Musial v Penrith City Council

The appeal hearing

1. Mr C Koikas, barrister, represented Mr Musial and by Mr P Boncardo, barrister, represented the Prosecutor at the appeal hearing. The appeal hearing was conducted efficiently being completed in approximately half a day.

Introduction

1. Relevant provisions of various statutes are engaged by these appeals' proceedings. Those statues are: 1. The EPA Act; 2. The Appeal Act; 3. The Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act); 4. The Fines Act 1996 (the Fines Act); 5. The Criminal Procedure Act 1986 (the Criminal Procedure Act); and 6. The Local Government Act 1993 (the Local Government Act).

The EPA Act

1. 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,
2. 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.
3. 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.
4. 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.

The Appeal Act

1. Mr Musial's right of appeal to this Court against the sentences imposed on him by the learned Magistrate is created by s 31 of the Appeal Act, a provision in the following terms: 31 Appeals as of right (1) Any person who has been convicted or sentenced by the Local Court with respect to an environmental offence may appeal to the Land and Environment Court against the conviction or sentence. (1A) Subsection (1) does not apply in respect of a conviction if the person was convicted in the person's absence or following the person's plea of guilty. (2) An appeal must be made - (a) within 28 days after sentence is imposed, or (b) if an application for annulment of the conviction or sentence has been made under Part 2 within that 28‑day period, within 28 days after the Part 2 application is disposed of under that Part, but (in the case of an appeal against conviction) may not be made before sentence is imposed.
2. The powers of the Court when determining such an appeal are set out in s 39 of the Appeal Act: 39 Determination of appeals (1) The Land and Environment Court may determine an appeal against conviction - (a) by setting aside the conviction, or (b) by dismissing the appeal, or (c) in the case of an appeal made with leave under section 32 (1) - by setting aside the conviction and remitting the matter to the original Local Court for redetermination in accordance with any directions of the Land and Environment Court. (2) The Land and Environment Court may determine an appeal against sentence - (a) by setting aside the sentence, or (b) by varying the sentence, or (c) by dismissing the appeal. (3) The Land and Environment Court may determine an appeal against an order referred to in section 32 (2) (a) or (b) - (a) by setting aside the order and making such other order as it thinks just, or (b) by dismissing the appeal.

The Sentencing Procedure Act

1. 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.
2. 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.
3. 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) …
4. 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.

The Fines Act

1. The sole provision of the Fines Act requiring consideration is s 6, the provision which permits me to have regard to Mr Musial's capacity to pay penalties appropriate to be imposed on him for his breaches of the Development Control Order. This provision is in the following terms: 6 Consideration of accused's means to pay In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider - (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount.

The Local Government Act

1. It is to be noted that pursuant to s 694 of the Local Government Act, the penalties to be imposed on Mr Musial for his offending conduct accrue to the Council as the Prosecutor laying the charges against him. It is not necessary to set out this statutory provision.

The Criminal Procedure Act

1. Finally, it is appropriate to note that ss 257B and 257G of the Criminal Procedure Act provide the basis upon which the Prosecutor can be awarded its costs of prosecuting Mr Musial. Making a costs order is, obviously, contingent on the nature of the outcome of these appeals' proceedings.

The LEP

1. In addition, as earlier noted, the Land Use Table of the LEP is also engaged, as it sets out, in conventional form, those activities that are permitted without consent; permitted with development consent; and prohibited in the E2 and RU4 zones where the site is located. As earlier noted, Mr Musial's scrap metal and second‑hand motor vehicle parts' activities are to be characterised as being for a "waste or resource transfer station", a use which is prohibited in the two relevant zones. It is not necessary to reproduce the terms of the Land Use Table in the LEP applicable to these zones.

Introduction

1. 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).
2. 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.
3. 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.
4. 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.
5. A copy of the subpoena was tendered by the Prosecutor, becoming Exhibit 4.
6. 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.

The hearing before the Local Court on 8 April 2022

1. 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.
2. 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.
3. 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.
4. 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.

