[2005] HCA 25
Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89
[2002] NSWLEC 132
R v Thomson
R v Houlton (2000) 49 NSWLR 383
Source
Original judgment source is linked above.
Catchwords
[2005] HCA 25
Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89[2002] NSWLEC 132
R v ThomsonR v Houlton (2000) 49 NSWLR 383
Judgment (5 paragraphs)
[1]
EXTEMPORE JUDGMENT
HIS HONOUR: In each of these matters, the Defendant was brought before Liverpool Local Court (the Local Court) on 30 April 2018 for sentencing for committing an offence against s 76A(1)(a) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) for carrying out development without consent at a property in Fifteenth Avenue at Austral, New South Wales.
Ms Elmasri is an owner of that property as to a three-quarter interest, whilst Mr Masri, who is her nephew, is an owner of the property to the extent of the remaining one-quarter interest.
The development which brought each of them before the Local Court was the placing of a number of demountable buildings and a significant number of shipping containers on the property. Development consent was required pursuant to the EP&A Act for those purposes.
Liverpool City Council (the Council), the Prosecutor in the proceedings, served, first, a Notice of Intention to make an order and, subsequently, an order on each of the Defendants requiring the removal of the material placed on the property without development consent. That order was not complied with.
That non-compliance constituted the offence for which each of the Defendants was brought before the Local Court in April 2018.
On that occasion, the learned Magistrate convicted each of the Defendants, granted each of them a discount of 25% on the maximum penalty he proposed to apply (that being consistent with the guideline decision of the Court of Criminal Appeal in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309) with that being in recognition of their guilty pleas to the offences being entered at the earliest available occasion.
There is no discussion in the learned Magistrate's remarks on sentence (as recorded in Exhibit A at page 62) of other matters that might have been appropriate to be taken into account as a consequence of the provisions of the relevant statute governing sentencing and its provisions, that being the provisions of ss 21A and 22 of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act). That statutory provision requires, in s 21A, me to have regard, and the learned Magistrate to have had regard, to various potential aggravating, mitigating and other factors to be taken into account in sentencing.
In this instance, the agreed position is that neither of the Appellants before me have had any prior convictions for any environmental offence or any other potentially relevant offence in these sentencing proceedings.
The Prosecutor submits, before me, that the fact that the Appellants have not, as recently as the inspection undertaken by the Prosecutor's witness, Ms Simon (who gave affidavit and oral evidence today) complied fully with the requirement to remove the demountable buildings and shipping containers shows a lack of contrition and remorse. However, the position is this:
1. As at the photograph showing the nature of what was on the site in December 2017 (photograph in Exhibit A at folio 53), there remained a significant number of shipping containers on the site as at that date; and
2. Mr Masri's affidavit, sworn 25 September 2018, deposes between paragraphs (10) and (16), the nature of the activities he has undertaken on the site to remove structures that are subject to the Council's orders. That has included selling or attempting to sell some of the items and, second, cutting some of the shipping containers into small pieces and taking those pieces to a metal recycler. It is to be inferred, from a combination of paragraphs (13) and (14) of the affidavit of Mr Masri, that those shipping containers that have been cut and removed to a scrap metal dealer realised less as scrap metal than they might otherwise have achieved had a longer period of time been available for them to be sold as shipping containers.
It seems to me that, in the circumstances where Ms Simon's evidence is that as a result of her inspections this week on Tuesday 9 October 2018, there was one shipping container on the site and, by Thursday 11 October 2018, it had been removed, there remains an ongoing commitment by each of the Defendants to the satisfaction of the order that has been made by the Council for the removal of the material giving rise to their offence.
As I observed earlier in the proceedings to Ms Bourke, solicitor for the Prosecutor, the order remains on foot. If there is, after a further effluxion of time, remaining non-compliance with the order, it will be open to the Prosecutor, should it so elect, to bring further enforcement proceedings against Ms Elmasri and Mr Masri.
However, I am satisfied, for the purposes of s 21A of the Sentencing Procedure Act, that each of the Defendants is demonstrating an ongoing commitment to removal of the material that gave rise to the offence and that, for the purposes of these proceedings, I should regard that as demonstrating appropriate contrition and remorse - although not an entirely extinguishing factor of culpability in that regard.
Second, the Prosecutor puts the proposition that there has been no co-operation with the Council because the offending conduct has not yet ceased. Whilst that might be a strictly correct factual position, I am, on the other hand, also satisfied, for the reasons I have outlined (with respect to the ongoing removal of material that has given rise to the offending conduct that brings each of the Defendants before the Court) that there has, in fact, been an ongoing, although not yet entirely sufficient, co-operation with the authorities.
Those subjective factors (which both have changed in a positive fashion since the matter was before the learned Magistrate, and which do not appear to have been adverted to by the learned Magistrate to the extent that there had been removal of material between December 2017 and the date of the hearing in the Local Court in April 2018), constitute further factors of mitigation requiring to be taken into account in my resentencing of each of the offenders.
