Minister administering the Ports Corporatisation and Waterways Management Act 1995 v Hakim

Crimes (Sentencing Procedure) Act 1999 ss 3A, 21A, 22 LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 93(1) Rivers and Foreshores Improvement Act 1948 Pt 3A, ss 22B, 22D, 22G

Camilleri's Stock Feeds Pty Ltd v Environmental Protection Authority (1993) 32 NSWLR 683; Mill v The Queen (1988) 166 CLR 59; Minister administering the Ports Corporatisation and Waterways Management Act 1995 v Hakim [2005] NSWLEC 92; CASES CITED: Ryan v The Queen (2001) 206 CLR 267; Veen v The Queen (No 2) (1988) 164 CLR 465; Wheeler v The Queen [2000] NSWCCA 34

DATES OF HEARING: 03/05/2005, 04/05/2005, 23/05/2005

PROSECUTOR I Hemmings SOLICITOR Baker & McKenzie LEGAL REPRESENTATIVES:

DEFENDANT P Tomasetti SOLICITOR Storey & Gough

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MINISTER ADMINISTERING THE PORTS CORPORATISATION AND WATERWAYS MANAGEMENT ACT 1995 Prosecutor

JUDGMENT 1 His Honour: On 7 April 2005 the Court delivered judgment in proceedings 50057 of 2004 and 50058 of 2004: see Minister Administering the Ports Corporatisation and Waterways Management Act 1995 v Hakim [2005] NSWLEC 92. In proceedings no 50057 of 2004 the Court found the defendant guilty of making an excavation on protected land at 10 Fortescue Street Chiswick ("the site"), contrary to s 22B of the Rivers and Foreshores Improvement Act 1948 ("the Act"). In proceedings no 50058 of 2004, the Court found the defendant guilty of failing to comply with a stop work order under s 22D of the Act ("the order"). The facts are set out in the judgment of 7 April 2005. The Court is now required to assess the penalties.

2 The Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Act") applies to sentencing of offences arising under provisions of the Act. Section 3A of the Sentencing Act states the purposes 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, (g) to recognise the harm done to the victim of the crime and the community.

3 Section 21A of the Sentencing Act lists the appropriate aggravating and mitigating factors which the Court must take into account. Subsection (2) lists the aggravating factors, of which only paragraph (g) is relevant to these offences. Paragraph (g) provides: (g) the injury, emotional harm, loss or damage caused by the offence was substantial …

4 Subsection (3) of s 21A lists the mitigating factors to be taken into account, and relevantly provides: (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, (b) the offence was not part of a planned or organised criminal activity, … (e) the offender does not have any record (or any significant record) or previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, … (i) the offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other manner, …

5 The Court is required to assess penalty based upon the principle referred to in Veen v The Queen (No 2) (1988) 164 CLR 465 at 476 where the Court said:- The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform.

6 The defendant pleaded not guilty to each of the charges resulting in a hearing extending over eight days. As a consequence the Court cannot make any reduction in penalty as provided by s 22 of the Sentencing Act. Prosecutor's submissions

7 The prosecutor has provided to the Court the affidavit of Nicholas Angelini sworn 1 October 2004 to which is attached a report. Mr Angelini, a town planner, provides his expert opinion of the environmental effects resulting from the destruction of the cliff face on the site. On the basis of this report the prosecutor submits that significant environmental harm was caused by the unlawful excavation and that the offence is objectively serious.

8 In its judgment of 7 April 2005 the Court found that the defendant had caused or allowed unlawful excavation on the site throughout the period from October 2003 to 7 February 2004, but that he had not caused or allowed the rockfall which occurred on 5 February 2004. The prosecutor acknowledges that the defendant cannot be punished for the rockfall of 5 February 2004 but submits that the majority of the environmental harm was caused by the unlawful excavation on 6 February 2004 and not from the rockfall. The prosecutor refers to the photographs taken by the Waterways Authority ("Waterways") after the excavation on 6 February 2004, compared to those taken by Michael Egan (attached to his affidavit sworn 25 July 2004), which were taken after the rockfall but before the excavation of 6 February 2004.

