Musial v Penrith City Council - [2022] NSWLEC 134 - NSWLEC 2022 case summary — Zoe

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Musial v Penrith City Council

[2022] NSWLEC 134

Land and Environment Court (NSW)|2022-11-14|Before: Moore J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2022-11-14

Before

Moore J

Catchwords

[2013] NSWLEC 51 Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd (2013) 199 LGERA 236
[2006] NSWLEC 419 Harris v Harrison [2014] NSWCCA 84 Hoare v The Queen (1989) 167 CLR 348
[1989] HCA 33 Markarian v R (2005) 229 CLR 357
[2005] HCA 25 Plath v Rawson (2009) 170 LGERA 253

Source

Original judgment source is linked above.

Catchwords

[2013] NSWLEC 51 Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd (2013) 199 LGERA 236[2006] NSWLEC 419 Harris v Harrison [2014] NSWCCA 84 Hoare v The Queen (1989) 167 CLR 348[1989] HCA 33 Markarian v R (2005) 229 CLR 357[2005] HCA 25 Plath v Rawson (2009) 170 LGERA 253[2009] NSWLEC 178 R v Olbrich (1999) 199 CLR 270[1999] HCA 54 R v O'Neill (1979) 2 NSWLR 582 R v ThomsonR v Houlton (2000) 49 NSWLR 383[2000] NSWCCA 383 The Queen v De Simoni (1981) 147 CLR 383[1981] HCA 31 Transport for NSW v East Coast Wharf Constructions Pty LtdTransport for NSW v King [2020] NSWLEC 112 Veen v The Queen (1979) 143 CLR 458[1979] HCA 7 Veen v The Queen (No 2) (1988) 164 CLR 465[1988] HCA 14 Walden v Hensler (1987)163 CLR 561

Judgment (51 paragraphs)

[1]

