Pesic v Sutherland Shire Council

Land and Environment Court (NSW)|2019-03-05|Before: Preston CJ

An appeal against sentence

Mr Pesic seeks leave to appeal against the sentence imposed by Magistrate Bartley in the Local Court at Sutherland on 25 July 2018 for the offence of carrying out development without development consent in breach of s 76A(1)(a) and s 125 of the Environmental Planning and Assessment Act 1979 ("EPA Act").
Mr Pesic operated a business of repairing and servicing motor vehicles at Unit 15, 16-24 Waratah Street, Kirrawee ("the premises"). The premises are located within the General Industrial Zone 1 in Sutherland Shire Local Environmental Plan 2015. In Zone IN1, development for the purpose of a "vehicle repair station" required development consent in the relevant period. Mr Pesic carried out the development of a vehicle repair station from 8 December 2014 until he was served with the Court Attendance Notice on 15 May 2017. Mr Pesic had ceased operating the business at the premises by the time the prosecution was heard on 16 October 2017, and determined by the Local Court on 25 July 2018.
The Local Court convicted Mr Pesic of the offence, fined him $7,600 and ordered him to pay the costs of the prosecutor, Sutherland Shire Council ("the Council"), in the sum of $9,550.
The sentence was imposed on 25 July 2018. Mr Pesic did not appeal within 28 days after the sentence was imposed (as he had a right to do under s 31(1)) within the time specified in s 31(2) of the Crimes (Appeal and Review) Act 2001 ("CAR Act"). Mr Pesic filed a summons purporting to commence the appeal in the Land and Environment Court on 23 August 2018, which was 29 days after the sentence was imposed by the Local Court.
Mr Pesic did, however, apply for leave to appeal under s 33(1) of the CAR Act in the summons filed on 23 August 2018. This was within three months after the sentence was imposed, as required by s 33(2) of the CAR Act.