9 The prosecutor submits that the defendant has shown no remorse for his actions and has prevaricated in rehabilitating the site. The prosecutor points out that no rehabilitation of the site has occurred to date, despite the issue of a Pt 3A permit under the Act by Waterways in August 2004 for the initial clean-up work. The prosecutor submits that the defendant's expressed intention to co-operate with Waterways in the remediation has nothing to do with his remorse for his actions and is entirely related to his desire to complete his house, which is currently delayed by the requirements of Waterways.

10 The prosecutor submits that the penalty should reflect a significant element for general deterrence. The prosecutor states that these are the first prosecutions by Waterways under the Act and that the Court needs to send a strong message that planning law must be obeyed.

11 In relation to proceedings 50057 of 2004, the prosecutor submits that the breach was a serious one and, consistent with the principles of Camilleri's Stock Feeds Pty Ltd v Environmental Protection Authority (1993) 32 NSWLR 683 the penalty should be within the upper end of the range. The prosecutor submits that the defendant's continued excavation, even after having been informed specifically that he did not have a permit, shows a contumacious disregard for the law and indicates the need for specific deterrence.

12 In relation to proceedings 50058 of 2004, the prosecutor submits that the breach of the Act was contumacious and that the penalty should be in the upper, if not the extreme, end of the range. The prosecutor submits that the defendant was aware of the order, yet deliberately disobeyed the requirements of the order.

13 The prosecutor submits that the totality principle is inapplicable to the charges. Although both offences arise out of similar facts, the prosecutor submits that the failure to obtain a Pt 3A permit before commencing work is different to the failure to comply with a stop work order, and that the two offences require separate punishment. The prosecutor submits that the totality principle should apply only in relation to the harm caused by each offence, since this is the only aspect which overlaps. Defendant's submissions

14 The defendant submits that the objective seriousness of each offence does not justify a penalty within the upper range. The defendant submits that the offences were isolated occurrences and resulted from circumstances which were extraordinary in many respects.

15 In respect of proceedings 50057 of 2004, the defendant submits that he did not deliberately set out to breach the Act. The defendant submits that the offence occurred through his omission to ensure that a Pt 3A permit had been issued rather than through any intention to breach the Act. The defendant submits that he was not involved in directing the illegal excavation which constituted the breach. The defendant submits that the finding of the Court that the defendant "caused or allowed" the excavation is significantly less serious than a finding of deliberate breach. Accordingly the defendant's conduct is not properly within the upper end of the sentencing range.

16 The defendant further submits that the excavation carried out between October 2003 and the end of January 2004 was required for his dwelling, for which consent had been granted by the Council. Waterways had granted approval in principle for such excavation before any work on the site had commenced, and under s 93(1) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"), had the defendant applied for a Pt 3A permit, Waterways would have been bound to issue it. The defendant submits that the excavation for the dwelling without a permit involved merely a technical breach of the Act and should therefore not carry a significant penalty. Further, the defendant submits that he did not know until 14 January 2004 that a permit had not been issued and had relied on his builder, Mr Constantinidis, to lawfully undertake development of the site.

17 In respect of proceedings 50058 of 2004, the defendant submits that his failure to comply with the order was not contumacious. The defendant claims that he received the order on the evening of 5 February 2004 and on the following morning he faxed the order to Mr Constantinidis, tried unsuccessfully to telephone the Council and went to the site. On arrival at the site, he told the foreman Mr Goumis, of the issue of the order. The defendant submits that these actions indicate that he was concerned to act on the order and that his failure to comply with the order was not contumacious.

18 The defendant submits that he has no likelihood of re-offending and that the offences arose predominantly from an unexpected turn of events rather than from the defendant's deliberate disregard for the planning law. The defendant submits that he had attempted to comply with the planning requirements when developing the site by making numerous development applications in relation to the development. The defendant had also engaged experts, including a planning consultant, builder, engineer and landscaper, to ensure that the work was properly carried out.