Introduction

Mr Marian Musial owns a property at 87‑95 Bennett Road, Londonderry (the site). The property is located in a semi‑rural area within the local government area administered by Penrith City Council (the Prosecutor).
The site is partially zoned E2 Environmental Conservation and partially zoned RU4 Primary Production Small Lots pursuant to the Penrith Local Environmental Plan 2010 (the LEP). Development for the purposes of a "waste or resource transfer station" is prohibited for these zones by operation of the provisions in the Land Use Table of the LEP.
Mr Musial operated a business dealing with scrap metal and second‑hand motor vehicles and motor vehicle parts on the site, being a business classified as "waste or resource transfer station". This term is defined in the LEP as follows: waste or resource transfer station means a building or place used for the collection and transfer of waste material or resources, including the receipt, sorting, compacting, temporary storage and distribution of waste or resources and the loading or unloading of waste or resources onto or from road or rail transport.
Mr Musial's business activities were thus prohibited from being conducted on the site. On 22 February 2021, the Prosecutor issued Mr Musial with a Development Control Order pursuant to s 9.34(1)(a) of the Environmental Planning and Assessment Act 1979 (the EPA Act) requiring him to cease the prohibited use which he was carrying out on the site.
The order given to Mr Musial was Order 1 in Pt 1 General Orders in Sch 5 to the EPA Act. The terms of the order required him to stop using his site for the prohibited purpose (being the conduct of a "waste or resource transfer station").
The first of the compliance terms of the order was: 1 Cease the importation of cars, car parts, scrap metals and household waste items onto the premises.
The timeframe for compliance with this element of the order was "immediately" (the order being dated 22 February 2021).
The second of the compliance terms of the order was: 1 Remove all materials (including but not limited to vehicles, car parts, bikes, scrap metal, plastics, household waste items and always materials) from Area 2 highlighted on map 1 from the premises.
The timeframe for compliance with this second element of the order was by Monday 9 May 2021.
A marked air photo was appended to the order identifying Area 2 for the purposes of the clearance requirement. A copy of that aerial image (extracted from Exhibit B, folio 59) is appended as Annexure A to this decision.
Over a period of three days in March 2021 (11, 12 and 14 March), Mr Andrew Reece, an authorised officer of the Prosecutor, obtained images (using a fixed, battery‑powered surveillance camera located at the entrance to the site) demonstrating that Mr Musial had brought material to the site in a cage affixed to the back of his tray‑back vehicle. The material disclosed in the photographs taken by the surveillance camera reveal that the material imported to the site was consistent with being described as "scrap metal and/or automotive parts" (being material for the purposes of the prohibited use and being brought onto the site in breach of the Prosecutor's Development Control Order).
The Prosecutor caused three court attendance notices (CANs) to be issued to Mr Musial. The CANs related to each of the days for which Mr Reece had obtained the relevant photographic surveillance evidence.
On 8 April 2022, Mr Musial appeared before Magistrate Toose at Penrith Local Court in response to the CANs. Mr Musial pleaded guilty to the three offences with which he had been charged. The photographic surveillance evidence and other relevant documentary material were in evidence before the Magistrate on that occasion. The maximum penalty available to be imposed by the Local Court (as later discussed in more detail) for Mr Musial's breaches of the Prosecutor's Development Control Order was $110,000.
Mr Musial was convicted and fined $30,000 on each of the three charges and ordered to pay $1,200 as the Prosecutor's costs of the prosecutions.
Mr Musial now appeals to this Court, pursuant to s 31 of the Crimes (Appeal and Review) Act 2001 (the Appeal Act), against the severity of the sentences imposed on him in the Local Court.
However, in the present context, it is essential to note not only that Mr Musial has maintained, in this Court, his guilty pleas to the three offences to which he had pleaded guilty before the Local Court, but also what is not encompassed by the charges to which those pleas have been entered and maintained.
The three charges are ones which have, as their foundation, Mr Musial transporting material onto the site on each of the three nominated dates, at hearing being as depicted in the photographic surveillance evidence obtained by the authorised officer of the Prosecutor on each of those three days. Those charges can only be founded on the alleged (and acknowledged by Mr Musial) breaches of the first of the elements of the Development Control Order served on him, namely, that he not import material of the nature which he did import onto the site.
He was not charged with any breach of the second element of the Development Control Order, namely, that he was required to remove the accumulated material on the site by Monday 9 May 2021. The absence of any such charge, in the present context, is unsurprising given that the specified compliance date in the removal order had not expired as at the date when Mr Musial imported the further material onto the site in breach of the first element of the order.
Whilst the evidence presented to the learned Magistrate (and tendered before me) includes photographs which are somewhat confronting as to the extent of the accumulated material stored on the site by Mr Musial (and which he had been ordered to remove from the site), those photographs are not relevant to the offences to which he has pleaded guilty in these proceedings.
Although it is accepted by the Prosecutor that Mr Musial has removed over 148 tonnes of material from the site as required by element 2 of the Development Control Order of 22 February 2021, that is not a matter relevant to Mr Musial's guilt of the three charges which are the subject of these appeals. It is, however, a factor to be taken into account in this sentencing process, as later discussed.

[4]

