Port Macquarie-Hastings Council v David Peter Waite

Land and Environment Court (NSW)|2020-05-05|Before: Duggan J

Nature of the proceedings

David Peter Waite (the Defendant) has been charged with the following offences: 1. Proceedings 2018/288699 (Condition Charge) - between 4 May 2017 and 1 June 2018, in breach of s 4.2(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act), the Defendant carried out development on the Property otherwise than in accordance with the conditions of a development consent obtained and in force for a temporary caravan park associated with events at Timbertown, in that he failed to obtain approval under the Local Government Act 1993 (LG Act) prior to the use of the temporary caravan park; 2. Proceedings 2018/288700 (LG Act Charge) - between 20 May 2017 and 1 June 2018, in breach of s 626(3) of the LG Act, the Defendant carried out an activity (the operation of a caravan park/camping ground on the Property) being an activity specified in Part F of the Table to s 68 of the LG Act, without having obtained a prior approval from the Council for the carrying out of that activity as required under Part 1 of Chapter 7 of the LG Act; 3. Proceedings 2018/288697 (Toilet Facilities Charge) - between 26 June 2016 and 1 June 2017, in breach of s 76A(1)(a) and s 125(1) of the EP&A Act, the Defendant erected structures for use as toilet facilities on the Property, without development consent, where development consent was required by an environmental planning instrument for that development; and 4. Proceedings 2019/139059 (Cabins Charge) - between 1 February 2017 and 1 June 2017, in breach of s 76A(1)(a) and s 125(1) of the EP&A Act, the Defendant erected structures for use as cabins on the Property, without development consent, where development consent was required by an environmental planning instrument for that development.
The Defendant has pleaded guilty to all four charges.

Nature of charges to which guilty pleas entered

The relevant statutory provisions creating the offences are: 1. Condition Charge (EP&A Act): 4.2 Development that needs consent (1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument. 1. LG Act Charge: 68 What activities, generally, require the approval of the council? (1) A person may carry out an activity specified in the following Table only with the prior approval of the council, except in so far as this Act, the regulations or a local policy adopted under Part 3 allows the activity to be carried out without that approval. … Table Approvals … Part F Other activities … 2 Operate a caravan park or camping ground … 626 Failure to obtain approval … (3) A person who carries out an activity specified in Parts B-F of the Table to section 68 without having obtained a prior approval of the council under Part 1 of Chapter 7 required for the carrying out of that activity is guilty of an offence. … 1. Toilet Facilities Charge and Cabins Charge (EP&A Act): 76A Development that needs consent (1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) such a consent has been obtained and is in force, … 125 Offences against this Act and the regulations (1) Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Secretary, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act. …

The purposes of sentencing

The Crimes (Sentencing Procedure) Act 1999 (CSP Act) identifies the purposes of sentencing as: 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.
As outlined in Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698-699 (citations omitted) there are also a number of sentencing principles that must be borne in mind when determining an appropriate sentence including: Before considering the matters which enlarge the seriousness of the offence, and those which mitigate it, it is necessary to have regard to a number of general principles of sentencing which, in the circumstances of this case, are of particular relevance. 1. While it is the function of the Court itself to assess the seriousness of the offence in question, the maximum penalty available for an offence reflects the "public expression" by parliament of the seriousness of the offence. Here, the maximum penalty is $125,000. Such a large penalty indicates the gravity of the offence as perceived by the community. The task of a court is to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the scale of penalty set by the legislature from zero to the maximum. 2. A maximum penalty is to be imposed where the case falls within the worst category of cases for which the penalty is prescribed. This is to be determined on the facts of the case. However, "that does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognisably outside the worst category". 3. The Court must keep in mind not only the facts which establish the seriousness of the offence but also those which tend to mitigate that seriousness or exculpate the offender. In this process, where a relevant fact is the subject of conflicting evidence, and where that evidence is of like probability, the Court should resolve the conflict of fact in favour of the offender. 4. While the offender can only be sentenced for the offence for which it has been convicted, the court is "bound to take into consideration the circumstances surrounding the offence of which the prisoner has been convicted, so long as those circumstances are not inconsistent with the plea or verdict". Such an approach is consistent with the Court's proper evaluation of an offender's antecedent history where it does not lead to the imposition of a penalty disproportionate to the gravity of the particular offence(s) charged.