The appellant's submissions

Mr Carr, the solicitor for Mr Pesic, submitted that the sentence should be varied for the following reasons: 1. Mr Pesic was misled, albeit innocently, by his landlord and her real estate agent that he could operate a motor vehicle repair and servicing business at the premises. When Mr Pesic inspected the premises, before he entered the lease in April 2014, he observed on two or three occasions that the previous tenant was servicing motor vehicles in much the same way that Mr Pesic proposed to do. Unit 15 was one of a number of similar units in a complex called "Autoplaza", where some other units were being used for the purpose of motor vehicle related businesses. Mr Pesic entered a three year lease in April 2014. The lease was renewed in April 2017 for a further one year. The lease stated that the premises were to be used only as "motor vehicle showroom and repairs". Mr Pesic believed that motor vehicle repairs and servicing would be a lawful use of the premises. 2. The development consent for the premises, granted on 20 December 1995, granted consent to use the premises as a "motor showroom". Although the consent did not in terms refer to or authorise motor vehicle repairs and servicing, Mr Carr submitted that it would have been reasonable for Mr Pesic to have believed that it would allow such use (although there was no evidence that Mr Pesic looked at the development consent at the time he entered the lease). 3. Mr Pesic is a hardworking, self-employed man. He is not sophisticated and did not know what the planning law required in order to operate his business at the premises. Mr Pesic did not commence his business at the premises knowing that it was unlawful or with the intention of breaching the EPA Act. He believed it would be a lawful use. 4. Mr Carr submitted that one reason why Mr Pesic did not cease operating his motor vehicle repair and servicing business when the Council variously directed him to do so was that he was risk adverse and did not want to jeopardise the lease that he had entered in good faith. 5. Mr Carr submitted that a conviction for the offence might put Mr Pesic's motor vehicle repairer's licence, issued by the Department of Fair Trading, at risk. Under s 26(1)(a) of the Motor Dealers and Repairers Act 2013, a person must be a fit and proper person to hold a motor vehicle repairer's licence. Mr Carr submitted that a conviction for the offence might cause the Department of Fair Trading to consider that Mr Pesic is not a fit and proper person. Mr Carr also submitted that having a conviction might affect Mr Pesic's future employment prospects. 6. Mr Carr submitted that the commission of the offence did not cause any harm to the environment or to neighbours. Mr Carr submitted that Mr Pesic's repair and servicing of motor vehicles on the premises did not involve any physical alteration of the premises, cause a nuisance to any other occupant of the Autoplaza complex, did not involve the use of dangerous chemicals, would not have been noticeable in a precinct of automotive businesses and did not involve more than two people on the site at any time. 7. Mr Carr submitted that Mr Pesic had endeavoured to rectify the breach of the EPA Act. Mr Pesic ceased repairing and servicing motor vehicles on the premises after being served with the Court Attendance Notice on 15 May 2017. Thereafter, Mr Pesic engaged a town planner to submit a development application to the Council seeking consent to carry out a vehicle repair station at the premises. Although Council did not determine that development application, Mr Pesic appealed on 13 February 2018 to the Court and the Court, by consent, on 19 September 2018, upheld Mr Pesic's appeal and granted development consent for "the repairing and servicing of vehicles and as a motor showroom". In short, Mr Carr submitted that, although Mr Pesic was slow to act to cease operating his business unlawfully at the premises, he did act appropriately in the end. 8. Mr Carr acknowledged that Mr Pesic had been visited and warned by Council officers about his business, but their concern and the complaints that had been made to the Council primarily related to the allegation that Mr Pesic was illegally parking