Introduction

1. As earlier noted, Mr Musial had deposed two affidavits which were read. Mr Musial was required by the Prosecutor for cross‑examination. Because English is not Mr Musial's primary language, his oral evidence was given with the assistance of a Polish language interpreter. A number of aspects of Mr Musial's oral evidence given during cross‑examination by the Prosecutor warrant being noted. These matters are set out below.

Mr Musial's state of mind

1. The Prosecutor questioned Mr Musial as to whether Mr Musial had been aware, on 11, 12 and 14 March 2021, when he imported further material onto the site, that the Development Control Order prohibited him from doing so. Mr Musial accepted, at the conclusion of a series of questions from the Prosecutor, that the offending conduct had been committed with Mr Musial being aware that the Development Control Order (to the imposition of which he had agreed) required that he not import any further car parts and scrap metal to the site. It will be necessary, later, to discuss the effect of this concession for my sentencing process.

The financial records produced

1. The Prosecutor questioned Mr Musial about the nature of the financial records which he had produced in response to the Prosecutor's subpoena and the extent to which they accurately reflected his current financial position. Mr Musial accepted that, with respect to some of the potentially available banking records, the material which he had provided was incomplete. It was his evidence that the records produced in response to the subpoena were all that was immediately available to him and that it would have taken a period of some weeks to obtain any additional records from his bank.

Real estate assets

1. The Prosecutor questioned Mr Musial concerning his real estate assets. It was Mr Musial's evidence that he owned two properties, the site at Londonderry and a house at Toongabbie where he resided. Mr Musial confirmed that the site at Londonderry was unencumbered. He also confirmed that his residence was subject to a mortgage (a copy of the current balance statement for that mortgage being Exhibit 3, as earlier noted). Mr Musial accepted that the outstanding balance for the mortgage on his residential property was less than the purchase price paid for it.
2. In this context, it is to be noted that the banking records which had been produced by Mr Musial were not ones which showed any payments being made to his mortgage account, although his mortgage account showed that regular monthly payments were made toward the discharge of the capital and interest obligations arising from that mortgage on his residential property.
3. Mr Musial was questioned as to the size and nature of his residential property, providing details which are not necessary to be reproduced here. It is sufficient, for present purposes, to note that, between the two properties, Mr Musial has a significant, positive, real estate equity position (a matter to which it will be necessary to return in the context of my consideration of the application made on Mr Musial's behalf that any penalties to be imposed on him should be moderated by virtue of the operation of s 6 of the Fines Act).

Shipping of car parts to Poland

1. The Prosecutor questioned Mr Musial about a series of payments he had received during the past 12 months. These payments, each of approximately $9,500, were made to Mr Musial from his brother, who is resident in Poland. Mr Musial had, himself, migrated from Poland to Australia many years ago.
2. It was Mr Musial's evidence that he regularly sent container‑loads of car parts to his brother in Poland and that the money he received from his brother was to reimburse Mr Musial for the cost of shipping those container‑loads of parts from Australia to Poland.

Re‑examination of Mr Musial

1. Mr Koikas re‑examined Mr Musial. Two matters arising from Mr Musial's evidence on re‑examination warrant being noted. These were: 1. With respect to the monies transferred to Mr Musial from his brother in Poland, it had earlier been Mr Musial's evidence that these payments were in reimbursement for the costs of shipping the material to Poland. In re‑examination, Mr Musial gave evidence that the cost of shipping the containers to Poland was of the order of $5,000 but that this cost had, over the recent past, increased and was now of the order of $11,000; and 2. When Mr Musial had approached his bank seeking additional records to enable his compliance with the subpoena which had been served on him, an officer of the St Marys Branch of the bank (where his account was located) had advised him that it would take several weeks for any additional records to be obtained and provided to him. In this context, as earlier noted, the subpoena to Mr Musial was issued on 4 November 2022 and returnable one week later. Under these circumstances, I note that I am satisfied that no adverse conclusion should be drawn concerning this aspect of the incomplete nature of the material produced by Mr Musial in response to the subpoena.

