Nguyen v Canterbury City Council

Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304 Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Choices Manufacturing Pty Ltd v Fairfield City Council [2009] NSWLEC 72 City of Sydney Council v Schwartz [2003] NSWLEC 261 Dodds v R [2009] NSWCCA 191 Environment Protection Authority v Buchanan (No 2) (2009) 165 LGERA 383 Franks v Woollahra Municipal Council [2007] NSWLEC 461 Garrett v Freeman (No 5) (2009) 164 LGERA 287 Gittany Constructions Pty Limited v Sutherland Shire Council (2006) 145 LGERA 189 CASES CITED: Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited (No 2) [2009] NSWLEC 6 Hoare v The Queen (1989) 167 CLR 348 Markarian v The Queen (2005) 228 CLR 357 Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89 Nasser v Hurstville City Council [2007] NSWLEC 720 R v Doan (2000) 50 NSWLR 115 R v Dodd (1991) 57 A Crim R 349 R v Nichols (1991) 57 A Crim R 391 Sutherland Shire Council v Turner [2004] NSWLEC 774 Thomson v Hawkesbury City Council [2009] NSWLEC 151 Veen v The Queen (No 2) (1988) 164 CLR 465 Woollahra Municipal Council v Byrnes and Consolidate Byrnes Holdings Pty Limited [2002] NSWLEC 125 Zhou v Auburn City Council; Chen v Auburn City Council [2009] NSWLEC 75

APPLICANT Mr N Carney SOLICITORS David Pain & Co LEGAL REPRESENTATIVES: RESPONDENT Mr A Simpson (solicitor) SOLICITORS Pikes Lawyers

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

60001 of 2010 Duc Duong Nguyen -v- Canterbury City Council

EX TEMPORE JUDGMENT Introduction 1 HER HONOUR: The applicant, Mr Duc Duong Nguyen, appeals against the severity of a sentence imposed by Bartley LCM of the Local Court in proceedings brought by Canterbury City Council ("the council") for contravention of s 76A(1)(a) of the Environmental Planning and Assessment Act 1979 ("the EPAA"), in that he carried out development without consent. The applicant appeals on the grounds of financial hardship. 2 The offence involved building works by way of the construction of a new rear extension to an existing residential dwelling measuring approximately 8 m by 8.5 m and extending between 680 mm to 1.1 m from the rear boundary. The extension comprised of brick piers, timber bearers, compressed chipboard flooring, timber stud walls with gyprock lining, fibrocement exterior cladding, a flat metal roof, two windows and a new door. The residence is located in Roselands (Lot 3 in DP 508727) ("the Roselands residence").

3 At all material times the land was zoned residential 2(a) under the Canterbury Planning Scheme Ordinance. Under this Ordinance the building works required development consent from the council, which was not obtained in breach of the Ordinance and the EPAA. 4 The applicant pleaded guilty to the charge when the matter came before the learned magistrate on 15 October 2009. He was unrepresented. On the same day his Honour convicted the applicant as charged and sentenced him to pay a fine of $15,000. The applicant was also ordered to pay court costs of $76 and professional costs of $2,280. Summary of Decision 5 The applicant's appeal is dismissed. First, because I do not believe that, based on the evidence before the Court, the applicant's financial circumstances are as dire as he claims and that he would not be able to pay anything more than a nominal fine. Second, because having regard to objective and subjective considerations relevant to this appeal and to the comparable cases, a fine of $15,000 is appropriate. Statutory Framework 6 A failure to comply with s 76A(1)(a) of the EPAA is an offence pursuant to s 125(1) of that Act. 7 Section 37 of the Crimes (Appeal and Review) Act 2001 ("the Review Act") states: 37 Appeals to be by way of rehearing on the evidence (1) An appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, except as provided by section 38. (2) Fresh evidence may be given, but only by leave of the Land and Environment Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given. (3) The parties to an appeal are each entitled to be provided with one free copy of the transcripts of evidence relevant to the appeal and, if fresh evidence is given, one free copy of the transcript of the fresh evidence. 8 Section 3A of the Crimes (Sentencing Procedure) Act 1999 ("the CSPA") provides that the purpose of imposing a sentence on an offender includes: 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. Nature of an Appeal Against the Severity of Sentence 9 An appeal against the severity of sentence is made to this Court as a right under s 31(1) of the Review Act. The appeal is dealt with by way of rehearing on the basis of certified transcripts and evidence adduced in the court below (s 37(1) of the Review Act). This Court may grant leave to adduce new evidence only if it is satisfied that it is in the interest of justice that leave be given (s 37(2) of the Review Act). 10 In Thomson v Hawkesbury City Council [2009] NSWLEC 151, quoting Gittany Constructions Pty Limited v Sutherland Shire Council (2006) 145 LGERA 189, I describe in more detail the nature of such an appeal (at [44]). I adopt those observations here. Factual Circumstances Giving Rise to the Offence 11 The factual circumstances giving rise to the proceedings before the magistrate were largely not in dispute and were contained in the council's statement of facts tendered both in the court below and in this Court. They are as follows.