or storing vehicles in the car parking spaces in the Autoplaza complex and on the public roadway in the vicinity of the premises. Mr Pesic believed that the Council's letters, notices of intention to give an order under the EPA Act and order under the EPA Act concerned parking and storage of vehicles outside the premises. Mr Carr submitted that Mr Pesic was not charged with an offence for that conduct and the Local Court did not find that the prosecutor had proved that Mr Pesic illegally parked or stored vehicles in the Autoplaza complex or on the streets nearby. Mr Pesic's reluctance and delay in ceasing the use of the premises for the purpose of a vehicle repair station, in contrast to the alleged illegal parking and storage of vehicles, was therefore explicable. Mr Pesic perceived that the warnings from the Council were directed to the alleged illegal parking and storage of vehicles, outside the premises, and not the repairing and servicing of motor vehicles within the premises. 9. Mr Carr submitted that Mr Pesic had suffered financial loss after he ceased operating his motor vehicle servicing and repair business at the premises on being served with the Court Attendance Notice on 15 May 2017 and that loss has continued to date. Mr Pesic did not operate the business at the premises until this Court granted consent on 19 September 2018. Thereafter, the lease was not renewed and Mr Pesic vacated the premises. Mr Pesic has found it difficult to find alternative premises in Sydney. He now is considering moving his business to the Illawarra region. Although Mr Pesic now services motor vehicles at people's homes, he earns less than he did when he was conducting his business at the premises. Mr Pesic tendered a letter from his accountant showing that his business income has declined by around a third from 2016 to 2018. 10. Mr Carr submitted that Mr Pesic had been in business for 30 years and never had a planning law problem in the various places at which he has operated before. He has no prior convictions for planning or environmental offences. 11. Mr Carr acknowledged that Mr Pesic delayed pleading guilty, first having pleaded not guilty, then changing his plea to guilty on the first day of the trial, and also unsuccessfully seeking to change again his plea from guilty to not guilty at the end of the sentence hearing. Although Mr Carr faintly suggested that the delay in concluding the proceedings in the Local Court might have contributed to Mr Pesic's prevarication in his plea, Mr Carr ultimately accepted that, having regard to Mr Pesic's conduct, he could not argue that the minimal discounts for the utilitarian value of the guilty plea afforded by the Local Court (5%) and for lack of remorse were in error. 12. Mr Carr submitted that Mr Pesic is a person of good character, as the testimonials tendered before the Local Court attest. 13. Mr Carr addressed the factors in s 10(3) of the Sentencing Act that need to be considered by the Court in deciding whether to make an order under s 10(1) of the Sentencing Act. Mr Pesic is a person of good character, has no record of previous convictions, and is 50 years old (s 10(3)(a)). The offence was not trivial but it was not proved to have caused any harm to the environment or to neighbours (s 10(3)(b)). The extenuating circumstances in which the offence was committed included that it was not an obvious crime - knowledge of planning law was needed in order to understand why operating the business was unlawful; Mr Pesic entered the lease in good faith on the basis of representations by the landlord and real estate agent that he could operate his motor vehicle repair and servicing business at the premises; having entered the lease, he did not want to break it; Mr Pesic did rectify the breach in the end by obtaining development consent for the use; and Mr Pesic's business was socially useful in that he made vehicles safe (s 10(3)(c)). A final matter that is proper to consider is that an order under s 10(1) would avoid the harshness of a criminal conviction (s 10(3)(d)).
In the event that the Court does not make an order under s 10(1), Mr Carr submitted that the Court should reduce the amount of the fine from that imposed by the Local Court.