The maximum penalty for the offence

1. The maximum penalty for each of these offences is $500,000.
2. The maximum available penalty is to be taken as being the legislature's understanding and reflection of contemporary community standards concerning the offences involved (Environment Protection Authority v Timber Industries Ltd [2001] NSWLEC 25 at [33]). The size of the penalty also "indicates the gravity of the offence as perceived by the community": Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 (Camilleri's Stock Feeds) at 698.
3. The maximum penalty is significant in determining the objective seriousness of the offence: Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 at [57]. The maximum penalty demonstrates the seriousness with which the offence charged is viewed (Camilleri's Stock Feeds also at 698).
4. However, the fact that the Prosecutor elected to seek to have Mr Musial punished for his offending conduct by commencing proceedings in the Local Court is also a matter relevant in these proceedings, obliging me to have regard to the jurisdictional limit imposed on the Local Court by s 9.57 of the EPA Act (Harris v Harrison [2014] NSWCCA 84).

Introduction

1. Before turning to the various matters arising pursuant to s 21A(2) and (3) of the Sentencing Procedure Act potentially here engaged, it is appropriate to make general observations concerning how these matters are to be approached. This is necessary because the burden of proof differs depending on the nature of that which requires consideration.
2. For the purposes of establishing any potential factor of aggravation in s 21A(2), I must conclude that such factor is proved beyond reasonable doubt. On the other hand, for favourable subjective factors applicable to Mr Musial (including those matters potentially arising from s 21A(3)), it is only necessary for Mr Musial to establish that factor on the balance of probabilities (R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 (R v Olbrich) at 281).
3. Although I have earlier set out the terms of s 3A of the Sentencing Procedure Act (being the provision which sets out the objectives for sentencing for offending conduct), there is nothing in particular amongst those objectives which now requires separate consideration in these proceedings. To the extent that it is appropriate that I have regard to Mr Musial's offending conduct in the context of those objectives, that is addressed as part of the general matters later requiring consideration.

A factor of aggravation

1. 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.
2. 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.
3. Mr Musial then set out how he calculated that estimate. The accuracy of that estimate is not contested by the Prosecutor.
4. 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.
5. 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.
6. 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.

Introduction

1. This section of my consideration requires an analysis of those matters that relate to Mr Musial himself, rather than to the offending conduct that gave rise to the charge to which he has pleaded guilty. For any mitigating factor to be engaged, Mr Musial must establish a proper basis for it on the balance of probabilities (R v Olbrich).

Environmental harm ‑ s 21A(3)(a)

1. The first relevant factor (s 21A(3)(a)) is the extent of the harm caused by Mr Musial's offending conduct.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.

Prior offences ‑ s 21A(3)(e)

1. The second relevant factor (s 21A(3)(e)) is whether Mr Musial has "any record (or any significant record) of previous convictions". Mr Musial has no such record and this is to be weighed in his favour in my instinctive synthesis of the appropriate sentences to be imposed on him.

Is Mr Musial a citizen of good repute ‑ s 21A(3)(f)?

1. Mr Musial provided, at Tabs 9, 10 and 11 of the Appeal Book, three character references. They are from: 1. Mr Adam Biziuk, President of the Polonia Sports & Recreation Club; 2. Mr Mark Krizanovic, a proprietor of SSU Automotive at Mount Druitt; and 3. Mr Anthony Taylor, owner of Reservoir Smash Repairs at Kings Park.
2. Each of these references sets out the nature of the basis upon which he has known Mr Musial; the period of time over which that knowledge has accrued; and a general assessment of Mr Musial's personal character (the assessments being positive in each instance).
3. However, none of the referees, from the face of each reference document, has had disclosed to him the fact that Mr Musial has been charged with the offences that had him appear before the Local Court and of his proposed guilty pleas to those charges. Under those circumstances, although each of the references is positive, they are to be accorded negligible weight.

The likelihood of reoffending ‑ s 21A(3)(g)

1. In light of the "taken and being taken" (although a little belated) activities by Mr Musial to comply with the second element of the Development Control Order, I am satisfied that there is a low likelihood (but not no likelihood) of Mr Musial reoffending in the same fashion which has given rise to the charges addressed in these proceedings.