12 In 2004 the council granted development consent for the demolition of the existing Roselands residence and the construction of an attached two storey dual occupancy building. 13 On 5 March 2009, the council received a complaint alleging unauthorised building works on the property. 14 On 16 March 2009, Mr Con Kalantzis, the Building Compliance Officer at the council, inspected the works. Another inspection was carried out by Mr Kalantzis on 25 March 2009.

15 On 1 April 2009, a Notice of Entry was posted to the applicant requesting that access for an inspection be given to Mr Kalantzis. 16 On 9 April 2009, Mr Kalantzis met with the applicant on site. Mr Kalantzis had a conversation with the applicant wherein the applicant told him that he built the new extension to the main building without council approval because the dual occupancy was going to cost him around $400,000 with $20,000 in fees and charges, neither of which he could afford. Therefore, he extended the house "so that I could move my family in". 17 The applicant stated that the tradesmen that he had hired for the construction had "taken the money and disappeared leaving me with all these problems". The applicant told Mr Kalantzis that he wished to keep the unauthorised addition to the house, but that if he could not he would demolish it. Mr Kalantzis advised the applicant to "go to a customer service centre and they can help you with that such as the application necessary to seek retention of the unauthorised buildings". 18 However, the council never received an application for a building certificate or development application for the unauthorised works. 19 Consequently, on 14 April 2009, the council served a Notice of Order for the demolition of the unauthorised works. 20 The proceedings were commenced in the Court below on or about 19 May 2009. 21 On 14 October 2009, the day before the hearing in the Local Court, the premises were inspected and it was established that the unauthorised extension had been demolished. 22 Attached to the statement of facts were photos of the extension together with a plan of the existing residence with the extension added to it. The photos and plan reveal that relative to the existing Roselands residence, the extension was significant in terms of its scope and size. Proceedings Before the Magistrate 23 The applicant told the primary judge that he came to Australia 15 years ago and that he was married with five children. He stated that he had bought the Roselands residence in 2004 for $600,000. He stated that it was his estimate that the house was now only valued at between $400,000 or $450,000. 24 He stated that when he bought the house he wanted to build a new house for his family but because of "the market crash", high interest rates and the fact that the bank would not lend him the money to build the approved duplex, he utilised the services of a friend of his wife to build the extension in order to save money.