The EPA Act

The Prosecutor's ability to issue a Development Control Order requiring Mr Musial to refrain from carrying out the prohibited activities on the site is given by s 9.34 of the EPA Act. This provision is in the following terms: 9.34 Orders that may be given (1) The development control orders that may be given under this Act are as follows - (a) general orders in accordance with the table to Pt 1 of Schedule 5,
The power to prosecute for breach of a development control order is conferred by s 9.37 of the EPA Act, a provision in the following terms: 9.37 Failure to comply with order - offence (1) A person to whom a development control order is given or is taken to have been given must comply with the terms of the order. (2) It is a sufficient defence to a prosecution for an offence against this section if the defendant satisfies the court that the defendant was unaware of the fact that the matter in respect of which the offence arose was the subject of an order. Maximum penalty - Tier 1 monetary penalty.
The maximum penalty for a breach of s 9.37 is set by s 9.52 of the EPA Act, a provision in the following terms: 9.52 Maximum penalty - Tier 1 (1) If Tier 1 is specified as the maximum monetary penalty at the end of a provision (or a number of provisions) of this Act, a person who contravenes or fails to comply with that provision (or those provisions) is guilty of an offence and (subject to subsection (2)) liable to a penalty not exceeding - (a) in the case of a corporation - (i) $5 million, and (ii) for a continuing offence - a further $50,000 for each day the offence continues, or (b) in the case of an individual - (i) $1 million, and (ii) for a continuing offence - a further $10,000 for each day the offence continues. (2) A Tier 1 maximum monetary penalty applies only if the prosecution establishes (to the criminal standard of proof) - (a) that the offence was committed intentionally, and (b) that the offence - (i) caused or was likely to cause significant harm to the environment, or (ii) caused the death of or serious injury or illness to a person. For the Tier 1 maximum monetary penalty to apply, the court attendance notice or application commencing the proceedings must allege that those factors apply to the commission of the offence. (3) If a Tier 1 maximum monetary penalty is specified in this Act but does not apply because of subsection (2), then a Tier 2 maximum penalty applies instead.
As can be seen, although the maximum penalty for the offence is as set out above, the jurisdictional limit of the Local Court when dealing with such offences is limited, by virtue of the provision, to a maximum of $110,000 (by virtue of the value of a penalty unit being set at $110 by s 17 of the Sentencing Procedure Act set out later). 9.57 Proceedings for offences (1) Proceedings for an offence against this Act may be taken before the Local Court or before the Court in its summary jurisdiction. (2) … (3) If proceedings in respect of an offence against this Act are brought in the Local Court, the maximum monetary penalty that the court may impose in respect of the offence is, notwithstanding any other provisions of this Act, 1,000 penalty units or the maximum monetary penalty provided by this Act in respect of the offence, whichever is the lesser.

[6]

The Sentencing Procedure Act

The Sentencing Procedure Act sets out, in s 3A, the purposes for which sentencing is to be undertaken. This provision is in the following terms: 3A Purposes of sentencing 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.
The Sentencing Procedure Act next sets out, in s 17, the value to be ascribed to a penalty unit. This provision is in the following terms: 17 Penalty units Unless the contrary intention appears, a reference in any Act or statutory rule to a number of penalty units (whether fractional or whole) is taken to be a reference to an amount of money equal to the amount obtained by multiplying $110 by that number of penalty units.
The Sentencing Procedure Act also sets out, in s 21A(2) and (3), matters required to be considered when sentencing at first instance (and, here, on appeal) for the offences to which Mr Musial has pleaded guilty. Not all elements of these provisions are here relevant. The relevant elements of the two provisions are in the following terms: 21A Aggravating, mitigating and other factors in sentencing (1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters - (a) the aggravating factors referred to in subsection (2) that are relevant and known to the court, (b) the mitigating factors referred to in subsection (3) that are relevant and known to the court, (c) any other objective or subjective factor that affects the relative seriousness of the offence. The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law. (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows - (a)‑(n) …, (o) the offence was committed for financial gain, (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows - (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, (b)‑(d) …, (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re‑offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) the remorse shown by the offender for the offence, but only if - (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), (j) …, (k) a plea of guilty by the offender (as provided by section 22 or Division 1A), (l) …, (m) assistance by the offender to law enforcement authorities (as provided by section 23), (n) …
Finally, s 22 of the Sentencing Procedure Act requires me to take into account Mr Musial's entry of pleas of guilty to the three offences with which he had been charged by the prosecutor. This provision is in the following terms: 22 Guilty plea to be taken into account for offences not dealt with on indictment (1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account - (a) the fact that the offender has pleaded guilty, and (b) when the offender pleaded guilty or indicated an intention to plead guilty, and (c) the circumstances in which the offender indicated an intention to plead guilty, and may accordingly impose a lesser penalty than it would otherwise have imposed. (1A) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.