The Council's submissions

Ms Nurpuri, counsel for the Council, firstly submitted that no reasons have been given by Mr Pesic as to why leave to appeal should be granted. The summons does not state any reason why the appeal was not made within the time allowed by s 31 of the CAR Act. The only two general grounds of appeal stated in the summons are not themselves reasons why the appeal was not made within time and also are not sufficient reasons for establishing why it is in the interest of justice that leave to appeal be granted.
In any event, Ms Nurpuri submitted that the sentence imposed by the Local Court was appropriate and proportionate, both to the objective gravity or seriousness of the offence as well as the subjective or personal circumstances of Mr Pesic.
Mr Nurpuri summarised the factors relevant to sentence considered by the Local Court: "(a) The Applicant, even after having been made aware of his unlawful use of the Premises, did not comply with the existing development consent, nor did he lodge a development application. Instead, that Applicant continued his unlawful business. (b) The Applicant ignored notices issues by the Respondent and continued his unlawful business. (c) The issue relating to the parking spaces occupied by the Applicant was not proved beyond reasonable doubt, and as such, the Applicant's unlawful use of the Premises had potential for harm. (d) In the witness box, the Applicant showed little or no remorse or contrition, and complained about receiving a $3,000 infringement notice on his birthday. (e) There was a need for individual deterrence and referred to EPA v Hanna [2018] NSWLEC 80 at [205]. (f) The jurisdictional maximum penalty in the Local Court is $110,000. The maximum penalty for the offence reflects the legislature's view of the seriousness of the offence. This is a matter that the Court has to take into account when assessing the objective seriousness of these types of offences: Camilleri's Stock Feeds Pty Ltd v Environmental Protection Authority (1993) 32 NSWLR 683 at 698. (g) The sentence imposed by the Court for an offence must both reflect and be proportionate to the objective circumstances of the offence and the personal or subjective circumstances of the Applicant. (h) The Applicant ignored the planning process completely and for a very substantial period of time. (i) Any asserted loss of turnover was not properly approved by documentary evidence and in any event, the loss is as a result of the Applicant's protracted and wilful defiance of Council. Such loss does not readily fall within the concept of extra-curial punishment: Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242 at [173]-[175]. (j) The Applicant had no prior convictions. (k) There is a need for consistency in sentencing. (l) An application for an order under s10(1)(a) of the Sentencing Procedure Act should be rejected. A conviction is necessary and appropriate to hold the offender accountable for his unlawful conduct: North Sydney Council v Perini (No 2) [2013] NSWLEC 91 at [202]. (m) The offender pleaded not guilty and then pleaded guilty on the defended hearing day. Subsequently, the proceedings were unproductively complicated and were unduly protracted by the offender. A utilitarian discount of 5% was applied. (n) The legal costs claimed by the Council was reduced by 10%."
Ms Nurpuri responded to certain of Mr Carr's submissions as follows: 1. Mr Pesic had knowledge of the unlawfulness of operating his business of repairing and servicing motor vehicles at the premises from 2014 onward. The Local Court was correct to find that Mr Pesic was "negligent in not getting reliable independent advice before commencing his motor vehicle repair business in Unit 15. By the end of 2014 he knew it was unlawful. Subsequently, he deliberately and defiantly ignored Council's communications and continued to operate and conduct his business unlawfully." A Council officer had visited Mr Pesic at the premises in December 2014 and advised him that there was a development consent for the premises and that Mr Pesic may be breaching the development consent. In December 2014, the Council officer again visited the premises and advised Mr Pesic that he "could not locate consent for your operation of the mechanical workshop" and that "you could change the use from a motor showroom as previously approved to a mechanical workshop and consent will be required for you to continue to use the premises as a workshop". The Council officer sent a letter to Mr Pesic on 16 December 2014 confirming this information. The later notices of intention to give an order and the order under the EPA Act given to Mr Pesic in 2015 and 2016 stated that the mechanical workshop operated by Mr Pesic was outside the 1995 development consent for the "use of Unit 15 for motor showroom". The Council repeatedly invited Mr Pesic to rectify the breach by lodging a development application for the mechanical workshop use. Although on 17 November 2016, Mr Pesic said he would go to the Council and submit a development application, he never did so until after he was served with the Court Attendance Notice on 15 May 2017. He lodged the development application on 16 May 2017. Ms Nurpuri submitted that Mr Pesic therefore operated his business of vehicle repair station at the premises from at least November 2014 to the end of May 2017 (when he vacated the premises) knowing that to do so was in breach of the EPA Act. 2. Whether or not Mr Pesic was misled by the landlord or the real estate agent as to the lawfulness of operating his business of repairing and servicing motor vehicles at the premises is not a mitigating factor. Whatever mistaken belief about the lawfulness of the use Mr Pesic had on entering the lease in 2014 was corrected by the Council in December 2014. From then on, Mr Pesic knew that operating the business was unlawful unless and until he obtained development consent for that use. 3. Ms Nurpuri noted that the Local Court, in sentencing Mr Pesic, did not find that the commission of the offence caused any harm to the environment or neighbours. The Local Court found that "the detrimental impacts on the amenities on neighbouring business, and their customers, and on the public, contended for by the prosecutor, have not been proved beyond reasonable doubt". Hence, the sentence was not influenced by the allegation of illegal parking and storage of vehicles. 4. Ms Nurpuri submitted that the Local Court was right to give a minimal discount for the utilitarian value of the plea of guilty. Mr Pesic changed his plea from not guilty to guilty late and then tried to change his plea back to not guilty after the sentence hearing had largely been completed. The Local Court was also right to find that Mr Pesic "has minimal insight and little or no contrition or remorse". Ms Nurpuri said the delay in completing the sentencing hearing (it started in December 2017 and was adjourned to April 2018) has no bearing on the delay in Mr Pesic entering his guilty plea or seeking to change his plea or his remorse for the offence. 5. On Mr Pesic's state of mind and motive, Ms Nurpuri submitted that the Local Court correctly found that "the offender's motive in deliberately continuing what he knew or ought well to have known was an unlawful use of Unit 15 was financial gain". 6. Ms Nurpuri submitted that no basis has been laid for the Court to make an order under s 10(1) of the Sentencing Act. None of the factors referred to by Mr Carr justify making an order under s 10(1). The Local Court considered but rejected Mr Pesic's submission that an s 10(1) was "well justified". The Local Court was right to find that "a conviction of Mr Pesic is necessary and appropriate to hold the offender accountable for his unlawful conduct…". 7. Ms Nurpuri submitted that Mr Pesic has adduced no evidence of his financial means to pay the fine imposed by the Local Court. The fine was small, only 1.5% of the maximum penalty. There was no evidence of Mr Pesic or his accountant as to Mr Pesic's financial means or his ability or inability to pay a fine of that amount.