25 He did not disagree with the suggestion put to him by the learned magistrate that he knew that the extension was unlawful insofar as he required approval to build it. 26 The applicant told the court below that he had gone to Queensland to work as a "real estate agent" in order to earn extra money. 27 He also told the primary judge several times that he had a significant amount of credit card debt ("more than $20,000"), unpaid bills and that generally his financial situation was "difficult". The applicant stated that he might go bankrupt because he could not meet the mortgage payments for the Roseland residence. The applicant therefore requested that the court below penalise him with "a small fine". 28 The applicant expressed contrition for his "mistake". 29 In relation to the claim for professional costs, the learned magistrate noted that he was not able to reduce the quantum of those costs by reason of the impecuniosity of the applicant, but stated that he could consider reducing the fine. The applicant stated that he could not afford to pay the costs claimed in any event. 30 Bartley LCM then delivered the following judgment: HIS HONOUR: All right, thank you. Have a seat. All right, so Mr Duc Nguyen has pleaded guilty to carrying out a development. The offence of building without consent is a very serious crime and the maximum penalty is 1.1 million and the court has to determine the fine having regard to the maximum of 1.1 million dollars. It happens that the appropriate fines is more than a hundred and ten thousand ..(not transcribable).. has to round it down to a hundred and ten thousand, so it is a very serious crime. The penalties are high and the last people who ought to be committing an offence are people who are going to find themselves financially ruined when they can't pay the fine and because - and somebody who commits a crime, including extending a building without approval, cannot expect to escape the consequences of it because of their poor means. The Land and Environment Court which has the same status as the Supreme Court of New South Wales has said, that general deterrence is the main consideration. That means deterring other people from carrying illegal development work, extending houses or building buildings without council consent and that is the main consideration I take into account. Of course, I also take into account everything Mr Nguyen has said, including his poor means, but that is very much a secondary consideration. I also take into account that this was done deliberately. Mr Nguyen knew or strongly suspected that what he was doing was illegal, but he decided to commit this development crime, this offence of extending without getting council approval because it was cheaper for him to do so because his finances were strained. That is not a good reason for illegal building and it was done deliberately. I take into account the house was ..(not transcribable).. - I take into account the house was knocked down, the illegal extensions were. The area and I have had regard to other comparable cases and I ..(not transcribable).. make some allowance for Mr Nguyen's contrition, albeit very light and of course the plea of guilty and I have looked at the - considered the fines in other cases where there has been a plea of guilty and they have been helpful too. I believe the penalty I have settled upon was consistent with them, having regard to floor area, illegally built, whether there is financial gain or not and whether there has been a plea of guilty or whether the court's time is wasted on a defended case when the offender was truly guilty and considered those factors, so Mr Nguyen please stand up. YOU ARE CONVICTED AND YOU ARE FINED FIFTEEN THOUSAND DOLLARS. YOU ARE ORDERED TO PAY COURT COSTS OF SEVENTY-SIX DOLLARS. Proceedings and Evidence Before the Land and Environment Court 31 On 12 February 2010, Biscoe J granted leave to the applicant to adduce fresh evidence of financial hardship. The applicant was ordered to serve this evidence seven days prior to the hearing. Pursuant to that order the applicant filed an affidavit of Mr Duc Duong Nguyen sworn 8 April 2010.

32 In that affidavit Mr Nguyen stated that he has five children aged between two and fifteen years. His wife does not currently work because she cares for the children. 33 Mr Nguyen stated that he is an electrician by trade and has, for the last 10 years, carried on his own business as a sole trader electrician. He also owns a laundry business. Up until the 2006 financial year his electrician's business was "doing very well" but towards the end of the following financial year, his business "dropped off" and has continued to decline ever since. Mr Nguyen stated that he is having difficulty in getting people to pay his bills. It is not known how much money is owed to Mr Nguyen. No evidence was given as to the financial health of the laundry business. 34 Mr Nguyen's taxable income for the financial year ending 30 June 2009, as stated in his 2008-2009 unlodged income tax return, is $32,322. Against this is a schedule drawn up by Mr Nguyen's accountant showing expenses of approximately $48,174 for that financial year. The result is, he claims, a loss of $15,852. 35 Mr Nguyen stated that as at 30 June 2009, his monthly expenses exceed his monthly income at a rate of about $2,000 each month. This shortfall of funds has, he asserted, caused him to take out multiple credit cards which has led to him incurring a large amount of credit card debt.