Statutory matters required to be taken into account in sentencing

For the purposes of sentencing in this matter the factors as provided in s 21A of the CSP Act are relevant. Those provisions indicate the relevant considerations relating to aggravating, mitigating and other factors in sentencing. Where a Prosecutor contends that a particular sentencing consideration should be treated as an aggravating feature, it must establish by evidence, beyond reasonable doubt, the presence of such aggravating factor. Where a Defendant contends for the presence of a mitigating factor in sentencing it must establish the presence of such factor on the balance of probabilities: Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 at [131].
In these proceedings the Prosecutor has not identified any aggravating features of the conduct relating to the four charges that would warrant consideration in accordance with the provisions of s 21A(2) of the CSP Act.
The Defendant has identified the following mitigating factors in s 21A(3) of the CSP Act that he submits are relevant to the determination of sentence in connection with the four charges: 21A Aggravating, mitigating and other factors in sentencing (1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters-- (a) the aggravating factors referred to in subsection (2) that are relevant and known to the court, (b) the mitigating factors referred to in subsection (3) that are relevant and known to the court, (c) any other objective or subjective factor that affects the relative seriousness of the offence. The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law. … (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows-- (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, … … … (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) the remorse shown by the offender for the offence, but only if-- (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), … (k) a plea of guilty by the offender (as provided by section 22 or Division 1A), … (m) assistance by the offender to law enforcement authorities (as provided by section 23), … (4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so. (5) The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence.

Objective seriousness of offences

The primary factor to be considered in sentencing is the objective seriousness of the offences. The objective seriousness of the offence fixes both the upper and lower limits of proportionate punishment: the upper, as a sentence should never exceed that which can be identified as proportionate to the gravity of the particular crime; and, the lower, as an allowance for subjective considerations can never produce a punishment that does not reflect the objective seriousness of the offence: Environment Protection Authority v Waste Recycling Corporation (2006) 148 LGERA 299 at [139]-[140].
The objective seriousness of the offence is to be judged by two principal components: the precise acts or omissions of the offender; and, the consequences of those acts or omissions: Environment Protection Authority v Baiada Poultry Pty Ltd (2008) 163 LGERA 71 at [22].

Nature of offences and maximum penalty

Each of the four offences is a strict liability offence. The EP&A Act offences carry a maximum penalty, for an individual, of $500,000: s 9.52(3) EP&A Act. The LGA Act offence carries a maximum penalty of $2,200. The strict liability nature of the offence and the quantum of the maximum penalty are indicators of the public expression by parliament of the seriousness of the offence and the gravity of the offences as perceived by the community: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359; Camilleri's Stock Feeds Pty Ltd at 698.
In these proceedings the Conditions Charge and the LG Act Charge both relate to the failure to obtain the LG Act approval. Whilst the requirement to obtain the LG Act approval in each charge was required by a different statutory regime, the act causing the breach and the consequence of the breach were identical in each case. Accordingly, the Prosecutor acknowledged that with respect to the Condition Charge, the objective seriousness of the offence of that charge should be determined having regard to the parliamentary expression of seriousness as reflected in the maximum penalty as provided for in the LG Act, and not that provided for in the EP&A Act.