The appropriate sentence

The appeal has been dealt with by way of rehearing on the basis of the evidence given in the Local Court proceedings, and the fresh evidence of an affidavit of Mr Pesic attaching the letter from Mr Pesic's accountants stating his business income for the years 2016, 2017 and 2018, the development consent granted by the Land and Environment Court on 19 September 2018 and the renewed lease of the premises dated 11 April 2017. The Court is not restricted to a determination of whether the sentence imposed by the Local Court was infected with error but rather the Court is to redetermine the appropriate sentence for the offence to which Mr Pesic has pleaded guilty. In discharging this task, the sentence is to reflect and be proportionate to both the objective circumstances of the offence committed by Mr Pesic and the personal or subjective circumstances of Mr Pesic as the offender.
The objective circumstances of the offence include the maximum penalty for the offence, the objective harmfulness of the offence, Mr Pesic's state of mind and his reasons for committing the offence. Each of these factors were properly considered by the Local Court.
At the time of Mr Pesic committing the offence against s 76A(1)(a) and s 128(1) of the EPA Act, the maximum penalty was $1 million in the case of an individual (s 125A(2)(b) of the EPA Act), but only if the Court Attendance Notice commencing the proceedings alleged that the factors in s 125A(1)(a) and (b) of the EPA Act apply to the commission of the offence. These factors are that the offence was committed intentionally and that the offence caused or was likely to cause significant harm to the environment or caused the death or serious injury or illness to a person. The Court Attendance Notice commencing the proceedings for the offence committed by Mr Pesic did not allege that the factors in s 125A(1) apply to the commission of the offence. Accordingly, s 125A(1) did not apply to the offence. The offence committed by Mr Pesic was not an offence for which a tier 3 maximum penalty applied (under s 125C of the EPA Act). As a consequence, the offence committed by Mr Pesic was an offence to which s 125B applied and he was liable to a tier 2 maximum penalty of $500,000 in the case of an individual.
If the offence was a continuing offence, Mr Pesic would be liable for a further $5,000 for each day the offence continued (s 125B(2)(b)(ii) of the EPA Act). The prosecutor did not, however, allege a continuing offence or seek a further penalty for a continuing offence.
The limit of the Local Court's jurisdiction is $110,000 (s 127(3) of the EPA Act).
The maximum penalty (not the Local Court's jurisdictional limit) reflects the Parliament's view of the seriousness of the offence and sets a yardstick against which the offence committed by Mr Pesic can be compared.
The objective harmfulness of Mr Pesic's commission of the offence is relevant to determining the seriousness of the offence. The prosecutor did not prove that Mr Pesic's operation of the motor vehicle repair and servicing business at the premises caused harm to the environment. There were allegations that Mr Pesic, in the course of operating this business, had illegally parked or stored motor vehicles in the carpark of the Autoplaza complex or in the nearby public streets. The Local Court, however, found that the prosecutor had not proven beyond reasonable doubt that Mr Pesic had illegally parked or stored motor vehicles. The prosecutor did not contest that finding on the appeal. I agree with and make the same finding.
The offence against 125(1) of the EPA Act is a strict liability offence. Nevertheless, subject to the principle in R v De Simoni (1981) 147 CLR 383 at 389; [1981] HCA 31, the state of mind of an offender in committing a strict liability offence can have an effect of increasing the seriousness of the offence. A strict liability offence that is committed intentionally, negligently or recklessly will be more serious than one not so committed. Offences committed deliberately are more serious than ones committed by inadvertence and error.
In this case, the Local Court found that Mr Pesic was negligent in not getting reliable independent advice before commencing his motor vehicle repair business at the premises. By the end of 2014, after he had been told by Council officers, he knew it was unlawful. Thereafter, he deliberately and defiantly ignored the Council's communications and continued to operate and conduct his business unlawfully.
These findings do not offend the De Simoni principle. The Local Court did not, in sentencing Mr Pesic, take into account as aggravating circumstances of the offence, matters which would lead to him being punished for a more serious offence for which a tier 1 maximum penalty would apply and for which Mr Pesic has not been charged in the Court Attendance Notice. The Local Court did not find that Mr Pesic committed the offence intentionally (being one of the factors in s 125A(1)(a) if the tier 1 maximum penalty is to apply). The Local Court found that Mr Pesic, before he entered the lease for the premises and commenced operating his business at the premises, was negligent in not seeking town planning advice as to the lawfulness of operating his business at the premises. Mr Pesic was told by Council officers that his business was unlawful. From then on, he knew it was unlawful. The Local Court found that he deliberately and defiantly ignored the Council's communications and continued to operate his business unlawfully. Although not necessarily so in all cases, in the case of Mr Pesic, I find that his deliberate operation of his business, after being told that to do so would be in breach of the EPA Act, falls short of Mr Pesic intentionally committing the offence.
There is a further reason why the Local Court's finding did not lead to Mr Pesic being punished for a tier 1 maximum penalty. Under s 125A(1) of the EPA Act, in order for the tier 1 maximum penalty to apply, the prosecutor would have needed to have established not only that the offence was committed intentionally (the factor in (a)) but also that the offence caused or was likely to cause significant harm to the environment or cause the death of or serious injury or illness to a person (the factor in (b)). The Local Court found that the prosecutor had not established the factor in (b). Hence, the Local Court could not, and did not, sentence Mr Pesic on the basis that s 125A(1) applied to the offence committed by Mr Pesic.
