Minister Assisting the Minister for Infrastructure and Planning v Diacano

50007-12 of 2004 MINISTER ASSISTING THE MINISTER FOR INFRASTRUCTURE AND PLANNING v DIACANO

JUDGMENT 1 Her Honour: These are prosecutions brought by the Prosecutor under s 109Z(h)(1)(a) of the Environmental Planning and Assessment Act 1979 (the EP&A Act). That section provides that it is an offence for a person to issue a Pt 4A certificate if not authorised to do so pursuant to Pt 4B of the EP&A Act. Part 4A certificates are defined to include construction certificates and occupation certificates. Part 4B of the EP&A Act provides a regime whereby people can be accredited as an approved certifier. Section 109D of that Act authorises accredited certifiers to issue construction certificates and occupation certificates.

2 The Defendant is charged with six separate offences of issuing Pt 4A certificates, being four construction certificates and two occupation certificates, between 21 August and 11 September 2003 contrary to s 109Z(h)(1)(a) of the Act.

3 The Defendant has pleaded guilty to each of these six offences so that the essential legal ingredients of each of these offences is taken to have been admitted. The maximum penalty applicable to each of these offences at the time the offences were carried out was $33,000.

4 The essential details relating to each of these offences is contained in the Statement of Agreed Facts which the parties helpfully provided. The Statement of Agreed Facts relevantly provides as follows: … The offences are that when not an accredited certifier, the defendant issued the following Part 4A certificates: 3.1 Construction Certificate No. 3101CCI in respect of a property at 2 Rupertswood Avenue, Bellevue Hill dated 21 August 2003 … 3.2 Occupation Certificate No. 20030C50 in respect of a property at 14 Cambridge Street, Paddington dated 26 August 2003 … 3.3 Occupation Certificate No. 20030C49 in respect of a property at 508-510 Willoughby Road, Willoughby dated 28 August 2003 … 3.4 Construction Certificate No. 3103CCI in respect of a property at Lot 162 DP 755905, Parish of Bendoura dated 30 August 2003 … 3.5 Construction Certificate No. 3106CCI in respect of a property at 1A Hopetoun Avenue, Mosman dated 4 September 2003 … 3.6 Construction Certificate No. 3107CCI in respect of a property at 18 Florence Terrace, Scotland, Ireland [sic] dated 11 September 2003 …

… Between 1 December 1999 and 16 November 2001, the defendant was an accredited certifier (accredited by the Building Surveyors and Allied Professions Accreditation Board Inc) (BSAP), being accredited certifier level 3 and principal certifying authority level 3, registration No. 849.

On or about 16 November 2001, the defendant's accreditation as an accredited certifier lapsed.

On 17 May 2002, the Minister for Planning withdrew the authorisation of BSAP to act as an accreditation body and appointed the Director-General of the Department of Planning to exercise the functions of the (former) BSAP. Subsequently, in October 2003 the Minister appointed the current Director-General and Deputy Director-General to exercise the functions of the former BSAP. …

By reason of the appointment of the Director-General and Deputy Director-General as referred to … above, two complaints about the defendant's activities under the EPA Act were referred to the Department for investigation. …

As a consequence of the Department's investigation of those complaints, it came to the attention of the Department that the defendant's accreditation as an accredited certifier had lapsed on or about 16 November 2001.

On 23 July 2003, an officer of the Department (Mr Lee Miller) telephoned the defendant during which there was a conversation to the following effect: Mr Lee Miller said: "The Department has received two complaints about your work and activities as an accredited certifier but we have no record of you holding a current accreditation. I am aware that the records received by the Department from BSAP may not be complete. Do you have any record to indicate that you are currently an accredited certifier?"

The defendant said: "I am an accredited certifier and I will fax a copy of the relevant documents to you." … On 15 August 2003 Mr Lee Miller again telephoned the defendant during which there was a conversation to the following effect: Mr Miller said: "I haven't received the copy of your accreditation yet."

The defendant said: "I agree that I have not been accredited since November 2001. My wife has spoken to John Gill and has obtained the application forms for re-accreditation. I realise that I have been acting as an accredited certifier without accreditation." Mr Lee Miller said: "You would be aware that acting as an accredited certifier when you are not accredited is an offence under the Environmental Planning and Assessment Act. You have to cease all your activities as an accredited certifier immediately and talk to Glenda Dunn, Environmental Planning officer, who can advise how to arrange to transfer any development for which you might have been appointed as the principal certifying authority."

The defendant said: "Yes I will do that." … After the telephone conservation with Mr Miller on 15 August 2003, the defendant continued to act as an accredited certifier and issued the Part 4A certificates under the EPA Act the subject of the charges to which pleas of guilty have been entered …

5 The EP&A Act is apparently silent as to what occurs if the situation before me arises, namely a Pt 4A certificate is issued by a person who is not authorised to do so under that Act. It seems to me that, at the very least, there must be legal consequences arising from the issue of a certificate by a person who is not accredited, which consequences may or may not give rise to actual loss or damage to those who seek to rely on the Pt 4A certificates invalidly issued. The Defendant's barrister has indicated from the bar table that, at this stage, no actual loss or damage has arisen as a result of the six offences before me.