Cabins Charge

The Defendant had transported to the Premises two pre-fabricated units that each contained four cabins. The cabins were placed on small concrete piers.
The Defendant, by his guilty plea, accepts that the placing of the cabins on the land would fall within the definition of development and the erection of a building, presumably pursuant to sub-paragraph (b) of the EP&A Act definition in s 1.4 which provides: erection of a building includes - (a) the rebuilding of, the making of alterations to, or the enlargement or extension of, a building, or (b) the placing or relocating of a building on land, or (c) enclosing a public place in connection with the construction of a building, or (d) erecting an advertising structure over a public road, or (e) extending a balcony, awning, sunshade or similar structure or an essential service pipe beyond the alignment of a public road, but does not include any act, matter or thing excluded by the regulations (either generally for the purposes of this Act or only for the purposes of specified provisions of this Act).
Development is defined in s 1.5 as including the erection of a building.
The Defendant, however, submitted that, but for the presence of a full kitchen, the cabins would have fallen within the definition of a moveable dwelling and therefore could have been placed upon the land without development consent pursuant to the provisions of cl 8(4A) State Environmental Planning Policy No 21 - Caravan Parks (SEPP 21) which provides: (4A) Except as provided by subclause (4), nothing in this Policy or any other environmental planning instrument requires separate development consent to be obtained for the installation or placement of a moveable dwelling on land on which development for the purposes of a caravan park is being lawfully carried out.
Moveable dwelling has the same meaning as defined in the Dictionary to the LG Act that provides: moveable dwelling means - (a) any tent, or any caravan or other van or other portable device (whether on wheels or not), used for human habitation, or (b) a manufactured home, or (c) any conveyance, structure or thing of a class or description prescribed by the regulations for the purposes of this definition. And defines a manufactured home as: manufactured home means a self-contained dwelling (that is, a dwelling that includes at least one kitchen, bathroom, bedroom and living area and that also includes toilet and laundry facilities), being a dwelling - (a) that comprises one or more major sections, and (b) that is not a motor vehicle, trailer or other registrable vehicle within the meaning of the Road Transport Act 2013, and includes any associated structures that form part of the dwelling.
The Council does not contest that, but for the want of a kitchen, the cabins could have been placed on the land without development consent. The Council does, however, suggest that such factor should not be given much weight when considering issues of remorse and contrition. The submissions relating to this factor are dealt with below.
There was no contention by the Prosecutor that the cabins: were not placed in an environmentally acceptable manner; that the placement of the cabins caused any environmental harm; were unsuitable structurally; constructed or manufactured inappropriately; or otherwise unacceptable. The defect, being the lack of a kitchen, was one that went to the classification of the built form and was one that related to the internal facilities of the cabin. The lack of a full kitchen internal to the cabins did not manifest a perceptible difference to the external physical or amenity impacts arising from the cabin as compared to a cabin with a full kitchen.
The Defendant deposes in his affidavit sworn on 31 March 2020 (Defendant's Affidavit) as to the reasons why he did not obtain development consent for the erection of the cabins. He says: 40 It was my understanding at the time that the cabins were "moveable dwellings" as they are not affixed to the ground. Rather, they were placed on small concrete piers and can be easily moved. … 42 When I purchased the cabins, and when they were delivered, I therefore thought the cabins did not require any further approval as they are on designated sites within a caravan park.
There is a statutory obligation placed upon all persons who carry out development to obtain, where necessary, development consent and comply with the terms of that consent. The planning regime relies upon the adherence to this process to assess what is an appropriate form of development and manage the impacts from that development through the consent process. If that process is not adhered to and development is unassessed, potentially damaging consequences can occur.
In this case the Defendant did not obtain the necessary development consent prior to the installation of the cabins. This prevented the Council from assessing the potential impact of that development and managing any impacts where appropriate. However, apart from identifying this breach of the EP&A Act, the Council has not suggested that, either, an approval would not have been capable of being granted, if sought, or that any adverse consequence (either actual or the potential for) arose from the placement of the cabins.
Further, the unchallenged evidence of the Defendant is that this was not a flagrant breach of the legislative requirements. This evidence is supported by the largely contemporaneous explanations he gave to the Council during the investigation. The evidence discloses that he turned his mind to whether development consent was required before the cabins were installed. He formed a not unreasonable belief that the cabins fell within the characterisation of a moveable dwelling, a form of development which did not require development consent. He was mistaken, absent a kitchen, this particular form of cabin did require development consent, which he did not obtain.
The precise acts that relate to this charge and the consequences of those acts in the circumstances of this case place this conduct at the low end of the scale of objective seriousness.