Mr Musial's prospects of rehabilitation ‑ s 21A(3)(h)

1. I am also satisfied that there is a low likelihood of Mr Musial being brought before this Court again for specific offending conduct of the type for which he here stands to be sentenced. Mr Musial has removed a substantial volume of the material accumulated on the site. In his affidavit of 26 October 2022, Mr Musial referred to a range of documents from companies known as Norman's Scrap Metal and JK Plastics Pty Ltd, which were at Annexure E to his affidavit, as demonstrating that approximately 150 tonnes of material have been removed from the site since he committed the breaches of the Development Control Order on the three days which have given rise to the charges that brought him before her Honour and which are now before me. For this reason, I am satisfied that this aspect of Mr Musial's activities gives rise to a reasonable assessment of a positive prospect of rehabilitation with respect to avoiding activities of the nature with which he has been charged.

Contrition and remorse ‑ s 21A(3)(i)

1. 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.
2. Mr Musial was present in court throughout the appeal hearing and was, therefore, available for cross‑examination by the Prosecutor as required.
3. 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).
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.

Mr Musial's guilty plea ‑ s 21A(3)(k)

1. The next relevant factor (s 21A(3)(k)) to be considered is the fact of Mr Musial's guilty pleas. This provision requires that I have regard to the fact that Mr Musial has pleaded guilty to the charges for which he is now to be resentenced.
2. For reasons later separately explained, the utility of these pleas (including their timing) is a matter requiring specific consideration of its benefit to the administration of the system of justice. This factor in Mr Musial's favour is later discussed.

The extent of assistance given to the Prosecutor ‑ s 21A(3)(m)

1. Mr Koikas submitted that Mr Musial had provided assistance to the Prosecutor by Mr Musial's agreement settling the terms of the Statement of Agreed Facts which had been provided to the Local Court and which was in evidence in these appeals' proceedings (Exhibit B, Tab 14). This, he submitted, had had a practical effect of avoiding the necessity of the Prosecutor being put to proof of all relevant matters.
2. I am satisfied that, to this limited extent, this comprises a factor to be taken into account in Mr Musial's favour.

Introduction

1. In these proceedings, both the Prosecutor and Mr Koikas made submissions proposing how I should characterise Mr Musial's offending conduct.
2. It is customary, when sentencing for environmental offences, to describe where the relevant offending conduct might fall within a range which might be defined as running from minor offending conduct through to that which could be characterised as being toward the worst type of conduct (noting, however, that it is not appropriate to characterise conduct as being the worst case as it is always possible to hypothesise something that is even less acceptable (Veen v The Queen (No 2) 164 CLR 465; [1988] HCA 14 (Veen v The Queen (No 2)) at [478])).
3. It is also to be noted that such a process of characterisation is not one of mathematical precision warranting identification on some statistical basis (such an approach was expressly disapproved by the Court of Criminal Appeal in Camilleri's Stock Feeds).
4. In this context, it is convenient to use general descriptors of how such offending conduct might be characterised; these being as within the lower, middle, or upper range of such conduct. Having reached the determination in that very broad fashion, it is then appropriate to describe, again in a general context, whereabouts within the relevant range the specific conduct falls.

The Prosecutor's submissions

1. The Prosecutor submitted that it was appropriate that I have regard to the fact that Mr Musial was aware, when he committed his offending conduct on each of the three nominated days, that that conduct was in breach of the Development Control Order issued to him a short time prior to the dates of the offending conduct.
2. Having regard to Mr Musial's state of mind in this regard, was, the Prosecutor submitted, appropriate and did not offend the De Simoni principle (The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31) as there was no alternative more serious charge available to be laid against Mr Musial that would have included the mental element of knowing that his breaches on 11, 12 and 14 March were forbidden.
3. The position advanced as to how Mr Musial's offending conduct should be characterised was described by the Prosecutor in paragraph 35 of the Prosecutor's written submissions in the following terms: The offending was below the middle of the range of seriousness for offences of the kind captured by s 9.37(1) of the EPA Act. It was not, contrary to AS (45) at the lower end of the range given the contumacious way it was engaged in by Mr Musial.