6 I note the Defendant was accredited by the Building Surveyors and Allied Professions Accreditation Board ("the BSAP") to act as a private certifier under s 109T of the EP&A Act on 1 December 1999. That certification expired on 16 November 2000. Prior to that date the Defendant applied for re-accreditation from the BSAP. This application for re-accreditation was dealt with by the BSAP some time after 5 December 2000 and backdated so that the Defendant's re-accreditation commenced from 16 November 2000. This accreditation lapsed on 16 November 2001. At the time the Defendant was accredited and re-accredited the BSAP was authorised by the Minister, the Prosecutor, pursuant to s 109S of the EP&A Act as an accreditation body and therefore had the power to accredit certifiers.

7 The Defendant was also accredited at the same time as a building surveyor under the national building accreditation scheme administered by the BSAP. I am informed that the national and NSW certification schemes are not related, although the BSAP was able at that stage to authorise accreditation under both schemes. Certification under the national accreditation scheme required renewal every three years whereas certification as an accredited certifier under the NSW scheme was required to be renewed annually.

8 It is the Defendant's evidence that he confused the renewal dates for the national and NSW accreditation schemes, and was under the mistaken impression that accreditation under the NSW scheme was also every three years rather than annually. As a result of this the Defendant did not apply for re-accreditation as a certifier so that his accreditation under the EP&A Act lapsed on 16 November 2001.

9 It is relevant to note that on 17 May 2002 the Minister revoked the BSAP authorisation as an accreditation body and authorised the Department of Infrastructure, Planning and Natural Resources as the accreditation body responsible for accrediting certifiers under the EP&A Act. On 23 July 2003, following the receipt of two complaints relating to the Defendant, a Departmental officer contacted the Defendant by telephone and advised him the Department had no record of the Defendant holding current accreditation.

10 It is also clear from the Statement of Agreed Facts that in a telephone call on 15 August 2003 a Departmental officer again spoke to the Defendant, who admitted that he did not at that stage have accreditation, and told the Defendant that he should immediately stop issuing Pt 4A certificates. This conversation is, according to the Prosecutor, a key matter relating to the Defendant's culpability as the Defendant then continued to issue two occupation certificates and four construction certificates. It is the issue of these certificates which have resulted in the six charges which are before me today.

11 The Defendant's evidence is that when he issued these six Pt 4A certificates he was under the mistaken impression that his accreditation would be approved and backdated as had occurred previously under the BSAP system when the BSAP was a relevant accreditation body. In issuing these six certificates the Defendant also stated in his affidavit evidence that he considered he had obligations to fulfil to longstanding clients.

Section 10 - Crimes (Sentencing Procedure) Act 1999 12 The Defendant is seeking an order under s 10(1) of the Crimes (Sentencing Procedure) Act 1999 that the charges be dismissed without proceeding to a conviction.

13 Section 10(3) of the Crimes (Sentencing Procedure) Act 1999 sets out of the following factors that I must consider in deciding whether or not I should make an order under s 10(1): (i) the person's character, antecedents, age, health and mental condition; (ii) the trivial nature of the offence; (iii) the extenuating circumstances in which the offence was committed; (iv) any other matter that the court thinks proper to consider.

14 The Prosecutor opposed the making of such an order on the grounds that the offence is not trivial. The Prosecutor submitted that accredited certifiers occupy a significant role in the scheme of the EP&A Act and are necessary for orderly development in NSW. The Prosecutor submitted the Defendant's failure to hold accreditation as required by the EP&A Act cannot be regarded as merely a technical breach of that Act. Given this the Prosecutor argued that there is a need for general deterrence in sentencing so that others will be sure that there is no failure on their part to obtain the certification required to issue Pt 4A certificates and also to ensure that there is community confidence in the scheme in the EP&A Act relating to private certifiers. I accept the Prosecutor's submission that it is an important part of the scheme allowing for private certification under the EP&A Act that certifiers be properly accredited. I therefore agree with the Prosecutor's submission that these offences are not trivial. Indeed I also note the Defendant did not submit the offences were trivial. I do, however, note that the Prosecutor did not submit that there were any aggravated factors as referred to in s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 in this case.

15 However, it is clear from the decisions of the Court of Criminal Appeal in R v Paris [2001] NSWCCA 83 and R v Piccin (No 2) [2001] NSWCCA 323 that it is not necessary that every factor under s 10(3) be found to exist before I can determine whether or not to make an order under s 10(1). In other words I can determine to apply s 10(1) of the Crimes (Sentencing Procedure) Act 1999 even if the offences are not trivial.