Toilet Facilities Charge

Again, with the guilty plea in this matter, the Defendant accepts that the work relating to the toilet facilities was the erection of a building that required development consent, likely falling within sub-paragraph (a) of the definition of "erection of a building" referred to at [43] above.
There is very limited evidence presented in this sentence hearing by the Prosecutor as to what precise acts were undertaken so as to comprise the erection of this structure. The only evidence that the Prosecutor has adduced are those facts that have been agreed in the Statement of Agreed Facts. None of those facts identify the nature and extent of the work undertaken that comprise the asserted erection of the toilet facilities.
The only evidence that has been presented is that the works that comprise the erection were generally described as being construction works (at [72] of the Agreed Statement of Facts and folios 55, 56 and 57 of the annexures thereto) and "upgrade", "renovate" and "revamp" (at [34(a)] of the Defendant's Affidavit)).
Such descriptors suggests that rather than the erection of an entirely new building to accommodate the toilet facilities, the existing amenities block (shown on the approved Temporary Caravan Consent plans at folio 12 of the annexures to the Agreed Statement of Facts) was modified in some unidentified way to operate as toilet facilities for the approved Temporary Caravan Park Consent use.
The nature and extent of those works (apart from a description of the materials and the nature of the trades utilised to carry out the work) is unable to be quantified. In particular, there is no evidence that the facilities created new connections to water or sewer or introduced new facilities not otherwise present in the existing amenities block.
However, notwithstanding this lack of evidence as to the nature and extent of the works, the Prosecutor does not submit that such erection of the toilet facilites caused any environmental harm or was unsuitable structurally, constructed or manufactured inappropriately or otherwise unacceptable.
The Defendant gave uncontested evidence at [34(a)] of the Defendant's Affidavit that: I did not think I needed to obtain separate consent to upgrade the existing amenities block in that location, in addition to the consent granted to DA 2016/791 because the amenities block is shown on the approved plans for that consent….
Such statement is consistent with the explanation in the Defendant's response to the Show Cause Letter provided on 4 June 2017.
The same considerations of the requirement to obtain development consent as identified at [50]-[51] above, apply with respect to his breach.
Again, as in the Cabins Charge, the Defendant does not appear to have flagrantly breached the requirement to obtain development consent. The Defendant turned his mind to whether development consent was required for the renovation of the toilet facilities. He formed a not wholly unreasonable belief that the "renovation" of an existing amenities block did not require development consent. He was mistaken. There is no evidence to suggest that his mistaken opinion was unreasonable, a deficiency which is compounded by the lack of evidence as to the extent and nature of the work. Accordingly, it is not open to find that the nature and extent of the work or any other factor would render this mistaken opinion unreasonable.
On the evidence available, the precise acts that relate to this charge and the consequences of those acts in the circumstances of this case place this conduct at the low end of the scale of objective seriousness.

LG Act Charge

Prior to commencing the use for the purpose of a caravan park, the Defendant was required to obtain approval pursuant to s 68 of the LG Act. That requirement operated independently of any provisions of his Temporary Caravan Park Consent. His lack of awareness of that requirement does not absolve him of his obligation to ensure that all necessary consents are obtained prior to carrying out a use for a caravan park. To the extent that the Defendant suggests that he was not made aware of this requirement by the Council, it is not the Council's responsibility to provide advice on the consents that are required. It is the responsibility of every operator to ensure, for themselves, that they have obtained all necessary consents. The fact that the offence is one of strict liability emphasises the legislative intent that the responsibility rests on the person proposing to carry out the use and that a lack of understanding or necessary investigation is not sufficient to reduce culpability.
The Defendant has sought to regularise this breach with the lodging of the appropriate application with the Council on 18 September 2017. That application remains undetermined by the Council. The Council has requested additional information from the Defendant to enable the matter to be determined. However, it does appear that there has been delay on both sides that has left this application undetermined for over two years. With the lapsing of time the Defendant does not have a right of deemed refusal appeal. Until the Council determines the application there is little the Defendant can do to speed up the process.
The length of time he has been operating the caravan park without the approval has been extensive. However, with some attempt to regularise the deficiency and no evidence from Council that the failure to obtain the approval has resulted in any actual or potential harm, reduces to an extent the objective seriousness of the offence.
The precise acts that relate to this charge and the consequences of those acts in the circumstances of this case place this conduct in the middle range of the scale of objective seriousness.

Condition Charge

The facts and circumstances of this Charge are identical to the LG Act Charge as it relates to a failure to comply with the conditions of the development consent that required all LG Act approvals to be obtained.
For the reasons outlined in connection with that charge, this offence would also be considered in the middle range of the scale of objective seriousness. As noted above at [41] above the objective seriousness of this Charge is to be considered in light of the public expression of the seriousness of the charge as reflected in the maximum penalty provided for in the LG Act for the offence of a failure to obtain the necessary s 68 Approval.

Conclusions on objective seriousness

For the reasons outlined, the Cabins Charge and the Toilet Facilities Charge are of low objective seriousness, and the LG Act and Conditions Charges are of mid objective seriousness.