[11]

Introduction

The evidence in these appeals' proceedings comprised the documentary material that was before the Local Court, together with additional material provided by Mr Musial in support of his appeals. Mr Musial's primary documentary material was annexed to an affidavit deposed by Mr Musial dated 26 October 2022 or in the Appeal Book (Exhibit B).
Mr Musial also deposed a second affidavit dated 13 November 2022. Mr Musial's first affidavit was read without objection (noting that the final two paragraphs of the affidavit were not pressed). Mr Musial's second affidavit was also read without objection. Mr Musial was required for cross‑examination. I later discuss his oral evidence.
In addition to the Appeal Book, two further separate elements of documentary evidence were tendered on Mr Musial's behalf. These were: 1. Exhibit A ‑ the transcript of the hearing before the Local Court on 8 April 2022; and 2. Exhibit C ‑ two documents (one dated 11 March 2022 and one dated 15 January 2022) recording that Mr Musial had provided a total of a little over 33,000 kilograms of damaged plastic bumper bars to JK Plastics Pty Ltd at Seven Hills.
It is to be noted that the Prosecutor had served a subpoena to produce on Mr Musial (a subpoena filed on 4 November 2022 and returnable on 11 November 2022). The subpoena required Mr Musial to produce the following documents: 1. The tax returns for Marian Musial for financial years ending on 30 June 2021 and 30 June 2022; 2. All documents comprising bank statements of all bank accounts held by Marian Musial or which Marian Musial holds jointly with others in the period 1 July 2022 date; 3. All documents comprising any credit card statements in respect to any credit cards held by Marian Musial or which Marian Musial holds jointly with others in the period 1 July 2020 to date; 4. All documents including, but not limited to, invoices and receipts recording the revenue derived or earned by Marian Musial from the conduct of the scrap metal business operating at 87‑95 Bennett Road, Londonderry NSW from 1 July 2022 to date; 5. All documents recording mortgage statements in relation to any mortgages in respect to which Marian Musial is the mortgagor/borrower in relation to the mortgage referred to at paragraph 14 of the affidavit of Marian Musial sworn 26 October 2022 and filed in these proceedings.
A copy of the subpoena was tendered by the Prosecutor, becoming Exhibit 4.
A number of other documents relating to Mr Musial's affairs were also tendered by the Prosecutor. These were: 1. Exhibit 1 ‑ bank statements for an ANZ Business Account operated at the St Marys Branch of that bank; 2. Exhibit 2 ‑ an invoice from Mr Musial's car parts business (V&H Autos) dated 19 January 2021 to a company to which Mr Musial had supplied four tonnes of damaged bumper bars and had charged $550 for this; 3. Exhibit 3 ‑ a transaction account statement for Mr Musial's mortgage on his residential property showing that, as at 11 November 2022, there was an outstanding mortgage balance on that property of a little under $150,000; and 4. Exhibit 5 ‑ an Income Tax Account ‑ Statement of Account, dated 13 January 2020 issued by the Australian Taxation Office, showing an amount nominated on a payment slip, on the first page of the document, as having been paid by Mr Musial to the Australian Taxation Office. This document was identified by Mr Musial as constituting his taxation return for the year concluding 30 June 2019.

[12]

The hearing before the Local Court on 8 April 2022

It is to be noted, before turning to the terms of what is disclosed in the transcript of the hearing before the Local Court on 8 April 2022 (Exhibit A), that the task before me is not one of reviewing the decision‑making process of her Honour on that occasion, nor of commenting on the appropriateness of the sentences imposed by her Honour on that occasion. The process which I am undertaking in these proceedings is to sentence, afresh, Mr Musial for the three offences to which he had pleaded guilty before her Honour but with respect to which it is now submitted on his behalf that the penalties imposed were unduly severe.
Exhibit A was provided to me after the commencement of the hearing in response to a concern which I had raised with the Prosecutor that I had not been provided with a copy of the transcript and that, as a consequence, I was unable to be informed with respect to two matters of potential relevance for the resentencing process I was undertaking. Those two matters were: 1. The nature of the starting penalty which her Honour proposed and the discount which her Honour accorded to Mr Musial for the purposes of s 22 of the Sentencing Procedure Act. Although the transcript discloses that her Honour indicated that Mr Musial was entitled to a discount, by virtue of his pleas of guilty, but did not nominate the extent of the discount, nor the starting sentences to which it was to be applied; and 2. Her Honour did not address the question of whether or not the offences which took place on 11, 12 and 14 March 2021 should be regarded as comprising a single course of offending conduct and, if so, to what extent the penalties for the second and third of these offences should be moderated to reflect totality and accumulation if they were to be regarded as arising in a single course of offending conduct.
In this latter regard, I am not to be taken to be making any criticism of her Honour's decision‑making process, as no submission was advanced to her Honour on Mr Musial's behalf on that basis.
However, it is to be noted that, for the purposes of the resentencing process I am here undertaking, the question of the appropriate starting sentence to be imposed on Mr Musial for each of the offences; the appropriate discount to be applied to each of those appropriate starting sentences; and the extent to which totality and accumulation might mandate moderation of the resulting penalties for the second and third offences are matters which I will now need to consider and address in this decision.