36 Mr Nguyen annexed to his affidavit a number of credit card statements. However, with the exception of a Woolworths Everyday Money Credit Card dated 11 March 2010 which showed an amount of $4,741.35 in charges, the majority of the other statements were dated November or December 2009. As a consequence of their age, I have given them very limited weight. 37 Mr Nguyen stated that the large amount of accumulated credit card debt has made it difficult for him to pay his usual household expenses. As a consequence, he has borrowed approximately $20,000 from his parents and from his wife's parents. He is unable to ask his parents or his wife's parents for any further money because he has exhausted their available funds. He also stated that he is concerned he will be unable to repay this loan for some time. 38 In relation to the Roselands residence, he stated that the mortgage currently owing on the Roselands property is $442,000. The repayments are currently $2,292.92. Objective proof of either was not furnished to the Court and the latter figure was difficult to reconcile with the statement of personal income and expenses for the 2009 financial year annexed to his affidavit. Mr Nguyen says he has "looked into" refinancing the mortgage held over that residence but because of the large amount of credit card debt and his inability to make repayments he does not "believe" he can do so. What steps, if any, Mr Nguyen has taken to refinance were not clear. 39 Mr Nguyen also owns a property located in Fairfield ("the Fairfield residence"). This property was purchased about 10 years ago. Mr Nguyen states that it currently has a mortgage of $215,000 owing against it. No evidence was given as to its purchase price. 40 Mr Nguyen stated that he had done some research and "believes" that he has negative equity in both properties due to a decrease in their market value (he estimates the Roselands residence to be worth $500,000 and the Fairfield residence to be worth $300,000). 41 Although this evidence was not objected to by the council, given that Mr Nguyen has, by his own admission given during cross examination, no expertise in property valuation, and moreover, that the research engaged in by him forming the basis of this 'belief' was not presented to the Court, I have placed very limited weight on it. 42 Mr Nguyen further stated that approximately a year ago he and his family moved from the Fairfield residence to the Roselands residence. He entered into an agreement with his parents for them to move into the Fairfield residence in exchange for them paying the mortgage repayments and any other expenses associated with the property. Mr Nguyen's parents currently live in the Fairfield residence in accordance with this agreement. 43 Mr Nguyen stated that in or about early 2009 he caused the extension to the residence to be built on the land in order to house his family. This was because the Roselands residence was a three bedroom house which was inadequate to house a family of two adults and five children. He therefore extended the house by adding two bedrooms. The extension took four months to complete with the assistance of friends, and cost around $20,000. 44 Shortly after the extension was completed, he received a letter from the council stating that the extension had to be demolished. This was done. The demolition cost Mr Nguyen $2,000. 45 The applicant sought leave under s 37(2) of the Review Act to adduce fresh evidence in the form of credit card statements reflecting charges incurred by Mr Nguyen whilst in Queensland. Leave was necessary because, on one view, this evidence was outside the terms of the order made by Biscoe J on 12 February 2010. The respondent did not oppose leave being granted. Having been satisfied that it was in the interest of justice, I granted leave to the applicant to tender the material. 46 Mr Nguyen was cross examined by the council. The cross examination revealed the following: (a) that in fact Mr Nguyen did not, contrary to what he had told the learned magistrate, work as a "real estate agent" in Queensland. Rather, he had merely assisted, as an 'introducer', in the selling of real estate. That is to say, he would introduce prospective buyers to the vendor (who was a friend of his) and if the sale went ahead, he would receive a commission. This work necessitated a number of trips to Queensland over a two month period. Mr Nguyen claimed that he did not, after expenses, "make any money" from the venture. No aspect of this work including any of its associated expenses appeared in Mr Nguyen's 2008-2009 income tax return;

(b) that he paid $550,000 in 2004 for the Roselands residence. The discrepancy between the purchase price stated orally to this Court and to that given to the court below ($600,000) was not, however, explained; and

(c) Mr Nguyen conceded that it was possible to borrow further money to pay the fine imposed by the court below.