Contrition and remorse - s 21A(3)(i) CSP Act

The Defendant deposed in his affidavit sworn 31 March 2020: Mitigation 45 I deeply regret having misunderstood what was required of me by Council before erecting the amenities block and having the cabins delivered, and commencing operation of the campground/ caravan park. It was never my intention to breach any laws or to not obtain required consents or approvals. 46 I have had numerous conversations with the duty planner at Council to try and understand what was and what is required. 47 I also engaged a planner, Michelle Chapman a Director and Principal of "All about Planning" to try and sort through the issues with Council, lodge the correct applications and provide the correct information. 48 I have found it very difficult to engage constructively with Council to resolve the matters which have been raised in these proceedings, in particular, to understand exactly what Council requires of me to resolve things. 49 It has also been very confusing trying to comply with the conditions of development consent as it is not entirely clear how the approval for a temporary campground should interact with the approval for a permanent campground. 50 I attempted on several occasions to clarify with Council what approvals were required, the status of my various applications, and to provide the information that Council requested. 51 Going forward, I will more carefully check the conditions of consents to ensure compliance and avoid misunderstandings as to what is required pursuant to the consent, in particular where a consent requires further approvals or work to be undertaken. 52 On 6 November 2019, Carlo Zoppo (Council's solicitor) sent a letter to my solicitor in these proceedings which explained the outstanding information Council required for the section 68 application to operate a caravan park. A copy of the letter is annexed and marked TAB 12. 53 I responded directly to Mr Zoppo as soon as l could, on 7 November 2019 with all of the required information. A copy of my correspondence to Mr Zoppo, dated 7 November 2019, is annexed and marked TAB 13. 54 I have not received any response from Mr Zoppo. 55 As explained at paragraph 26 above, I have done what I can to respond to Council's requests for further information in relation to my section 68 application to operate a caravan park. This has not been determined by Council. 56 For abundant caution, I also lodged a Building Information Certificate (BIC) application for the amenities block and the cabins (lodged on 6 November 2019) to regularise it. Copies of the BIC applications in relation to the amenities block, and in relation to the cabins, are provided at TAB 14. These BIC applications have not been determined by Council.
The Prosecutor contends that the Court would not accept that the Defendant is genuine in his expressions of contrition and remorse. In the Prosecutor's written submissions at [85] it was said: 85 When assessing remorse or contrition, the Court would find that there is none. The Defendant is a disgruntled developer with no insight into his offending.
This submission was indicated in the written submissions at [70]-[84] to be founded upon the assertion that the Defendant had: 1. Notwithstanding the Defendant being made aware from July 2017 that he was operating the caravan park contrary to the relevant legislative provisions, he continued to advertise (by placement of a sign at the premises) a commercial fee of $10 for occupation of the caravan site; 2. Allowed persons to use the caravan site for accommodation for a fee; 3. Sought extensions on the period for compliance with the Notice issued to him by Council; and 4. Prioritised the continuation of the commercial operation of the caravan park over compliance with the consent.
Further submissions were made relating to the "publication" of a leaflet relating to the Premises. It was a principle submission of the Prosecutor that the leaflet impacted upon the assessment of the Defendant's asserted remorse. In order to understand this submission it is necessary to set out the text of the leaflet which was as follows: HINDERING THE PRESERVATION OF HERITAGE As a local family we purchased Timbertown from a financially bankrupt Port Macquarie Hastings Council in 2010. The park has always struggled financially since its beginning. Visitors often ask do we get any council or government support. No we don't, we wish our local council could realise the financial benefits that Timbertown brings to the region just as we do. Port Macquarie Hastings Council commenced legal action against us for minor breeches of the local government act late 2017/2018. This has potentially crippled the park with legal fees over $300,000. Instead of pursuing any potential wrongdoing reasonably (unknown to us) they went straight to the Supreme Court. The future of this park is now questionable. To date the Mayor, Councillors and General Manger has (sic) been gagged from discussing a reasonable and appropriate resolution. Apart from the financial implications for Timbertown it has also cost a ridiculous amount of rate payer's money for council to embark on this crusade which most of it is not recoverable by them either. So as you look around and see that some buildings etc. need to be repaired so do we. We know what improvements need to be made in the park but our hands are tied at the moment spending money