[21]

A factor of aggravation

I turn, first, to consider the extent to which Mr Musial committed the three elements of offending conduct for financial gain (s 21A(2)(o)). If established, this is a factor of aggravation to be taken into account in my sentencing consideration.
In this context, it is appropriate to note the terms of paragraphs 9 and 10 of Mr Musial's affidavit of 26 October 2022. These paragraphs, relevantly, are in the following terms: 9 I confirm that the material brought onto the premises which was the subject of the Development Control Order was further car parts, scrap metal and household waste items. 10 I estimate that the maximum value of the material brought onto the premises in breach of the development control order was approximately $1,225.00.
Mr Musial then set out how he calculated that estimate. The accuracy of that estimate is not contested by the Prosecutor.
As consequence, on the basis of Mr Musial's own evidence, I am satisfied that his offending conduct is to be regarded as having been committed for financial gain and that, therefore, the factor of aggravation in s 21A(2)(o) has been established. However, given the comparatively modest amount of the financial gain (quantified by having regard to the value of the materials imported to the site), I am satisfied that this factor of aggravation does not weigh significantly against Mr Musial in my resentencing consideration.
During the course of his oral submissions, the Prosecutor proposed that I should have regard to the fact that Mr Musial had been conducting his car parts and scrap metal business on the site for a considerable period of time. I am unable to accept that proposition.
Although I am satisfied that Mr Musial's offending conduct had been carried out as a consequence of his car parts and scrap metal business on the site, he is being prosecuted here for his conduct on 11, 12 and 14 March 2021 in breach of Order 1 of the Development Control Order issued to him on 22 February 2022 and not for some larger, more global offence of carrying out a prohibited use on the site for some extended period of time.

[23]

Environmental harm ‑ s 21A(3)(a)

