Solicitors:
Stewart and Associates (Appellant)
North Sydney Council (Respondent)
File Number(s): 60993 of 201561002 of 2015
Decision under appeal Court or tribunal: Downing Centre Local Court
Jurisdiction: Criminal
Date of Decision: 12 October 2015
Before: Magistrate Mottley
File Number(s): 2015/00276937
2015/00276953
[2]
Introduction
These are two appeals in Class 6 of the Court's jurisdiction against the severity of penalties imposed by the Local Court.
It would appear that leave to appeal out of time may be required in at least one case and the Prosecutor did not oppose the grant of that leave. I dispensed with the need for a written Notice of Motion, and will grant any necessary leave.
The appeals concern charges brought in respect of the temporary parking of heavy vehicles on prominent roadways (Miller and McLaren Streets) near an excavation/construction site for a 17 storey building in the mainly commercial area of North Sydney, in the vicinity of a major private school (Monte Sant' Angelo Mercy College).
There were two incidents on the same day, 7 November 2014.
One incident occurred at 7:20am while clearway restrictions applied in Miller St, and involved one truck and bogey parked at the kerb (photographs in Appeal Book, pp15 and 16).
The second occurred at 1:00pm in McLaren St and involved one or possibly two trucks with bogeys, double parked alongside cars parked at the kerb (photographs at Appeal Book, pp17 and 18).
It is important to note that the appellant, the principal contractor on the project, is charged not with parking or traffic offences, but with breaching the terms and conditions of its development consent, on each occasion. Each such offence carries a maximum penalty of $1.1M.
[3]
The Consent
The consent is before the Court on this appeal. Its Construction and Traffic Management Plan is designed to "ensure the proper and safe movement of trucks and other vehicles on the light traffic roads in and around the subject site (and residential properties)" (Appeal Book, p12). Relevant conditions are 8, 9, 10, and 11 (Appeal Book, p45). They provide:
8. At no time shall Angelo Street, Pacific Highway or any other road be blocked by any vehicle or works associated with the construction of the proposed development. Through traffic is to be maintained at all times.
9. Angelo Street, Pacific Highway or any other road are not to be used as a waiting area for trucks delivering to or awaiting pick up of materials etc. from the proposed development.
10. Construction vehicles are not to queue in Angelo Street, Pacific Highway or any other road.
11. Any approved Works Zone is to be used only to pick up and drop off materials and equipment. Construction vehicles are not to wait or park in the Works Zone.
For completeness, the Prosecutor also drew my attention to conditions 21 and 22 (p45) and E13 (Exhibit C1). E13 stipulates the hours and days allowed for demolition, excavation and construction works; 22 requires a register to be kept on-site of drivers' and vehicle particulars, and 21 requires that:
A traffic route map and conditions are to be made available to truck drivers engaged for this development.
The Court notes that the final conditions were put in place not long before the date of the offences.
[4]
The Local Court Hearing
The Prosecutor submitted ("Facts" at Appeal Book, p14) that the seriousness of the offences was "moderate". The Court has before it the transcripts of the proceedings in the Local Court.
The appellant's solicitor (Mr Stewart) put orally to that Court (Exhibit M2) that its jurisdictional limit ($110,000) is "reserved for the most extreme cases for example pollute waters and other serious matters of that nature"; that the trucks were "stopped momentarily"; and that there was no blocking of or disruption to vehicle and pedestrian traffic, and no safety concern.
He said "these two offences are at the lowest end of the objective seriousness scale ...", and submitted that they should "be dealt with by way of section 10".
He also submitted that the pleas of guilty were "entered at the earliest available opportunity having known the particulars of the offence at the time".
In her sentencing remarks, the learned Magistrate said (Appeal Book, p11 - Tp3, LL28 - 42):
In terms of the outcome of the case, I note there was an election made to have the matter dealt with at Court to ventilate the submissions that could not otherwise be made with the issue of a penalty notice. It is against the maximum penalty, not just the jurisdictional limit, that the Court has to make a finding in respect of the offence. I note the offences were committed approximately a month after the final approval was given. One can only hope that since that approval has been granted that there's been no further incidence (sic).
Penalties are designed to deter. In relation to the company, I am of the view conviction should be recorded. I note the two offences and I note the short period of time after the consent was given that the offences were committed.