on legal fees. We have never knowingly embarked on any wrong doing. This could have been sorted with a meeting or a letter. Instead all power has been given to a council ranger to decide without thought how to deal with Timbertown. A ranger who has had it in for Timbertown since council sold it, with one drama after another. Their legacy will be that council could never operate Timbertown in a sustainable way and we believe they are trying to ensure no one has the chance to either. We invite our visitors to send an email to our local council and ask them to stop this crusade and to help Timbertown have a brighter future. Our heritage is important to us and many locals and visitors. So instead of going on trip advisor or google to say parts of the park are run down maybe you could help us to improve it and be proactive in preserving heritage. Our history deserves so much more!
It was contended by the Prosecutor that the dissemination of the leaflet demonstrated that: 83 In so far as the conduct of the Defendant since the hearing in September 2019 … the Defendant is engaged in a campaign to encourage the public view that: (a) The breaches by the Defendant are minor; (b) The unavailability of the caravan and theme park to the public is a consequence of an unreasonable prosecution of the Defendant; (c) ratepayers' money is being misused for this purpose; (d) Council had failed to resolve the issue with a meeting or a letter; (e) the inability to make repairs to the buildings is a consequence of a "crusade" by Council and in particular, one council inspector, against the defendant. 84 The leaflet demonstrates a willingness on the part of the Defendant to misrepresent the facts. The breaches are not minor; so much so is apparent from the maximum penalties and the protracted period over which the breaches occurred. The unavailability of the caravan and theme park to the public is as a consequence of the Defendant failing to provide further information in relation to the s 68 application until November 2019, and the failure thereafter to provide the engineering certificate and site survey as required by Council to discontinue the operation of the caravan park without the appropriate authorisations [sic]. The accusations that Council failed to correspond with the Defendant in a way to resolve the matter is not supported by the evidence on sentence, the plea of guilty to the 4 charges is to the contrary of the accusations of capriciousness by the Council towards the Defendant in the exercise of its functions.
The Defendant contends that the Prosecutor is not permitted to make such submission as to remorse and contrition as it elected not to cross-examine the Defendant on the content of his affidavit at all or more particularly dealing with his expression of contrition or remorse. Further, the implications the Prosecutor seeks to draw from the leaflet are not express on its face and accordingly, should have been put the Defendant. Absent such cross-examination the Prosecutor should be precluded from making such a submission.
The totality of the evidence does not support the submission of the Prosecutor that the Defendant is without remorse as to his actions. The evidence discloses that he has worked to regularise the breaches through the lodgement of applications, modifications, BIC applications and the like. He has worked with external professionals to ensure that he obtains the necessary approvals. Whilst he has, at times, not acted with particular urgency, this does not diminish the totality of actions he has undertaken such that it would be accepted that he has demonstrated no remorse.
Further, the Defendant has sworn an affidavit in clear terms that attests to the reasons for the commission of the offence and the regret he has for his conduct in breaching the law. He has pleaded guilty. He was not cross-examined on any of these statements of regret. If the Prosecutor is to submit that the Defendant is lying (which can be the only available inference to be drawn from this submission) then the Prosecutor should have put that proposition to the Defendant. Absent the Defendant being given the opportunity to address the foundation for this submission it would not be fair to the Defendant to reject his direct and uncontested evidence.
The leaflet is perhaps regrettable as to its timing. However, the text of the leaflet alone does not indicate that the Defendant shows no remorse and is merely a disgruntled developer. It is true the leaflet indicates clear dissatisfaction with the process and a desire to resolve the matter without expense and legal proceedings. However, publicly disagreeing with the Council, and the approach it has taken, is a democratic entitlement. Seeking to enlist community support for his position is also wholly available to him. The leaflet does not, on its face, diminish the uncontested statements of remorse deposed to in the Defendant's Affidavit such that the Court would accept that he has demonstrated no remorse.
The Defendant has provided evidence that he has accepted responsibility for his actions and has acknowledged any injury, loss or damage caused by his actions and has taken steps, where available, to rectify the breaches through the approval and BIC processes. It is therefore appropriate that such expressions of remorse be considered as a relevant mitigating factor in the determination of his sentence.