The first relevant factor (s 21A(3)(a)) is the extent of the harm caused by Mr Musial's offending conduct.
Preston CJ set out, under the heading "Objective harmfulness of offence", in Environment Protection Authority v Waste Recycling and Processing Company (2006) 148 LGERA 299; [2006] NSWLEC 419 (Waste Recycling) (at [145]), a number of principles. The first of them, relevant in these proceedings, is that: Harmfulness needs to not only be considered in terms of actual harm, the potential or risk of harm should also be taken into account.
In this context, a letter of 2 June 2021 from the District Officer of the NSW Rural Fire Service (the RFS) to an officer of the Prosecutor formed Annexure D to the Agreed Facts Sheet before the Local Court. The Agreed Facts Sheet (including Annexure D) is in evidence before me as Tab 14 of Exhibit A.
It is appropriate to reproduce the first three paragraphs of this letter from the RFS. They were in the following terms: The NSW Rural Fire Service has identified that 87 Bennett Road Londonderry, poses an immediate and significant fire threat due to the excessive storage of waste materials and car parts. The entire property is full with plastic car bumpers and car parts, which provides a significant fuel source that would be ignited in a bushfire endangering neighbouring properties and the environment. The nature of the materials would produce toxic smoke reducing the ability of the NSW RFS from dealing with a fire on the property. This type of activity should be located in an industrial area where there is [sic] significant resources to deal with such an incident. The rural location and the composition of the waste stored on the property would provide significant challenges as the fire would likely burn for an extensive period and would require large amounts of water. As the property is located on a creek line, this would cause a pollution event from the contaminated water used to suppress the Fire.
It was submitted on Mr Musial's behalf that I should have regard to paragraph 9 of Mr Musial's affidavit of 13 November 2022, a paragraph in the following terms: 9 At the time I brought the material onto my property, I did not appreciate the materials would make putting out a fire at my property more difficult. In fact, I never thought about what would happen if there was a fire. I only realised the possible risk to the environment. I was causing after seeing the letter from the NSW Rural Fire Service, dated 2 June 2021. From that letter, I acknowledge that in the event of a bushfire, the car parts, including plastic bumper bars, would ignite and potentially exacerbate the damage the bushfire would cause compared to if I did not have the material on my property. For that I am especially remorseful and relieved that there has not been a fire.
On Mr Musial's behalf, it was submitted that the fact that the RFS letter was after the date of the offending conduct was a factor that I should take into account for present purposes in circumstances where Mr Musial, as deposed above, had not been aware of the fire‑risk potential of the storage of material on his property. It was also submitted that the additional material which had been imported to the property on the occasions for which the charged offending conduct had occurred meant that the volume imported would not have significantly increased the bushfire risk of the materials stored on his property when regard was had to the volume of such material already located there prior to the importation.
The above paragraph extracted from Mr Musial's affidavit is also a matter requiring subsequent consideration in the context of s 21A(3)(i) of the Sentencing Procedure Act.
Whilst I accept that the impact of the importation of each of the three loads of material breach of Order 1 of the Development Control Order would not, in and of itself, have caused actual environmental harm or significant increase in the fire risk, nonetheless, those breaches also undermine the integrity of the regulatory regime established by the Land Use Table in the LEP (a statutory land use planning instrument created pursuant to the EPA Act). That undermining of such a regulatory regime, even in the absence of actual harm arising from the unlawful activities, has been confirmed by the Court of Criminal Appeal in Budvalt Pty Ltd v Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2022] NSWCCA 9 as being a factor capable of being taken into account when sentencing for a breach or breaches of such a regulatory regime as is here the position.
There is no suggestion that Mr Musial was unaware of the requirements of Order 1 (indeed, the evidence is that he was aware of and had consented to its terms). As a consequence, this course of conduct is demonstrative of a willingness to undermine the regulatory regime established by the EPA Act to control and prevent breaches of the planning regime in the fashion demonstrated by Mr Musial's conducting the prohibited activity of operating a "waste or resource transfer station" on the site.
In making this observation concerning Mr Musial's course of conduct in the context of this element of the Sentencing Procedure Act, it will also be necessary, for countervailing reasons, to consider, in my assessment of overall penalty to be imposed on Mr Musial, the extent to which totality and accumulation of the three penalties for this single course of conduct should be taken into account.
Taken together, the combination of the fire risk and the undermining of the environmental planning regime mean that the harm and risk of harm, taken together, caused by Mr Musial's conduct cannot be regarded as trivial.

[28]

Contrition and remorse ‑ s 21A(3)(i)