It is appropriate to observe that, before the Magistrate, the maximum penalty which was available was $110,000, with the option, as has been noted in these proceedings (contrary to the position that was put to the Magistrate), the potentiality of an ongoing daily penalty.
I have not considered it appropriate to contemplate imposing such an ongoing daily penalty in light of the continuing endeavours of compliance of Ms Elmasri and Mr Masri. It has therefore not been necessary to provide a warning to Mr Rahme, solicitor appearing for the Defendants, that I might contemplate some increased or more burdensome sentence in that regard. However, the maximum penalty available for the Magistrate is to be taken as a public expression by the Parliament of the seriousness of the offence charged, as discussed in Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683. However, it is also appropriate to have regard to the fact that the Prosecutor elected to bring the proceedings in the Local Court, at the lower level of available penalty, rather than in this Court at a significantly higher maximum penalty.
The appropriate process I must undertake is to have regard to all the actual subjective factors involving each of the Defendants and to have regard to the early guilty plea entered by them. That leads to my determination as to what might be an appropriate starting penalty to punish each of Mr Masri and Ms Elmasri.
It is also necessary for me to consider the issue of both specific and general deterrence.
First, as dealt with in Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89; [2002] NSWLEC 132, it is necessary to send a message to the broader community of the importance of upholding the integrity of the planning system, so that the community in general is deterred from breaching the law in the fashion that has been undertaken by these two Defendants.
It is also necessary for me to consider to what extent it might be appropriate to impose a penalty that causes specific deterrence to each of the Defendants in these proceedings.
It seems to me, in that regard, that there is a distinction to be drawn between Ms Elmasri and Mr Masri. That distinction arises from the fact that it is accepted that, despite the fact that Ms Elmasri is a majority owner of the site, her role in causing the breach of the EP&A Act - by carrying out development without consent - has been a passive one and that the activities in fact have been undertaken by her husband and by Mr Masri, who is her nephew. I am satisfied, under the circumstances, that I should regard her culpability as being significantly lower than that of Mr Masri and that the penalty to be imposed should be reflective of that position.
It is appropriate for me to characterise the nature of the offending conduct and to note that, in that context, the offending conduct appears to have arisen in circumstances as set out in the affidavit of Mr Masri, where the family - that is, Mr Masri and Ms Elmasri - acquired the property at Fifteenth Avenue at Austral in 1995, in circumstances where, at that time, it would appear that construction of a dwelling on the property was permissible. However, in 1999, the zoning of the property was changed to reflect its flood‑affected status (something that is able to be seen from the location of the watercourse that can be seen running down the western boundary of the property and appearing, to some extent, to turn to run along the southern boundary of the property as shown in the aerial photograph at page 53 of Exhibit A).
It would then seem that what I might describe as the Elmasri clan, having been put in a position of having acquired a property that is no longer able to be developed, decided to undertake utilisation of the property by incorporation of the structures that are the subject of the offending conduct, without having consent from the Council. That totality of circumstances would cause me to conclude that the offending conduct in breach of the EP&A Act might be regarded as being toward the lower end of the lowest order of seriousness.
It is therefore necessary for me to undertake an instinctive synthesis (Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25) of all the relevant factors, objective and subjective, as applying to each of Mr Masri and Ms Elmasri, for the purposes of what might be the appropriate starting penalty for each of them, before applying a discount to reflect their early pleas of guilty.
Before turning to do that, I observe that, implicit in the material that has been provided to me attached to the affidavits of each of Ms Elmasri and Mr Masri, there is an application made that I apply s 6 of the Fines Act 1996 (the Fines Act), in order to mitigate the penalty that might otherwise be applied to them. Section 6 of the Fines Act, permits me to have regard to the financial circumstances of each Defendant in imposing a penalty.
In the case of Ms Elmasri, she sets out in her affidavit at (6), her present employment and earning capacity. She has appended to her affidavit a significant variety of financial information concerning her personal financial circumstances. It is to be observed that (6) of her affidavit and the various financial documents attached to her affidavit stand as uncontradicted evidence as to her financial position, given that the Prosecutor did not avail itself of the opportunity to cross-examine her on those matters.
Second, with respect to Mr Masri, a similar application is made to have regard to his financial circumstances. His financial circumstances are set out at (17) and (18) of his affidavit, and attached to his affidavit is a series of financial documents, including taxation return documents, to which I have regard.
It is also appropriate, in Mr Masri's circumstances, to note the terms of paragraph (19) of his affidavit, a paragraph in the following terms:
I have paid the Council-issued Infringement Notice of $3,000 in December 2017.
That is not a matter that is called into account in these proceedings as giving evidence of any prior conviction. It is, however, relevant, it seems to me, as to his preparedness to pay a penalty that has otherwise been imposed on him. He then continues to say:
I have also had to pay $6,000 of the $12,000 Court-imposed penalty because the State Debt Recovery Office threatened to suspend my driver's licence if I did not pay a contribution towards the fine.