Submissions for Mr Musial

1. Mr Koikas submitted, in paragraph 45 of his written submissions, that: Considering all circumstances, the Court would conclude that the objective seriousness of the offences are [sic] at the lower end of the range of seriousness for this type of offence.

Consideration

1. I am satisfied that I should accept the submission in [103], which, although not giving rise to a formal factor of aggravation, does render the nature of Mr Musial's offending conduct more serious.
2. Having regard to all of the relevant matters in the evidence, I have concluded that Mr Musial's offending conduct, regarded collectively, should be considered as being toward, but not at, the lower end of the middle range of conduct which might fall within the scope of breaches of s 9.37 of the EPA Act.

Introduction

1. I am required to take into account the question of both specific and general deterrence. As the High Court put it, in Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 (Walden v Hensler), "the chief purpose of the criminal law is to deter those who are tempted to breach its provisions" (at 569 per Brennan J).

Specific deterrence

1. Although Mr Musial has, now, undertaken commendable steps to endeavour to remove the materials unlawfully transported to the site, I am satisfied that a degree of specific deterrence (albeit not to a significant extent) should be incorporated in the penalties to be imposed on Mr Musial. This is to act as a reminder to Mr Musial of the unacceptability of his offending conduct.

General deterrence

1. It is also necessary to consider the extent to which sentencing Mr Musial for his offending conduct conveys a measure of general deterrence to those who might contemplate carrying out analogous unlawful activities.
2. As Brennan J also said in Walden v Hensler, at 570: But when a law proscribes conduct which an ordinary person without special knowledge of the law might engage in in the honest belief that he is lawfully entitled to do so, the secondary deterrent purpose ‑ that is, the purpose of educating both the offender and the community in the law's proscriptions so that the law will come to be known and obeyed ‑ must be invoked to justify the imposition of a penalty for breach. In such a case, care must be taken in imposing a penalty lest the offender be made to shoulder an unfair burden of community education.
3. In this context, it is to be observed that matters of general deterrence are not, in circumstances such as these, directed solely at an amorphous and unconfined, wide public audience. The need for a deterrent educational outcome in circumstances such as these, where Mr Musial ran a prohibited business from the site, by sending a deterrent message to those who might contemplate undertaking activities of the type which gave rise to these charges, is not to be set aside.
4. Whilst it is, clearly, not appropriate to impose a disproportionate penalty on Mr Musial for his offending conduct, I am satisfied that it is appropriate to have regard to the need for an element of general deterrence in the penalties which I am to impose on him.

Introduction

1. Whilst this sentencing process must be undertaken in light of the specific facts and circumstances of Mr Musial's offending conduct, nonetheless, regard must be had to such guidance as may be obtained from such other cases as might have some degree of comparability with the offending conduct to be assessed (Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd (2013) 199 LGERA 236; [2013] NSWLEC 185). This is to ensure the sentence imposed is not inconsistent with the general pattern of sentencing for offences of the kind here being considered where such comparable sentencing information is available.

Mr Musial's submissions

1. Mr Koikas made the following submission at paragraph (76) and (77) of his written submissions: According to pg 18 Sentencing Trends & Issues (Environmental planning and protection offences prosecuted in the NSW Local Court) prepared by the Judicial Commission of NSW, dated 14 November 2014: in a survey of 81 offences for an individual who failed to comply with a development control order, the median fine was $1,500 and the middle 50% range was $500 ‑ $2,750. Unfortunately the circumstances of those cases are not readily available. In light of the balancing exercise required under the CSP Act, and the authorities referred to above, it would be appropriate in these particular circumstances that any penalty imposed be at the lower end of the scale.

Consideration

1. This limited and detail lacking information is of no assistance in my determination as to what should be the appropriate penalty to be imposed on Mr Musial for his offending conduct on each of the three days in March 2021 when it took place.
2. Absent details of the facts and circumstances of any of the material able to be obtained from the Judicial Commission's database, it is simply the position that I should sentence Mr Musial on a "first principles basis" arising from my instinctive synthesis of all of the matters relating to the objective facts of his offending conduct and of the subjective factors which are personal to him and are appropriate to be considered (Markarian v R (2005) 229 CLR 357; [2005] HCA 25)(Markarian).