In Chief Executive, Office of Environment and Heritage v Ausgrid (2013) 199 LGERA 1; [2013] NSWLEC 51, at [80], Pepper J summarised the four types of action set out by Preston CJ in Waste Recycling as ones which may demonstrate genuine contrition and remorse in satisfaction of these requirements [citations excluded]: (a) first, the speed and efficiency of action rectifying the harm caused or likely to continue to be caused by the commission of the offence; (b) second, the voluntary reporting of the commission of the offence and any consequential environmental harm to the authorities; (c) third, taking action to address the cause of the offence; and (d) fourth, the personal appearance of corporate executives in court to give personal evidence of the Defendant's regret and a plan of action to avoid repetition of the offence.
Mr Musial was present in court throughout the appeal hearing and was, therefore, available for cross‑examination by the Prosecutor as required.
Mr Musial also provided a letter to the Magistrate outlining his personal circumstances and expressing his contrition and remorse for his offending conduct. That letter is in evidence in this appeal (Exhibit B, Tab 13).
I have also, earlier, quoted paragraph 9 of Mr Musial's second affidavit, a paragraph in which he expressed further remorse for his offending conduct. This expression of remorse was in addition to that which was set out in his letter tendered to her Honour for the Local Court sentencing proceedings noted above.
Also, I am satisfied that the preparedness of Mr Musial now to comply with the remedial actions necessary to remove the very significant accumulation of waste materials from the site is also demonstrative of genuine contrition and remorse.
Whilst element 2 of the Development Control Order required that the site be cleared (with respect to prohibited material in the Area A shown in Annexure A to this decision), it is also evident that the extent of the car parts and scrap metal stored on the site extends significantly beyond the material in Area A which had been ordered to be removed by element 2 of the Development Control Order.
Mr Koikas advised me (without objection being raised by the Prosecutor) that the Prosecutor had also commenced separate Class 4 proceedings against Mr Musial with respect to the remaining portions of the site where car parts and scrap metal were stored. He advised me that, in those Class 4 proceedings, an agreement was in the process of being finalised which would impose an obligation on Mr Musial to remove all the remaining prohibited material from the site. Mr Koikas submitted that this was also a factor to be taken into account in Mr Musial's favour.
Although such agreement will arise out of those separate Class 4 civil enforcement proceedings, I am satisfied that this is a (minor) matter to be taken into account in Mr Musial's favour as demonstrating a further, very modest element of contrition and remorse.

[49]

Mr Musial's capacity to pay fines

The Appeal Book contains evidence advanced on Mr Musial's behalf said to demonstrate his limited financial means to pay such penalties as might be imposed for his offending conduct.
Although it is to be accepted that, on the basis of such incomplete financial records as have been produced by Mr Musial and on the basis of his evidence (written and oral) as to his needing financial assistance from relatives and friends to meet his ongoing living expenses, it is to be concluded that Mr Musial can be regarded as being "cash poor".
However, as elicited by the Prosecutor during the course of Mr Musial's oral evidence, Mr Musial has equity in two properties ‑ being the unencumbered site at Londonderry and his residence at Toongabbie (a residence which, although subject to a mortgage, is a property in which the evidence discloses that Mr Musial has significant equity).
In this regard, the Prosecutor submitted that the conclusion which I had drawn in Transport for NSW v East Coast Wharf Constructions Pty Ltd; Transport for NSW v King [2020] NSWLEC 112 as to the inadequacy of the disclosure of financial records was equally applicable to the position here requiring consideration concerning Mr Musial's financial position.
To that extent, for the reasons discussed by me in Wollongong City Council v Eldridge [2017] NSWLEC 35 at [204] and [205], the information disclosed does not provide any proper basis upon which I can conclude, with confidence, that Mr Musial's financial circumstances properly engage s 6 of the Fines Act in a fashion that would warrant me moderating the penalties which would otherwise be applicable for each of the offences to which he has pleaded guilty.
Taking Mr Musial's financial records and his written and oral evidence at its highest in his favour for the purposes of the application made on his behalf that any penalty to be imposed on him should be moderated by operation of s 6 of the Fines Act, I am unable to accept that there is any proper basis upon which I should do so.
The uncontested evidence is that Mr Musial has substantial real estate equity and there is no evidence as to why that equity was not possible to be availed of for the purposes of paying such penalties as I conclude are appropriate to be imposed for his offending conduct. Indeed, given that the site at Londonderry is to be completely cleared of car parts, scrap metal and other waste(noting that substantial progress has already been made in this regard) and that Mr Musial is prohibited from running a business from the site in the fashion he has in the past, there would appear to be no barrier to Mr Musial liquidating this asset, if necessary, for the purposes of payment of the penalties to be imposed on him.