19 The defendant submits that the prosecutor has overstated the environmental harm caused by the offences. The defendant acknowledges that the cliff has been substantially and permanently altered by the unlawful excavation but submits that the environmental value of the site before the unlawful excavation took place was not as significant as suggested by the prosecutor. The defendant submits that the surrounding frontage to Parramatta River had been extensively developed prior to the commission of the offences and that the relative environmental value of the site was thereby lessened. Further, the defendant submits that once rehabilitation of the site has occurred, the damage to the scenic qualities of the locality will be significantly less than at present.

20 The defendant submits that he is contrite and has co-operated with Waterways in rehabilitating the site. He submits that the delay in rehabilitating the site has been due to negotiations with Waterways concerning a remediation plan of the site, rather than his unwillingness. The defendant submits that he co-operated fully with Waterways even before he was found guilty of the two offences and refers to the evidence of Ms Rougellis of Waterways which supports such submission.

21 The defendant submits that the two offences arise from the same circumstances and that the totality principle should apply. Findings

22 In its judgment of 7 April 2005 the Court found that the damage to the cliff face caused by the rockfall on 5 February 2004 did not result from any deliberate action by the defendant. With regard to proceedings 50057 of 2004, the Court accepts the defendant's submission that in relation to that part of the excavation which occurred prior to the rockfall, the breach was technical in nature. Waterways had indicated that a Pt 3A permit would be issued for such excavation and pursuant to s 93(1) of the EP&A Act, Waterways was required to issue such permit upon application by the defendant. It was only the defendant's failure to apply for such permit which rendered that part of the excavation unlawful.

23 Different considerations apply to that part of the excavation which took place on 6 February 2004, after the rockfall. Waterways would not have been required to issue a Pt 3A permit in respect of such excavation as it was not contemplated by the development consent, in contrast to the excavation for the house. Waterways had already rejected an application by the defendant to carry out work in the vicinity of the cliff face because of the destruction of natural habitat values, as detailed in its letter of 8 September 2003. In addition, by 6 February 2004 the defendant knew that any excavation being carried out on the site required a permit and that no permit had been issued for such work.

24 As to proceedings 50058 of 2004, the defendant had received the order on 5 February 2004. The order directed the defendant, his agents and contractors to stop all works within 40 metres of the mean high water mark and advised, inter alia:- The breaching of a 'stop work order' is a criminal offence (RFI Act S22D(5)). Had the defendant complied with the order, the resulting environmental damage to the cliff face which occurred on 6 February 2004 would have been avoided.

25 Compliance with the order depended entirely on action by the defendant to alert the builder and to prevent further excavation. When the defendant received the order on 5 February 2004 he knew that excavation was to resume the next day. On the following morning the defendant informed the builder by facsimile of the order, and told the site foreman when he arrived on site at approximately 9am. However, in the circumstances such actions were inadequate. The defendant was required to ensure that excavation did not take place. Instead, after informing the site foreman of the order, the defendant took no further action to prevent the excavation continuing. Photographs taken by the neighbour, Mrs Egan show the defendant standing by whilst the excavation continued. The substantial damage to the cliff face only took place after the defendant's arrival on the site and has resulted in the environmental damage. As referred to in the Court's judgment of 7 April 2005, the defendant bore the responsibility of ensuring compliance with the Act. Environmental Harm

26 Attached to Mr Angelini's affidavit is his report relating to the cliff face and the effects of the unlawful excavation. The report notes that: … the landscape and special scenic qualities of this section of the River derive from the presence of the cliff face and the remaining natural shoreline features that are distinguishable along the relatively uncluttered shoreline.

These features are significant enough and visually strong enough to hold their own with, rather than be dominated by, the scale of residential development that occupies the foreshore section above the cliff.

No 10 Fortescue Street, before works commenced, featured both the cliff face and a predominantly natural shoreline and therefore was a major contributor to the special scenic and natural qualities of this area. The projecting rock ledge enhanced this contribution.

27 The report then considers the impact of the unlawful work on the landscape and scenic values of the locality and states (inter alia): The loss of the rock ledge and portion of the cliff face has significantly compromised and devalued the property's positive contribution to the landscape and special scenic qualities of the broader foreshore area between Armitage and Figtree Reserves.