47 Even allowing for language difficulties (English was not Mr Nguyen's first language, although he did not require an interpreter), the overall impression I formed of Mr Nguyen's evidence was that it was characterised by a tendency to exaggerate the extent of his claimed impecuniosity. 48 As a consequence, and in the absence of any current objective information verifying Mr Nguyen's financial affairs, I was unable to wholly accept his assertion that he was sufficiently destitute that he could not afford to pay the fine imposed by the primary judge. Applicant's Submissions 49 The applicant submitted that the fine was "manifestly excessive" because the learned magistrate did not take into account the financial evidence presented to this Court. Had it done so, a lesser fine would have resulted. The reason why this material was not before the court below was because the applicant was unrepresented. 50 In short, the applicant submitted that he was struggling financially and could not afford to pay the fine.

51 The applicant emphasised that the unlawful development had occurred not for any financial motive, but in order to "house his children". 52 Furthermore, he had complied promptly with the council order to demolish the extension, although he accepted that between its completion and its demolition he had the benefit of approximately six months use. 53 Taking into account the financial evidence present before this Court, the applicant submitted that the fine should be no more than "a couple of thousand dollars". Respondent's Submissions 54 The respondent submitted that: (a) the works were not of a minor nature;

(b) the learned magistrate in fact took into account the financial circumstances of the applicant. He had been given an opportunity to present evidence of financial hardship to the court below and he had availed himself of this opportunity; and

(c) the fine imposed was within the appropriate range of penalties given the extent of works involved and the applicant's relevant objective and subjective factors. The Appropriate Sentence 55 On a rehearing such as this, the Court must determine for itself the appropriate sentence that should be imposed for each of the offences. In determining the appropriate sentence the Court must take into account both the objective gravity of the offence, together with the subjective circumstances of the applicant (Thomson at [65] and the authorities cited thereat; Zhou v Auburn City Council; Chen v Auburn City Council [2009] NSWLEC 75 at [19]). Objective Gravity 56 The primary factor to consider in determining an appropriate sentence is the objective gravity or seriousness of the offence. It fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit insofar as the sentence must not exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances: Veen v The Queen (No 2) (1988) 164 CLR 465 at 472, 485-486, 490-491 and 496; Hoare v The Queen (1989) 167 CLR 348 at 354. It fixes the lower limit because allowance for the subjective factors of the case ought not produce a sentence which fails to reflect the objective gravity or seriousness of the offence: R v Dodd (1991) 57 A Crim R 349 at 354; R v Nichols (1991) 57 A Crim R 391 at 395; Garrett v Freeman (No 5) (2009) 164 LGERA 287 at [51] and Scahill at [50]. 57 In determining the objective gravity or seriousness of the offence, the circumstances of the offence to which the Court may have regard relevantly include (see Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 at [163]; Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 at [110], both cited in Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited (No 2) [2009] NSWLEC 6 at [36]-[38]): (a) the maximum penalty for the offence;

(b) the objective harmfulness of the applicant's actions;

(c) the applicant's state of mind in committing the offence;

(d) the applicant's reasons for committing the offence;

(e) the foreseeability of risk of harm to the environment;

(f) the practical measures to avoid harm to the environment; and

(g) the applicant's control over the causes of harm to the environment.

58 Section 21A of the CSPA further identifies matters which the Court must take into account when sentencing, including those in aggravation (s 21A(2)) and those in mitigation (s 21A(3)).

Maximum Penalty 59 The maximum statutory penalty is of considerable significance in determining the objective gravity of the offence. In Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 it was stated that: the maximum penalty available for an offence reflects the "public expression" by parliament of the seriousness of the offence ... 60 In Markarian v The Queen (2005) 228 CLR 357 (at [31]), the High Court unequivocally referred to the need to have regard to the maximum penalty as a legislative yardstick to enable comparison between the worst possible case and that currently before the Court. 61 The maximum penalty for an offence under the EPAA is $1,100,000 for an individual (s 126(1) of the EPAA). This demonstrates the seriousness with which offences against the EPAA are viewed. 62 Notwithstanding that the Local Court has a jurisdictional limit of $110,000 (s 127(3) of the EPAA), the maximum penalty for an offence against the EPAA nevertheless remains $1,100,000. In R v Doan (2000) 50 NSWLR 115 at [35], Grove J (with whom Spigelman CJ and Kirby J agreed) stated that a provision enacting a ceiling on the maximum sentence that may be imposed by the Local Court is no more than: a jurisdictional maximum and not a maximum penalty for any offence triable within that jurisdiction. In other words, where the maximum applicable penalty is lower because the charge has been prosecuted within the limited summary jurisdiction of the Local Court, that Court should impose a penalty reflecting the objective seriousness of the offence, tempered if appropriate by subjective circumstances, taking care only not to exceed the maximum jurisdictional limit. Objective Harmfulness of the Applicant's Actions 63 In relation to the objective harmfulness of the applicant's actions the following circumstances are relevant: (a) the extension was significant in scope and size;