For my part, I find that Mr Pesic was reckless in entering the lease and operating the business at the premises, first without obtaining town planning or legal advice as to the lawfulness of operating the business at the premises and then, in continuing to operate the business after he had been warned and directed not to do so without seeking development consent. The commission of the offence deliberately and recklessly increases the objective seriousness of the offence.
The criminality involved in the commission of the offence by Mr Pesic is to be measured not only by the seriousness of what occurred but also by reference to the reasons for its occurrence. The Local Court found, beyond reasonable doubt, that Mr Pesic's "motive in deliberately continuing what he knew or ought to have known was an unlawful use of Unit 15 was financial gain".
Mr Pesic did not contest this finding. It was obvious on the evidence. Mr Pesic said he did not want to jeopardise his lease by ceasing to operate his business at the premises. He benefited financially by operating at the premises. Mr Pesic's accountant's figures established that the business income for 2016 and 2017, whilst Mr Pesic operated his business at the premises, was higher than in 2018 when he did not operate at the premises after he vacated in May 2018. Mr Pesic therefore gained financially by committing the offence.
Having regard to the nature and circumstances of the offence committed by Mr Pesic, the maximum penalty for the offence, the lack of proven harm to the environment or neighbours by the commission of the offence, the commission of the offence deliberately and recklessly and for financial gain, I find that the offence is of low objective seriousness. The Local Court also found that the "objective gravity of the offence is towards the low end of the range".
Within the limits of the objective seriousness of the offence, the Court may take into account factors personal to Mr Pesic.
Mr Pesic does not have any prior convictions for any planning or environmental offence. This is a mitigating factor: s 21A(3)(e) of the Sentencing Act.
There is evidence (by way of testimonials) that Mr Pesic has been, otherwise than committing the offence for which he has been charged, a person of good character. This is another mitigating factor: s 21A(3)(f) of the Sentencing Act. This factor has less significance for planning and environmental offences, as they are typically committed by persons of good character: see Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 at [147]-[148]. This point was noted by the Local Court. Nevertheless, I take into consideration the evidence that Mr Pesic is generally held to be a person of good character.
Mr Pesic did eventually plead guilty to the offence: s 21A(3)(k) and s 22 of the Sentencing Act. However the significant delay in pleading guilty, and his unsuccessful application to change his plea during the sentencing hearing, affected the utilitarian value of the plea of guilty. Mr Pesic originally pleaded not guilty and a trial was fixed. On the first day of the trial, 16 October 2017, Mr Pesic changed his plea to guilty. The matter was adjourned for sentencing on 6 December 2017. The sentencing hearing commenced on 6 December 2017 and was adjourned for final submissions to 18 April 2018. On 18 April 2018, Mr Pesic applied to change his plea back to not guilty. The Local Court rejected his application. Nevertheless, time was taken dealing with the application. The Local Court found that "the offender pleaded not guilty and then pleaded guilty on the defended hearing day. Subsequently, the proceedings were unproductively complicated and were unduly protracted by the offender". The Local Court assessed the appropriate utilitarian discount for Mr Pesic's plea of guilty to be only 5%.
Mr Pesic did not contest this finding that the utilitarian discount should be only 5%. Although at the low end of the range, I find that, in all the circumstances, a utilitarian discount of 5% is maintainable. Mr Pesic's plea of guilty had very little utilitarian value for the criminal justice system. There was very little saving of time or expense by Mr Pesic pleading guilty, rather than not guilty, and indeed he changed his plea once and applied to change it a second time although he was unsuccessful. Time and cost was expended in dealing with this unsuccessful application to reverse his plea of guilty.
Apart from the utilitarian value of a plea of guilty, genuine remorse of an offender is a further mitigating factor: s 21A(3)(i) of the Sentencing Act. The Local Court found that Mr Pesic "showed little or no remorse or contrition" for the offence. Mr Pesic did not contest this finding. Indeed Mr Carr accepted in submissions that Mr Pesic "doubted throughout the case that the Sutherland Shire Council was right" and this accounted for Mr Pesic's reluctance to change his plea from not guilty to guilty and then to apply, during the sentencing hearing, to reverse his guilty plea. I find that Mr Pesic has not demonstrated remorse for the offence, including that he has not accepted responsibility for his actions.
I take into account the objective circumstances of the offence and the subjective circumstances of Mr Pesic as the offender, as I have discussed above.
I take into account the purposes of sentencing in s 3A of the Sentencing Act. The purposes of punishment, retribution and denunciation are relevant. There is a need for the Court, through the sentence it imposes, to ensure that Mr Pesic is adequately punished for the offence, to hold him accountable for his actions, and to denounce the conduct of Mr Pesic in proportion to the seriousness of the offence.