Introduction

1. In determining the appropriate starting penalty for Mr Musial, I must undertake the mandated process of instinctive synthesis (Markarian) having regard to all the objective factors of Mr Musial's offending conduct (as earlier discussed) and the subjective factors peculiar to him that temper what might otherwise be the penalty to be imposed.
2. The sentence to be imposed must reflect all the relevant objective circumstances of the offence and subjective circumstances of the Defendant (Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 and Veen v The Queen (No 2)). The sentence is not to exceed what is "justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances" (Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at 354, citing Veen v The Queen (No 2)).
3. This process permits me to arrive at a starting sentence for the offence to which the appropriate discount is to be applied for the entry of Mr Musial's guilty plea.

Conclusion on the appropriate starting sentences

1. Having regard to my conclusion that Mr Musial's offending conduct should be characterised as being toward, but not at, the lower end of the middle range of such potential offending conduct and instinctively synthesising all the objective facts embodied in Mr Musial's offending conduct and all of Mr Musial's subjective factors, I am satisfied that the appropriate penalty for each of the offences should be $24,000 rather than the penalty of $30,000 imposed by the Magistrate for each offence.
2. Having reached that conclusion, given that all three offences were committed as a part of a single course of conduct, it will also be appropriate to turn later to address the question of totality and accumulation of the three starting penalties to reflect the overall level of criminality involved.

Mr Musial's guilty pleas

1. The maximum discount on the otherwise applicable starting penalty to be afforded to a defendant who has pleaded guilty is 25% (R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 383). The full measure of this conventionally maximum discount is only afforded to those defendants who enter a guilty plea at the earliest opportunity.
2. In these proceedings, there is no contest between the parties as to what discount (25%) Mr Musial should be entitled because the guilty pleas were entered at the earliest opportunity.
3. The appropriate sentences therefore each require adjustment to $18,000.

Introduction

1. All three of the offences to which Mr Musial has pleaded guilty arose out of the same course of conduct, the offending conduct being temporally contemporaneous and at the one location. As a consequence, although I have set out the appropriate starting penalty I have determined is appropriate for each offence, it is necessary to consider the extent to which the principles of totality should result in some further amelioration of the total penalty to be applied to Mr Musial to reflect this commonality.
2. This requires consideration of how the penalties should be accumulated to reflect the totality of Mr Musial's offending conduct (in lieu of treating, separately, the punishment for each of the offences).

The Prosecutor's position

1. As the final point in a list of matters addressed by the Prosecutor in the Prosecutor's written submissions at (21), under the heading "Principles", the Prosecutor wrote: Fourth, the totality principle is germane to the present sentencing exercise, given that Mr Musial is to be sentenced for 3 separate offences. The precept requires that the Court assess the aggregate or overall sentence after determining appropriate and proportionate penalties for each offence, to ensure it is just and appropriate to the totality of the offending behaviour (citing the decision of Street CJ in R v Holder [1983] NSWLR 245 at 260).

Mr Musial's position

1. Mr Koikas agreed that it would be appropriate to have regard to principles of totality and accumulation because the elements of the three offences all arose out of one course of offending conduct.

Consideration

1. Given that all three charges arose out of a single course of conduct, it is appropriate to moderate, to some extent, the penalty for each of the second and third charges.
2. For the purpose of this element of the sentencing exercise which I am undertaking, I am satisfied that the penalty for the second offence should be reduced to $16,500 and the penalty for the third offence reduced to $15,000.
3. As a consequence of these moderations of second and third starting penalties to reflect the fact that Mr Musial's offending arose out of a single course of conduct, the total overall penalty to be imposed on Mr Musial is $49,500.

Costs

1. It is appropriate simply not to disturb the order that Mr Musial pay the Prosecutor's costs of $1,200 in the Local Court and to make no order for costs of this appeal.

Mr Musial's capacity to pay fines

1. 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.
2. 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".
3. 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).
4. 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.
5. 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.
6. 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.
7. 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.

Orders

1. 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.

Amendments 24 November 2022 - Marked-up air photo appended as Annexure A. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 November 2022