28 On 23 May 2005 the Court undertook a view of the site. The Court observed that the physical characteristics of the site have been extensively altered by the unlawful excavation. Although the original physical form cannot be replaced, the environmental damage is primarily aesthetic. Whilst restoration of the cliff face is impossible, the Court accepts that work can be undertaken to alleviate the unsightly appearance of the site.

29 Development on adjoining lands to the west of the site show that the cliff face has been substantially developed by incorporating it into stone walls, staircases and platforms. The cliff face could be remediated to be consistent with the adjoining properties on the western side of the site. Mitigation

30 The Court accepts that the defendant is otherwise a person of good character (see Ryan v The Queen (2001) 206 CLR 267 per McHugh J at 275 and 278) and is unlikely to re-offend. Further the offences did not result from any part of a planned or organised criminal activity.

31 The defendant has expressed his willingness to co-operate in the remediation of the site. Although no rehabilitation of the site has occurred to date, the Court accepts that negotiations have taken place between Waterways and the defendant relating to the measures now to be taken to remediate the site. The Court notes the evidence of Ms Rougellis of Waterways that the defendant had always indicated to the Authority that he was "willing to rehabilitate".

32 The costs of rehabilitation will be paid by the defendant. Pursuant to s 22G of the Act Waterways is empowered to direct the defendant to rehabilitate the site. If such direction is not fulfilled, the work may be authorised by Waterways and the cost recovered from the defendant. If not paid, Waterways can impose a charge on the defendant's land.

33 The Court takes into consideration the fact that the offence in 50057 of 2004 has resulted from the defendant's reliance upon his builder in the development of the site. The Court also takes into consideration that in respect of the offence of 50058 of 2004, the defendant did not act with total disregard of the order, since he tried to telephone the Council on the morning of 6 February 2004. The Court accepts the defendant's submission that the instructions from Sydney Water conflicted with the order, and that the excavation on 6 February 2004 was carried out solely to comply with Sydney Water's instructions. These are matters which the Court will take into account in the assessment of penalty and will justify a reduction from the imposition of a penalty at the upper end of the penalty range. Penalty

34 The Court considers that the penalties to be applied vary according to the need for deterrence. In proceedings 50057 of 2004, the conduct of the defendant warrants a penalty in the lower range. Although prima facie a serious breach has occurred, when analysed it becomes apparent that the unlawful excavation would have been approved by Waterways, except for the excavation on 6 February 2004. The maximum penalty prescribed for such offence is $66,000. The Court assesses the penalty in the sum of $15,000.

35 In proceedings 50058 of 2004, the culpability is more serious. The maximum penalty prescribed for this offence is $66,000. The Court imposes a penalty of $30,000. A more substantial penalty would have been imposed but for the matters referred to in para 33 above.

36 The Court now addresses the totality principle. The purpose of the totality principle is to ensure that if more than one offence is committed, the total penalty is not disproportionate to the criminality of the offences: see Mill v The Queen (1988) 166 CLR 59; Wheeler v The Queen [2000] NSWCCA 34. The defendant has been found guilty of two offences, the ingredients of which are different, as submitted by the prosecutor. The Court also is mindful that the totality principle has lesser application where the penalty for the offences consists of a fine: see Camilleri per Kirby P at 704. However, because of the close time frame and shared environmental harm resulting from the offences, the Court considers the aggregate penalty should be reduced to reflect the total criminality: Camilleri at 704. Accordingly, the Court reduces the penalty in proceedings 50058 of 2004 to $25,000.

37 The defendant is to pay the prosecutor's costs, which are estimated by the prosecutor to amount to $198,000. However the amount of the costs is a not a factor to be taken into account in the assessment of the penalties. Orders

38 The Court makes the following orders:

1. The defendant is convicted of charge no 50057 of 2004 and is fined $15,000.
2. The defendant is convicted of charge no 50058 of 2004 and is fined $25,000.
3. The defendant pay the prosecutor's costs of charges 50057 of 2004 and 50058 of 2004.
4. The exhibits be returned.

08/07/2005 - Incorrect judgment date on cover sheet - Paragraph(s) Cover sheet

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