(b) while demolition of the extension was carried out by the applicant, this was not done until such time as the council had commenced proceedings against him; and

(c) contrary to the submissions of the applicant, the works were carried out for the purposes of financial gain, namely, to save money. The applicant conceded that he did not seek approval for the building works because he did not wish to incur the attendant expense of doing so. Having said this, I accept that ultimately Mr Nguyen was motivated by a desire to house his family in more spacious surroundings rather than to make a profit from the development. The Applicant's State of Mind 64 The learned magistrate found, and it was not denied in this Court, that the unlawful development was deliberate, and moreover, that Mr Nguyen knew, or reasonably suspected, that the works engaged in were unlawful. Again there was no evidence from the applicant in this Court to the contrary. Practical measures and the Applicant's Control Over the Activities 65 It was not suggested that the applicant did not have control over the work carried out on the residence and thus could not have taken practical measures to avoid the harm. At all times he did. Conclusion On Objective Circumstances 66 In my view the commission of the offence is of low objective gravity, but not as low as that suggested by the applicant. Although the environmental harm caused by the unlawful act of the applicant was minimal, the conduct was nevertheless deliberate and committed by the applicant, at least in part, for reasons of financial expediency. Subjective Circumstances of the Applicant 67 A proportionate sentence requires the Court to take into account any personal or mitigating factors present (Gittany at [144] and the authorities cited thereat). 68 The subjective circumstances of the applicant to be considered relevantly include:

(d) any cooperation with regulatory authorities; and

(e) the financial means of the applicant. 69 Having regard to the these objective circumstances I find the evidence reveals that: (a) the applicant has no prior convictions;

(b) it is not known if the applicant was of good character, with no references or other evidence tendered in this regard;

(d) the applicant has expressed remorse for his conduct;

(e) there was cooperation with the council, albeit occasionally marked by delay; and

(f) the applicant pleaded guilty to the offence, however, he did not do so until the day of the hearing in the court below. There were two prior mentions, at one of which the applicant did not appear. As a consequence the utilitarian value of the plea was diminished, but not to a significant degree. Accordingly, the applicant is entitled to a discount for his plea of guilty but not to the full extent. In the circumstances a discount of 22% is warranted. 70 The capacity of Mr Nguyen to pay any fine imposed is dealt with separately in more detail. Capacity to Pay Fines 71 Section 6 of the Fines Act 1996 requires the Court to consider the applicant's means to pay the fine. It states as follows: 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. 72 In Environment Protection Authority v Buchanan (No 2) (2009) 165 LGERA 383 Pain J set out (at [65]) the appropriate approach in considering an applicant's means to pay. She stated: 65 The appropriate method for considering a defendant's means to pay was set out by Finlay J in R v Rahme (1989) 43 A Crim R 81 at 87: …once a determination has been made that a fine should be imposed the correct procedure in assessing the appropriate amount of the fine is to determine it by reference to the gravity of the offence for which it is imposed. If the Court is satisfied that the offender would be unable to pay the amount determined it may reduce it to take account of the offender's means and impecuniosity. 73 I accept on the totality of the evidence that the applicant is not a person of substantial means. I also accept on the evidence that the payment of this fine will impose some financial hardship. However, the extent to which it will do so, I find, remains on the evidence unclear and as a consequence, I am unable to accept the applicant's submissions on financial hardship.

