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[2012] NSWLEC 193
Land and Environment Court (NSW)
2012-08-22
Pain J
Original judgment source is linked above.
EX TEMPORE Judgment 1This is an appeal under s 31(1) Crimes (Appeal and Review) Act 2001 (the Appeal Act) against the sentence imposed on the Appellant Mr Miah by Burwood Local Court on 1 December 2011. In response to a summons filed by Canterbury City Council (the Council) Mr Miah pleaded guilty to an offence under s 125(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) being a breach of s 76A(1)(a) of carrying out development without consent. Work was undertaken by Mr Miah on the replacement of an outbuilding/granny flat on land owned by him at Wiley Park. Mr Miah was fined $2,000 and ordered to pay the Council's legal costs of $3,000. 2Under s 37(1) of the Appeal Act an appeal in this Court is by way of rehearing on the basis of evidence before the Local Court. New evidence can be relied upon with leave of the Court under s 37(2) if it is in the interests of justice to allow it. At the outset of the hearing I gave leave to Mr Miah to read an affidavit sworn by him on 15 August 2012 which contained more detail of his financial situation than was before the Magistrate. He was also allowed to rely on a statement which identified a number of matters before the Local Court relating to the purchase of his house at Wiley Park in 2010 and mortgage financing for this, his application for development consent DA 349/2010 for extensions to the main house and the exclusion of work to the outbuilding/granny flat at that time, incorrect information received from a friend that no development consent was needed for the outbuilding/granny flat, and the commencement of work on the outbuilding/granny flat in April 2010. A notice of intention to issue an order to demolish the building was issued by a Council officer in May 2011. An application for a building certificate was made in June 2011 for the work already done and was issued by the Council on 19 July 2011. He lodged a development application for the balance of the work on the outbuilding/granny flat in November 2011. Mr Miah was convicted and sentenced on 1 December 2011. Development consent was granted on 2 December 2011. 3Mr Miah's affidavit attests to his recent surgery which meant he was unable to work for three months earlier this year. His oral evidence is that he has very recently returned to work full time but cannot do any overtime because of his health. Mr Miah was cross-examined by the Council's solicitor about his financial position. He identified that he had a mortgage in 2010 of $375,000. He estimated he had equity in his house of $100,000. He states that his net income when he is working full time is $4,038 per month and his expenses are $4,000. His income was much less when he was on sickness benefits. He stated in cross-examination that he refinanced his house and obtained a mortgage of $410,000 in April 2011 to include funding for the building of the outbuilding/granny flat and for travel expenses to visit a sick relative. 4The transcript and Local Court file were also tendered by the Council. Documents obtained on subpoena from Suncorp Bank concerning an application for a mortgage for his house at Wiley Park were also tendered. A chronology of relevant dates was filed by the Council. 5Mr Miah submitted that he would suffer financial hardship if any penalty at all is imposed on him and also seeks a reduction of the Council's legal costs. He submitted that his case was distinguishable from the many listed in the attachment to the Council's submissions because he stopped work, applied for a building certificate, development consent and a construction certificate. He estimates he has paid $8,383.60 for these certificates. I note this expenditure was over a period from 27 June 2011 to 10 February 2012 according to the dates on some of the receipts at attachment 7 to his statement. 6The Council submitted that the penalty imposed by the Magistrate was already low and Mr Miah's ability to pay was taken into account by the Magistrate. Any lesser penalty would have no deterrence effect for an offence that is increasing in the Council's local government area. A lower penalty would be a disincentive to incur the costs of making development applications where required.
Consideration 7It is not necessary that I find error in the determination of the Magistrate in reaching any decision. Section 49(2) of the Appeal Act states the Court on appeal may exercise any function that the Local Court could have exercised in the original proceedings. It is nevertheless instructive in this matter to see how the Magistrate exercised his discretion in imposing a monetary penalty of $2,000. 8By way of general sentencing principles, s 3A of the Crimes (Sentencing Procedure) Act 1999 identifies the objectives of sentencing as follows: 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, 9The jurisdictional limit on the maximum penalty for offences of this type in the Local Court is $110,000 reflecting the seriousness with which the Parliament views these offences. As the Council submitted, the size of the partially built detached outbuilding/granny flat was large in the context of the block of land being over 40 sqm. The objective gravity of the offence is at the low end of the possible range of seriousness but in the context of discouraging such illegal building work general deterrence is important. The necessity of upholding the regulatory framework for development control is identified by Preston J in Zhou v Auburn City Council; Chen v Auburn City Council [2009] NSWLEC 75 at [24] - [27]. 10Mr Miah pleaded guilty, albeit not at the earliest opportunity, a matter also considered by the Magistrate in reducing the penalty imposed. 11The main issue to consider is Mr Miah's capacity to pay a fine and is the sole basis for this appeal according to Mr Miah. I should add that his submission that he incurred costs regularising the unauthorised work by applying for a building certificate and a development consent for the balance of the work not then undertaken is not a mitigating consideration in my view, but simply a necessary cost that had to be incurred by Mr Miah in the circumstances if he wanted to place the building work on his property on a legal footing. 12I consider that the penalty imposed is very low given the need for general deterrence in offences of this nature. From the transcript it is clear that the Magistrate took into account Mr Miah's limited financial means in imposing the penalty and legal costs that he did. That level of penalty is lower than 36 cases involving the same offence in the Council's local government area, several concerning unauthorised alterations to granny flats, referred to in a list attached to the Council's submissions. The range of penalties imposed ranges from $3,000 to $20,000. While each matter must inevitably vary on its facts, this generally confirms that the penalty imposed in the Local Court was very low. 13Section 6 of the Fines Act 1996 requires a court to consider information before it concerning the means of the accused where available in fixing the amount of a fine. In Environment Protection Authority v Buchanan (No 2) [2009] NSWLEC 31; (2009) 165 LGERA 383 I held at [65] that the appropriate method of considering a defendant's means to pay was set out in R v Rahme (1989) 43 A Crim R 81 at 87, including that if the Court considers that an offender would be unable to pay the amount determined it may reduce it to take into account the offender's means and impecuniosity. 14I have more information about Mr Miah's financial affairs than was before the Magistrate and also, through cross-examination, his history of borrowing to finance the purchase and extensions to his main house and the outbuilding/granny flat. While I accept that Mr Miah considers that he would suffer hardship if he were required to pay the fine I consider he does have discretion about how and when he completes the outbuilding/granny flat work and how he uses the mortgage facility available to him with his bank in meeting any obligation to pay a penalty. He has equity in his house. Mr Miah obtained development consent the day after the imposition of the penalty in December 2011. This enabled the balance of the outbuilding/granny flat work to be commenced and this has proceeded according to Mr Miah. He then obtained a construction certificate which cost nearly $1,937, according to his statement. Building work has proceeded although Mr Miah says he has not paid for any of this since the Local Court proceedings. I do not consider Mr Miah is unable to pay the fine imposed. 15The Magistrate imposed legal costs for an amount less than that sought by the Council. I do not consider I should further reduce these as I consider they were properly incurred in any event. 16Mr Miah has not availed himself of the opportunity under s 10 of the Fines Act to apply for time to pay the penalty. He was advised by the Magistrate of this avenue. He can apply for time to pay both the penalty and the legal costs imposed. That option remains open to him. 17I consider I should exercise my discretion to dismiss this appeal.
Orders 18The Court makes the following orders:
Md Abdul Halim Miah
Canterbury City Council