The sentence needs to operate as a deterrent. The purpose of general deterrence is relevant to ensure that persons carrying development on land take steps to obey the planning law by ascertaining when development consent is required, obtaining any required development consent before carrying out development, and carrying out development in accordance with the terms of the development consent so obtained. The purpose of individual deterrence is also relevant. The sentence must deter Mr Pesic from committing similar offences in the future. Although Mr Pesic has now vacated the premises, so cannot commit the same offence there, he is seeking to operate his business elsewhere. Mr Pesic needs to be deterred from doing so without complying with the planning law. The Local Court found that "individual deterrence required substantial weight". Mr Pesic did not contest this finding.
Synthesising the relevant objective and subjective circumstances of the offence and of Mr Pesic as the offender, and considering the relevant purposes of sentencing, I consider that the appropriate sentence for the offence committed by Mr Pesic is a fine in an amount considerably in excess of that imposed by the Local Court (of $7,600), in the order of $25,000. This figure would need to be discounted by 5% for the utilitarian value of the plea of guilty.
Such a sentence, however, would be more severe than that imposed by the Local Court. This Court does have power under s 39(2) of the CAR Act to vary the sentence imposed by the Local Court by setting aside that sentence and imposing a more severe sentence. However, there is an established practice that an appellate court would not vary a sentence imposed by the Local Court by imposing a more severe sentence without first warning the appellant of that possibility. The warning permits the appellant the opportunity to consider whether or not to apply for leave to withdraw the appeal: Parker v Director of Public Prosecutions of NSW (1992) 28 NSWLR 282 at 295, 300.
In this case, the prosecutor did not appeal against the leniency of the sentence imposed by the Local Court or submit on the appeal in this Court by Mr Pesic that a more severe sentence should be imposed. No warning was therefore given to Mr Pesic that a more severe sentence might be imposed. It would be unfair for the Court to vary the sentence imposed by the Local Court by increasing the amount of the fine.
Mr Pesic, of course, argued that no fine should be imposed but rather the Court should make an order under s 10(1) of the Sentencing Act. For that purpose, he argued the Court should set aside the conviction made by the Local Court and instead, without proceeding to conviction, make an order under s 10(1) directing that the charge be dismissed.
Mr Pesic had argued before the Local Court that it should make an order under s 10(1). The Local Court found that an order under s 10(1) was not appropriate but rather "a conviction of Mr Pesic is necessary and appropriate to hold the offender accountable for his unlawful conduct".
I agree. I do not find that the factors referred to by Mr Pesic justify, in all the circumstances, making an order under s 10(1). I do not find that his good character, lack of prior convictions and age of 50 years warrant not convicting him for the offence he has committed. As I have noted earlier, typically planning and environmental offences are committed by persons who are otherwise of good character and have no prior convictions for planning or environmental offences. The factors in s 10(3)(a) of the Sentencing Act apply to most people who commit breaches of planning or environmental laws.
I do not find the circumstances of how and why Mr Pesic entered the lease and commenced operating his business at the premises to be extenuating. As I have found earlier, Mr Pesic was reckless in not obtaining planning or legal advice about the lawfulness of operating his business at the premises. His continued operation of the business, after being warned of the unlawfulness of operating the business at the premises, was also reckless. It is not an answer that using land in breach of planning law is not obvious to the layman. The lease required the use of the premises to be lawful. It was incumbent on Mr Pesic to ascertain what was required in order to ensure that the use would be lawful, including seeking planning or legal advice.
The fact that the prosecutor did not prove that Mr Pesic's operation of his business caused harm to the environment or neighbours is not an extenuating circumstance. The prosecutor was unable to establish the aggravating factor that the offence caused "injury, emotional harm, loss or damage" that was substantial (see s 21A(2)(g) of the Sentencing Act). But equally, Mr Pesic did not establish that "the injury, emotional harm, loss or damage caused by the offence was not substantial" (s 21A(3)(a) of the Sentencing Act). A breach of the EPA Act does not necessarily have to cause harm to the environment or people. Carrying out development without development consent undermines the integrity of the statutory scheme and thwarts the objects of the EPA Act and statutory provision creating the offence.
Mr Pesic's actions in much belatedly obtaining development consent in 2018, after operating unlawfully for over 3 years beforehand, is not an extenuating circumstance. The offence had already been committed by then.
The social utility of Mr Pesic's business is not an extenuating circumstance. All development provides some economic or social benefit, including providing goods and services. There is no particular feature of Mr Pesic's business that is so special or socially useful as to make the operation of his business at the premises an extenuating circumstance.
Finally, I do not consider that a conviction for a breach of the EPA Act for carrying out development without consent would place at risk Mr Pesic's motor vehicle repairer's licence, as I do not consider that it would make Mr Pesic not a fit and proper person to hold a motor vehicle repairer's licence. Equally, I do not consider a conviction for that offence will jeopardise his future employment prospects.
I therefore agree with the Local Court that an order under s 10(1) is not appropriate in the circumstances.
In conclusion, I find that Mr Pesic has not established that this Court should vary the sentence imposed by the Local Court.
As noted earlier, Mr Pesic needed to apply for leave to appeal, as he was a day late in appealing against the sentence imposed by the Local Court. As this is such a slight delay, I consider it is in the interest of justice to grant leave to appeal under s 33 of the CAR Act. However, having granted that leave to appeal, the resultant appeal should be dismissed.

