence construction of the driveway and car parking area, was his genuine belief that he was in possession of a construction certificate that permitted him to do so, albeit mistakenly held. This belief, of which the transcript below was replete with references, was more likely to exist, Mr Loel contended, if a person was suffering from a dementing disease or some other disorder afflicting memory. Thus his mental illness, combined with his advanced age (he is currently 79 and was 77 when he committed the offence) affected his decision-making faculties at the time of the commission in the offence.
52Accordingly, Mr Loel asserted that the Court would find on the balance of probabilities that by reason of: his age; the associated organic dementing process; his general loss of memory and loss of concentration accelerated following his involvement in the motor vehicle accident in November 2009; his diagnosis of major depression; his reduced cogitative functioning; his confusion; and his lack of experience in property development, meant that at the time of the commission of the offence, Mr Loel's decision making skills, and therefore his state of mind, were impaired and that he did not commit the offence intentionally.
53Following the decision of the High Court late last year in Muldrock (at [27] where the Court said, "[t]he objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending") there has been some controversy concerning the extent to which, if any, the mental condition of an offender at the time of the commission of the offence can be taken into account in assessing the objective seriousness of that offence (compare R v Biddle [2011] NSWSC 1262, Ayshow v R [2011] NSWCCA 240 at [39] and MDZ v R [2011] NSWCCA 243 at [67]). Although the debate is framed in the context of a determination of the sentence to be passed for an offence carrying a standard non-parole period of imprisonment pursuant to s 54B of the CSPA, it is at least arguable that the High Court comments have present application. If they do, then it would appear that the view expressed in Ayshow and MDZ should prevail and that any affliction bearing upon the offender's mental state remains a relevant factor on sentence in an assessment of moral culpability.
54But in any event, the contest is not one that is required to be determined by me because, as a matter of fact, I cannot accept the submissions put by Mr Loel. In my view, Dr Gertler's opinion is too equivocal to permit the Court to find, even as a matter of inference, that Mr Loel's state of mind was impaired in the manner suggested by him at the time he committed the offence. While it may be that there are ongoing cognitive problems impacting upon Mr Loel's memory and concentration that currently affect Mr Loel's reasoning and decision making processes, and that these problems are symptomatic of his depression that may have been caused by the motor vehicle accident (in this regard the Court notes that further investigations by a neurologist are underway to determine this very issue), nowhere in his report does Dr Gertler indicate with sufficient precision what the likely mental state was of Mr Loel at the time he undertook the unlawful works. In my opinion, the inference Mr Loel invites the Court to draw is premised on speculation by Dr Gertler that is too slender to sustain it.
55To the extent that Mr Loel sought to extrapolate what his mental state was at the relevant time by reason of his irrational behaviour in disputing the fine in the court below, Dr Gertler states that this can either be indicative of poor reasoning and judgment related to his depression or associated with the characteristics of a person with dementia, or alternatively the decision can be explained on the basis of Mr Loel's obstinate personality.
56This is not to say, however, that the Court does not find that he is not currently suffering from a major depressive illness. The clear uncontested evidence of Dr Gertler is that he presently is.
57But for the reasons given above I do not find on the balance of probabilities that Mr Loel's current mental illness materially affected his state of mind at the time of the commission of the offence.
58However, for the council to succeed on this issue, I must be satisfied beyond reasonable doubt that Mr Loel engaged in the unlawful construction deliberately, that is to say, with the knowledge that no construction certificate had been issued in respect of those works and with the knowledge that one was required. While I do not accept that Mr Loel was a beneficiary of five warnings, as stated by the council in its submissions, I find that he did receive at least one clear warning given to him by Ms McKay at the property on 18 August 2010. During that conversation Mr Loel was told expressly, and in language that was tolerably plain and unambiguous, that he was not able to pour the concrete for the construction of the driveway. Notwithstanding this instruction, this is precisely what Mr Loel proceeded to do on 20 August 2010. Had he genuinely believed that he was entitled to proceed with the works, I am confident that he would have provided Ms McKay with a statement to that effect on 18 August 2010. Similarly, had he held this genuine belief on 20 August 2010 when he was observed by Mr Davies pouring the concrete, he would have communicated this understanding to him, rather than falsely assuring Mr Davies that Ms McKay and Mr Boyce had given him permission to commence the works.
59That Mr Loel understood the instruction that was given to him on 18 August 2010 is, in my opinion, also supported by the conversation that took place between himself and Ms McKay on 25 August 2010. If Mr Loel honestly thought that he was entitled to pour the concrete on either 18 or 20 August 2010 (contrary to what he told Mr Davies) then it would be reasonable to expect that this is what he would have told Ms McKay during his conversation with her on 25 August 2010. But this is not what he said to Ms McKay. On the contrary, he indicated to her that he understood that he did not have a construction certificate permitting him to pour the concrete. This, in my view, is the same understanding that he had on 18 and 20 August 2010.
60I therefore find beyond reasonable doubt that at the time the driveway and car parking areas were constructed Mr Loel was aware that he did not, as required, have the necessary construction certificate permitting him to engage in those building works.
61It follows that in rejecting Mr Loel's submission that the unlawful act should be characterised as the result of his mistaken belief, and in finding that he acted deliberately in committing the offence, the objective seriousness of the offence increases.