74 This is because while there is proof that the applicant was recently indebted to Woolworths in the sum of approximately $4,700 by way of credit card charges, other than vague assertions of additional debt which I have found to have been exaggerated, the applicant did not furnish the Court with any objective proof or confirmatory material to enable it to properly ascertain his current financial position. For example, no bank account statements or quarterly BAS statements were presented to the Court. And as discussed above, the remaining credit card statements were sufficiently out of date that very little weight could be placed upon them. There was also scant detail about the applicant's laundry business and even less information about the work undertaken in Queensland, reference to the latter of which was absent from the applicant's most recent income tax return. The applicant is the owner of two residential premises (one of which was bought ten years ago) and yet the current value of each is unknown.

75 Accordingly, while I find that the imposition of a fine will cause the applicant some financial difficulty, I do not find that the applicant will be unable to pay a fine in the order of that imposed by the court below, or that the pecuniary penalty to be imposed should be significantly reduced to accommodate the applicant's present fiscal situation.

76 Thus the subjective considerations of the applicant operate to mitigate any penalty imposed, but not to the extent submitted by the applicant. Deterrence 77 In Thomson I quoted Gittany in relation to the applicable principles with respect to deterrence as a component of an appropriate penalty for offences (Thomson at [114]). I adopt and repeat those principles here. 78 One of the purposes of a court imposing a sentence is to prevent crime by deterring both the offender and other persons from committing similar offences. 79 I accept that only minimal specific deterrence is warranted in the circumstances of the commission of the present offence. 80 There is, however, a need to ensure general deterrence in relation to other persons who may be tempted to engage in the modification, by way of extension or otherwise, of their existing residential dwellings without the necessary approvals. In Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349 (at [72]) Preston CJ stated: [72] There is a need for the upholding of the integrity of the system of planning and development control. This system depends on persons taking steps to obey the law by ascertaining when development consent is required and then obtaining development consent before carrying out development: Byron Shire Council v Fletcher [2005] NSWLEC 706 (25 November 2005) at [60]. 81 This was recently reiterated by Sheahan J in Choices Manufacturing Pty Ltd v Fairfield City Council [2009] NSWLEC 71 at [21], when his Honour stated "the public needs to be reminded that the planning regime is in place for good public purposes, and must be obeyed". Consistency in Sentencing

82 A relevant consideration in sentencing is the ascertainment of the existence of a general pattern of sentencing by the Court for offences such as the offence in question (Gittany at [179]-[183]). The proper approach is for the Court to look at (Gittany at [182]): [182] … "whether the sentence is within the range appropriate to the gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range": R v Morgan (1993) 70 A Crim R 368 at 371 and Capral Aluminium Ltd v Workcover Authority of NSW (2000) 49 NSWLR 610 at 641. 83 Of course care must be taken because each case is different and a sentence in one case does not demonstrate the limits of a sentencing judge's discretion (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 365 and Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304 at 312). 84 The applicant did not refer the Court to any authorities in support of his submission that the fine should be approximately $2,000. 85 The respondent referred the Court to several authorities in order to justify its submission that a fine in the order of $15,000 was within the appropriate range. These included: (a) Woollahra Municipal Council v Byrnes and Consolidate Byrnes Holdings Pty Limited [2002] NSWLEC 125 - an individual defendant pleaded guilty and was fined $10,000 plus costs and the corporate defendant, of which the individual defendant was the "mouth piece", was fined $2,000. The conduct concerned the unlawful construction of a swimming pool. Although there was one antecedent for contempt, the Court did not accept that there was a risk of recidivism; (b) Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89 - the defendant was a contractor which had unlawfully engaged in demolition works absent consent to a listed heritage item and within a heritage conservation area. The defendant believed incorrectly that there was permission for the demolition. Pursuant to a plea of guilty, the defendant was fined the sum of $30,000 and ordered to pay costs of $13,237.40; (c) City of Sydney Council v Schwartz [2003] NSWLEC 261 - the defendant pleaded guilty and was ordered to pay a fine of $50,000 plus costs in relation to unlawful demolition works prior to the reconstruction of a basement. The building was a heritage item; and

(d) Sutherland Shire Council v Turner [2004] NSWLEC 774 - the defendant was fined $15,000 and ordered to pay costs of $12,500 after a plea of guilty for an offence of unauthorised works for the purpose of the construction of a proposed boatshed, slip rails and sea wall. The works had commenced prior to consent being granted. The works included the excavation of foreshore land above the sea wall. They were potentially dangerous. The Court accepted that the defendant, who had considerable experience in the construction industry, had engaged in the work in the mistaken belief that the consent had been granted when in fact it had not.