Costs of the appeal

The Council sought an order that, if Mr Pesic's appeal was dismissed, he should pay the Council's costs of the appeal.
Mr Carr, on behalf of Mr Pesic, submitted that, due to Mr Pesic's financial circumstances, an order for costs should be kept to a minimum. Mr Carr referred to the email from Mr Pesic to a Council officer on 21 November 2016 in which Mr Pesic explained the health, family and financial problems he was suffering at that time. Mr Carr submitted that Mr Pesic's situation has not improved since then. The accountant's letter showed that Mr Pesic's business income had declined by about a third in 2018 from what it was in 2016 and 2017. Mr Carr submitted that Mr Pesic would need to pay any fine and costs order imposed, as he cannot afford to be a bankrupt if he is to maintain his motor vehicle repairer's licence.
Mr Pesic had similarly opposed a costs order in the Local Court. The Local Court, in a careful analysis, concluded that it was appropriate to make a costs order to compensate the prosecutor, as the successful party, for the expense incurred in bringing the proceedings, not to punish the offender as the unsuccessful party, citing Environment Protection Authority v Hanna [2018] NSWLEC 80 at [280]-[285]. The fact that an offender might be of limited financial means is not necessarily a reason not to make a costs order against the offender. The Local Court reduced the amount of costs ordered to account for the fact that the prosecutor did not prove the alleged illegal parking and storage of motor vehicles.
Likewise, I consider that the Council, as the successful party on this appeal, should be compensated for the costs it has incurred in defending the appeal brought by Mr Pesic. There is no conduct of the Council or other circumstance that would disentitle the Council from an award of costs.
The fact that Mr Pesic might have financial difficulty in paying the costs order is not necessarily a reason for not making the costs order. In any event, the evidence of Mr Pesic's financial position is extremely limited. Mr Pesic's email from November 2016 is over two years old, and it expressed a broad and unparticularised statement of his financial troubles. The accountant's letter revealed that Mr Pesic's business income dropped in 2018 from what had been earned in 2016 and 2017, but still showed a positive financial position. There is otherwise no evidence of Mr Pesic's income or his assets and liabilities. The evidence is insufficient for me to conclude that Mr Pesic would not be able to meet a costs order.
The Court: 1. Grants leave under s 33 of the Crimes (Appeal and Review) Act 2001 to Mr Pesic to appeal under s 31 against the sentence imposed by the Local Court on 25 July 2018. 2. Dismisses the appeal against the sentence imposed by the Local Court on 25 July 2018. 3. Orders Mr Pesic to pay Sutherland Shire Council's costs of the appeal.

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: 02 April 2019

(2009) 170 LGERA 253

(2006) 145 LGERA 189

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