[50]

Orders

The orders of the Court are: 1. In Matter No 128431 of 2022: 1. The appeal is upheld; 2. The penalty of $30,000 imposed by the Local Court for the Defendant's breach of development control Order 1 of 22 February 2021 issued by the Prosecutor pursuant to s 9.34 of the Environmental Planning and Assessment Act 1979 by the Defendant's importation of cars, car parts, scrap metals and household waste items to 87‑95 Bennett Road, Londonderry on 11 March 2021, is set aside; 3. In lieu thereof, the Defendant is fined $18,000; 4. The order of the Local Court that the Defendant pay the Prosecutor's costs of $1,200 in the Local Court is not set aside; 5. There is no order for costs in this appeal proceedings to the effect that each party will bear their own costs of the appeal; and 6. The exhibits are returned. 1. In Matter No 128432 of 2022: 1. The appeal is upheld; 2. The penalty of $30,000 imposed by the Local Court for the Defendant's breach of development control Order 1 of 22 February 2021 issued by the Prosecutor pursuant to s 9.34 of the Environmental Planning and Assessment Act 1979 by the Defendant's importation of cars, car parts, scrap metals and household waste items to 87‑95 Bennett Road, Londonderry on 12 March 2021, is set aside; 3. In lieu thereof, the Defendant is fined $16,500; 4. The order of the Local Court that the Defendant pay the Prosecutor's costs of $1,200 in the Local Court is not set aside; 5. There is no order for costs in this appeal proceedings to the effect that each party will bear their own costs of the appeal; and 6. The exhibits are returned. 1. In Matter No 128433 of 2022: 1. The appeal is upheld; 2. The penalty of $30,000 imposed by the Local Court for the Defendant's breach of development control Order 1 of 22 February 2021 issued by the Prosecutor pursuant to s 9.34 of the Environmental Planning and Assessment Act 1979 by the Defendant's importation of cars, car parts, scrap metals and household waste items to 87‑95 Bennett Road, Londonderry on 14 March 2021, is set aside; 3. In lieu thereof, the Defendant is fined $15,000; 4. The order of the Local Court that the Defendant pay the Prosecutor's costs of $1,200 in the Local Court is not set aside; 5. There is no order for costs in this appeal proceedings to the effect that each party will bear their own costs of the appeal; and 6. The exhibits are returned.

Parties

Applicant/Plaintiff:

Musial

Respondent/Defendant:

Penrith City Council

Cases Cited (31)

0 Cases Cited: Budvalt Pty Ltd v Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2022] NSWCCA 9 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Chief Executive, Office of Environment and Heritage v Ausgrid (2013) 199 LGERA 1; [2013] NSWLEC 51 Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd (2013) 199 LGERA 236; [2013] NSWLEC 185 Environment Protection Authority v Barnes (2006) NSWCCA 246 Environment Protection Authority v Timber Industries Ltd [2001] NSWLEC 25 Environment Protection Authority v Waste Recycling and Processing Company (2006) 148 LGERA 299; [2006] NSWLEC 419 Harris v Harrison [2014] NSWCCA 84 Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 Markarian v R (2005) 229 CLR 357; [2005] HCA 25 Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v O'Neill (1979) 2 NSWLR 582 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 383 The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 Transport for NSW v East Coast Wharf Constructions Pty Ltd; Transport for NSW v King [2020] NSWLEC 112 Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Walden v Hensler (1987)163 CLR 561; [1987] HCA 54 Wollongong City Council v Eldridge [2017] NSWLEC 35 Category: Principal judgment Parties: Marian Musial (Appellant) Penrith City Council (Prosecutor) Representation: Counsel: Mr C Koikas, barrister (Appellant) Mr P Boncardo, barrister (Prosecutor)

[2005] HCA 25

(1993) 32 NSWLR 683

(2013) 199 LGERA 1

(2013) 199 LGERA 236

(2006) 148 LGERA 299

(1989) 167 CLR 348

(2005) 229 CLR 357

(2009) 170 LGERA 253

(1999) 199 CLR 270

(1979) 2 NSWLR 582

(2000) 49 NSWLR 383

(1981) 147 CLR 383