16 There are a number of matters relevant to the remaining matters under s 10(3) in relation to the Defendant's character, age, health, mental condition and the extenuating circumstances in which the offence was committed which suggest that I should make an order under s 10 and I will set out the reasons why I intend to do so.

17 I have before me substantial affidavit evidence from the Defendant himself, his treating doctor and the Defendant's daughter concerning the effects these charges have had on the Defendant. It is clear that the charges have had a catastrophic mental, emotional and financial impact on the Defendant and his family. I take into account the fact that the Defendant is fifty-five years of age and, other than these charges, is of good character. This is supported by a number of personal references and the fact that there are no other prior convictions before the Court.

18 Before embarking on a career as a private certifier the Defendant worked in various positions in local councils from 1975 to 1999, including in senior positions. In 1999 the Defendant decided to embark on a business as a private certifier and ultimately started his own business, Sure Fire Building Certifiers, which commenced operations from February 2001. The Defendant operated this business up until the time he realised, in the second half of 2003, that he was no longer accredited to act as an accredited certifier under the EP&A Act.

19 In my view the actions of the Defendant in issuing the Pt 4A certificates the subject of these offences were ill considered at best. However, I agree with the submissions of the Defendant's counsel that the Defendant's actions were not deliberately intended to undermine the scheme of the EP&A Act. Nor was there any suggestion or evidence that the Defendant's work which led to these six charges was inadequate or that the Defendant was, at the time the certification lapsed, ineligible for re-certification.

20 I also accept the Defendant's evidence that, prior to being contacted by the Department, he was under the mistaken belief that his certification under the NSW scheme had not yet lapsed. I consider this is evidenced by the fact that he maintained his professional indemnity insurance, which is a necessary pre-requisite for accreditation, throughout the period he was working as a private certifier, including the period when his accreditation had in fact lapsed.

21 The Defendant has also had a number of difficulties in his personal circumstances with his wife suffering ill health following an accident in July 2001, his son having a bad back injury following an accident and the Defendant himself suffering from ill health. I accept the pressures on him were compounded by him taking on increasing amounts of work without administrative assistance in circumstances where he had not before had any experience of private practice.

22 I am also informed that having realised that his accreditation had lapsed the Defendant applied for re-accreditation on 9 September 2003. In the following week it is his evidence that he attempted suicide twice and was thereafter admitted to hospital for treatment. Following a letter from the Department, the Defendant undertook not to issue further certifications on 22 September 2003 and ceased operating his business as a private certifier. Following amendments made to the accreditation regime contained in the EP&A Act and the Environmental Planning and Assessment Regulations 2000 the Defendant's application for re-accreditation was refused by the Department and the Defendant is not currently able to work as a private certifier at all.

23 I consider that, in these circumstances, the factors under s 10(3)(i) and (iii) in particular apply and that no conviction should be recorded against the Defendant and I will make formal orders to that effect.

Costs 24 I must also deal with the matter of costs. Under s 253(1)(c) of the Criminal Procedure Act (1986) the Court may order an accused person to pay the Prosecutor's costs if an order under s 10 of the Crimes (Sentencing Procedure) Act 1999 is made. The Prosecutor is seeking its costs in relation to this prosecution but this is opposed by the Defendant's counsel who submits that each party should pay its own costs. The Defendant's counsel relied on Latoudis v Casey (1990) 170 CLR 534 to submit that it is not appropriate that an award of costs be made in this case as the Defendant does not have the financial means to pay such an award of costs, and an award of costs is intended to be compensatory rather than punitive.

25 I have affidavit evidence as to the Defendant's means before me. He has had to sell his house and presently lives in rental accommodation with his family. He has substantial debts owing as a result of his business as a private certifier folding and he has had to borrow money from his family to pay for living expenses. While currently working for Gosford City Council, his income has been substantially reduced since his business as a private certifier ceased.

26 I was referred to a decision also by the Defendant's counsel of Pearlman J in the matter of Morrison v Peacock and Roslyndale Shipping Company Pty Ltd [2003] NSWLEC 68 and this was said to support an argument that in appropriate cases the Court will make no order as to costs in favour of a successful Prosecutor. I have to say however that the facts of that case are not directly applicable here.

27 The usual approach in these circumstances in this Court is that costs generally would be ordered in favour of the Prosecutor. The inability of the Defendant to pay is not a reason why the Prosecutor should not get an order for costs. I therefore think it is appropriate that I do make an order for costs in the Prosecutor's favour. I can say however that, on the evidence before me as to the Defendant's means, it would appear there is little utility in the Prosecutor seeking to enforce that order.

Orders 28 The Court makes the following orders: 1. The offences with which the Defendant is charged are proved. 2. Without proceeding to a conviction the Court directs that the relevant charge be dismissed pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999. 3. The Defendant is ordered to pay the Prosecutor's costs as agreed or assessed. 4. The exhibits except exhibit A may be returned.

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