Appended to his affidavit, as Annexure D, is a copy of the receipt for such payment.
I now return to the question of what might be the appropriate starting penalties.
I have regard to the present facts and circumstances that bring each of the Defendants before me on this occasion, which differ from the position when they were brought before the Local Court earlier this year.
There has been, on the evidence before me now, based on Ms Simons' affidavit and her oral evidence today, significantly greater compliance with the order in that there are now no shipping containers on the site and that the principal demountable building has been partially deconstructed
It is also to be noted that Mr Masri deposes, in his affidavit, that the material in the building has been partially deconstructed in order to facilitate disposal of them to a third party who might be prepared to purchase them and remove them from the site, and that that demountable building has been offered for sale on Gumtree, a well-known Australian private trading website.
I am satisfied under all the circumstances, therefore, that the appropriate starting penalty to be imposed on Mr Masri, having regard to all his objective and subjective circumstances, should remain as $12,000.
The Magistrate's starting penalty was obviously $16,000. I am satisfied that that should remain the starting penalty for Mr Masri, with it being reduced by 25% as the appropriate discount for the early guilty plea.
However, I am also mindful of the fact that information concerning Mr Masri's financial circumstances has been placed before me in a fashion not available to the Magistrate and I am satisfied that I should exercise my discretion, pursuant to s 6 of the Fines Act, further to moderate the penalty imposed on Mr Masri. I am satisfied that the appropriate moderation is to limit the penalty to be imposed on Mr Masri to the amount that he has already paid to the State Debt Recovery Office, being $6,000.
With respect to Ms Elmasri, I am also satisfied that, as I have indicated, she is a more minor player in these matters. There does not appear to have been any distinction drawn between her role and that of Mr Masri by the learned Magistrate in his sentencing process. I am not undertaking a review of his Honour's decision, but I am to take into account all of the factors that are presently before me, and I consider that that factor is a matter of some significance, warranting being taken into account.
I have also had regard to the financial circumstances set out in the attachments to Ms Elmasri's affidavit, as well as that which is set out in (6) of her affidavit which, together, constitute the uncontradicted evidence upon which Mr Rahme relies for the purposes of s 6 of the Fines Act.
I am satisfied that, in Ms Elmasri's case, the appropriate starting penalty, having regard to all the objective and subjective facts of her offending conduct and personal circumstances, should be lower than that which was applied by the Local Court in April of this year. I am satisfied that the appropriate penalty which should be imposed on her, as a starting penalty, would be $10,000, in lieu of the $16,000 starting penalty applied by the Magistrate.
I am also then obliged to apply to that starting penalty, a 25% discount to reflect the utilitarian value of the early guilty plea entered by her to her offence. That places, as the appropriate penalty, after that discount, of $7,500 for my consideration as to whether I should undertake further amelioration of the penalty by the application of s 6 of the Fines Act, in light of her financial circumstances.
I have had regard to the facts set out in (6) of Ms Elmasri's affidavit and the various financial matters that are set out in the attachments to her affidavit, that indicate that she is a woman of significantly modest means. The evidence which she gives as to her children, having three of her youngest children residing with her and her husband, also demonstrates that she has a significant potential financial responsibility to her family, in circumstances where she clearly has quite modest financial means. I am satisfied that s 6 of the Fines Act is appropriate to be invoked to moderate the penalty to be imposed on her and that that moderation should be to a greater extent than that which I have applied to Mr Masri. This is reflected in the orders I propose to make.
[2]
202972 of 2018
1. The appeal against sentence in the Local Court is upheld;
2. Penalty imposed by the Local Court is set aside; and
3. A penalty of $6,000 for the breach of the Environmental Planning and Assessment Act 1979 is imposed.
As a consequence of the imposition of that penalty, there are no further moneys outstanding to be paid by Mr Masri.
[3]
168115 of 2018
1. The appeal against sentence in the Local Court is upheld;
2. Penalty imposed by the Local Court is set aside; and
3. A penalty of $2,500 for the breach of the Environmental Planning and Assessment Act 1979 is imposed.
[4]
Costs
On the question of costs, in circumstances:
1. where the affidavit of Ms Simon, dated 11 October, was provided, it can only be said, late to the defence; and
2. where there does not appear to have been any other evidence harvested concerning the state of the premises since the matter was dealt with by the Local Court; and
3. where it is clear from (5) and (6) of Ms Simon's affidavit, that her carrying out of the further inspections of the site was merely incidental to the carrying out of inspections concerning a complaint relating to further development, that is, the bringing of landfill onto the land (as set out in paragraph (6) of Ms Simon's affidavit - that not being a paragraph I struck out as being irrelevant to the offending conduct of the Defendant's in these proceedings),
I am satisfied that it would not be appropriate to make any order for costs in the proceedings.
[5]
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Decision last updated: 29 March 2019