86 The respondent placed significant weight on two further decisions, namely, Nasser v Hurstville City Council [2007] NSWLEC 720 and Franks v Woollahra Municipal Council [2007] NSWLEC 461. Nasser concerned a severity appeal against an initial fine of $35,000 for unauthorised building works involving alterations to a boatshed, including internal works comprising the addition of a shower, kitchen, toilet and air conditioning and external works comprising the installation of a sliding glass door, a sewer pump out system, a rooftop balustrade, a timber deck and a staircase. The appeal was upheld and the fine reduced to $22,500. 87 In Franks v Woollahra Municipal Council [2007] NSWLEC 461, an initial fine of $20,000 occasioned by unauthorised works to a residential dwelling was reduced to $17,000. The unauthorised works comprised the demolition of a ground floor slab in a games room and family room on the basement level, the excavation of rock bed outside the family room and basement level, the construction of a storeroom on the basement level, the construction of a laundry on the ground floor level, the construction of a storeroom off a bedroom on the ground floor level and the construction of a storeroom off an existing bathroom on the ground floor level. The applicant argued that he was unable to pay a fine because he had limited means to do so. The Court noted that while the applicant had substantial property assets he had limited savings and income. The Court found that as a result of these substantial property assets, he had the capacity to borrow funds to pay the fine.

88 The decisions of City of Sydney Council v Schwartz and Mosman Municipal Council v Menai Excavations Pty Ltd are, in my opinion, distinguishable on the basis that the environmental harm occasioned by the offences was considerably more serious than that in the present proceedings because of the heritage nature of the buildings the subject of the unlawful development. Further, I do not consider the decision in Sutherland Shire Council v Turner to be of assistance given the significant scope of the unauthorised works in that case. I have therefore not had regard to these decisions in my assessment of the appropriate penalty to be imposed on the applicant.

89 The respondent also furnished the Court with statistics from the Judicial Commission which indicated that in the very small sample of cases concerning a breach of s 76A(1)(a) of the EPAA where the defendant was fined (7 cases in total) the majority of the fines imposed ranged between $9,000 to $20,000. Regrettably the sample is too small and the potential underlying circumstances too broad for the statistics to be meaningful (Dodds v R [2009] NSWCCA 191 at [4] cited in Thomson at [113]). Conclusion 90 Having regard to the comparable cases referred to above and to the objective circumstances of the offence and the subjective circumstances of the applicant, I find that a sentence of $15,000 is appropriate. A fine of this magnitude is within the appropriate range of fines imposed and, in my view, reflects the total criminality involved in the commission of the offence. The fine takes into account my conclusions as to the current financial circumstances of the applicant.

91 This amount, being no different in quantum to the fine imposed by the court below, is sufficient to dispose of the appeal on sentence. Costs 92 No application was made before me to vary the costs orders made below and I do not intend to do so. 93 In relation to the cost of this appeal it was submitted by the applicant that, contrary to the usual order that costs follow the event in this class of proceedings, there should be no order as to costs. The basis for making this submission was the further financial detriment that would be meted out to the applicant by the imposition of an order for costs. The submission was opposed by the respondent. 94 The ability of a losing party to pay costs is not generally a relevant consideration in the making of any costs order. Unable to refer the Court to any disentitling conduct by the respondent in the conduct of the appeal, I am of the opinion that the usual costs order should be made with the applicant to pay the respondent's costs. Orders 95 The orders of the Court are therefore: (1) the appeal is dismissed.

(3) all exhibits are to be returned, except Exhibit B.

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