IN RELATION TO EACH OF THE MATTERS, CONVICTIONS WILL BE RECORDED. FINES WILL BE IMPOSED. THE AMOUNT OF THE FINE ON EACH WILL BE $11,000.
I note that in each case the penalty imposed was 1% of the maximum prescribed.
She also ordered payment of $500 as a "compromised" amount of the Council's professional costs (Appeal Book, pp14 and 20).
[5]
Consideration
The parties are agreed on the principles which apply to Class 6 appeals, and on the sentencing principles the Court must apply in deciding on the appropriateness of the sentences under appeal.
I need find no fault in the Magistrate's reasoning, and, in the absence of some appeal or application by the Prosecutor, I should not increase the fines imposed, when I consider the sentencing issues afresh.
In her sentencing remarks, the learned Magistrate did not refer to the granting of a discount for the appellant's early guilty pleas, nor to the fact that the appellant had no prior convictions.
She also did not mention applying, or not, the principle of totality (R v Holder [1983] 3 NSWLR 245, at 260 - 1; Camilleri's Stock Feeds Pty Ltd v Environmental Protection Authority [1993] 32 NSWLR 683, at 703 - 4), and she did not respond, in terms, to the s 10 application made by Mr Stewart.
However, it is clear that she had, before passing sentence, fully informed herself on all relevant matters to be considered, given the enormous pressure in a busy magistrate's court.
The question for the Court on this appeal is whether in all the circumstances of the two cases, taken together and viewed afresh, a "total" fine of $22,000, plus $500 costs, is appropriate (Environment Protection Authority v Bowport All Road Transport Pty Limited (No 2) ("Bowport") [2009] NSWLEC 180, at [29]).
I accept that the offending was neither deliberate, nor financially motivated, and that more inconvenience than danger or environmental harm was caused.
However, no explanation is advanced for the patently inadequate level of attention paid to the company's obligations under its consent, and there was a clear potential for serious harm to result.
I accept from both sides of the bar table that the offences have not recurred, meaning that specific deterrence is perhaps not really called for, but there is absolutely no evidence of contrition, other than counsel's remarks, which this Court has held is not sufficient: see, e.g., the discussion by the Chief Judge in Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; 148 LGERA 299, at [203] - [215].
General deterrence is always called for in cases of breach of consent.
Mr Fraser took me to a number of cases where breaches of consent, other than by wrongful disposition of vehicles and equipment, were punished by this Court's imposition of fines generally much higher, after discounts, than $22,000 (see Biscoe J's survey of cases in Manly Council v Van Norton [2015] NSWLEC 205, at [145] - [152]).
Having in mind Mr Stewart's comments to the Magistrate that these offences may not be as serious as water pollution cases, I remind the appellant that the Court has also dealt in Class 5 with a number of cases of serious air pollution caused by trucks. Two involved pleas of guilty:
1. In Environment Protection Authority v Vicary Corporation (unreported, 21 August 1997), Lloyd J arrived at a fine of $18,000, just under 14.5% of the then maximum of $125,000, and ordered costs of $5,500.
2. In Environment Protection Authority v Bruce Panucci Transport Pty Ltd (2003) 131 LGERA 119, Bignold J imposed a fine of $16,500, against a maximum of $44,000, allowing a global discount of 25%, and ordered costs of $12,000.
In Bowport, after a defended hearing on liability, I imposed five fines of $20,000, each reduced by 20% for "totality", making a total of $80,000, plus costs of $48,000.
As in Alramon Pty Limited v City of Ryde Council [2014] NSWLEC 100, I find myself in a position where I may well have arrived at a heavier total fine had I dealt with the case at first instance.
Accordingly, I have determined that these appeals should be dismissed, and I make the following orders:
1. The Court dispenses with the need for a written Notice of Motion for leave to appeal out of time, and, to the extent necessary, grants such leave.
2. In each matter, 60093 and 61002 of 2015, the appeal against severity is dismissed.
3. The penalties and costs order imposed by the Local Court are confirmed, as are the convictions.
4. The appellant is ordered to pay Council's costs of the appeal, as agreed or as assessed according to law.
5. Exhibit C1 may be returned to the Prosecutor.
I will shortly publish these reasons.
[6]
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Decision last updated: 22 April 2016