Nguyen v Canterbury City Council

Nguyen v Canterbury City Council - [2010] NSWLEC 55 - NSWLEC 2010 case summary — Zoe

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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.

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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.

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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.

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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;

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(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;

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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

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