Character - s 21A(3)(f) CSP Act

The Defendant provided two detailed character references. Each of the persons indicated an understanding of the nature of the offences with which the Defendant had been charged and attested that the commission of such offences was, in their opinion, out of the Defendant's otherwise good character and that he was unlikely to commit a similar offence in the future.
I consider that the Defendant is a man of otherwise good character and that the commission of these offences were actions out of character.

Prior convictions - s 21A(2)(d) CSP Act

The Defendant has no record of any prior convictions.

Early plea of guilty - s 22 and s 21A(3)(k) CSP Act

Section 21A(3)(k) CSP Act permits the Court to have regard, as a mitigating factor, to the entry of a plea of guilty in accordance with s 22 of that Act. Section 22 relevantly provides: 22 Guilty plea to be taken into account for offences not dealt with on indictment (1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account - (a) the fact that the offender has pleaded guilty, and (b) when the offender pleaded guilty or indicated an intention to plead guilty, and (c) the circumstances in which the offender indicated an intention to plead guilty, and may accordingly impose a lesser penalty than it would otherwise have imposed. (1A) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.
The Prosecutor submits that the timing of the entry of the pleas of guilty reduces the utilitarian value of the pleas as: 1. With respect to the LG Act Charge, the Defendant's plea was entered only after the Prosecutor had prepared all of its evidence together with the relevant statutory notice under s 247E and five days before the matter had been listed for a contested hearing. These factors indicate that a reduction in the lower end of the range for a guilty plea should be allowed; 2. With respect to the Condition Charge, the plea was entered after a resolution of a question relating to the duplicity of the charge and the amendment of the Summons on 2 September 2019. However, the Defendant's intention to plead guilty to an amended charge was only indicated on 26 August 2019. These factors indicate that the Defendant be allowed a discount at the mid-range for the plea of guilty; and 3. With respect to the Toilet Facilities and Cabins Charges, the pleas were only entered after a five day hearing on an evidentiary issue which, whilst the Defendant was successful in that argument, did not result in any amendment to the charges. This factor indicates that the Defendant should be allowed a discount at the lower end of the available range.
The Defendant submits that: 1. As to the Condition Charge, the Defendant entered a plea of guilty immediately upon the Summons being amended by the Prosecutor. Prior to that date the Summons was infected with duplicity. Accordingly, the entry of the plea in the circumstances was at the first opportunity such that the Defendant should be given the maximum 25% discount for the plea to this charge; 2. As to the Toilet Facilities and Cabins Charges, the Defendant should be given a 15% discount for the guilty plea. The reduction is reflective of utilitarian value of avoiding a contested trial; 3. As to the LG Act Charge, a discount of the full 25% should be given as, whilst not at the first opportunity, the plea was entered early in that it was entered six months prior to the date the matters had been listed for hearing.
The discount is to be determined having regard to the utilitarian value of the plea of guilty. In each case the plea has obviated the need for a fully contested hearing. The agreement to an extensive Agreed Statement of Facts with considerable documentary material attached has limited the time required for the sentence hearing of these four charges and has contributed to the utilitarian value of the pleas of guilty.
It is to be recognised that whilst the entry of the plea of guilty in each matter in conjunction with the agreement as to the facts upon which the sentence was to be determined does provide utilitarian value in the saving of court hearing time, this utilitarian value is only part of the consideration. The timing of the plea and the extent to which the Prosecutor has been required to comply with the statutory certification process and prepare for a contested hearing must also be weighed in the determination of the utilitarian value. In this case, each of the pleas were not entered before a hearing date for a contested hearing had been fixed. In fact, the contested hearing was conducted in part over a period of five days before Pepper J to determine the evidentiary question. The Defendant's success in that application did not alter the nature of the elements of any of the charges that were before her Honour or the particulars of those charges. Whilst each charge had the plea entered in different circumstances and at different times, I consider the utilitarian value of the plea is, in this case, exclusively relating to the Statement of Facts and the plea hearing being fixed and determined on those facts, rather than contested facts. Having regard to that utilitarian value, a discount of 10% should be given in each of the four charges.

Deterrence and denunciation

It was not submitted by the Prosecutor that there was a need for specific deterrence in this case. I am satisfied that the Defendant has, through this process, identified the shortcomings in his management of the caravan park and the requirement to ensure, through his own efforts, that all relevant statutory requirements are met. Accordingly, I consider that the need for specific deterrence will be met by the recording of a conviction in each of the charges.
The Prosecutor did submit that there was a need to impose more than a nominal fine in these proceedings for the purpose of achieving general deterrence. The Prosecutor cited the reasoning of Preston CJ in Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 at [101]-[104] where his Honour observed: 101 The sentence of the Court is a public denunciation of the conduct of the offender. The sentence must ensure that the offender is held accountable for his or her actions and is adequately punished or given his just deserts. The sentence must deter the offender from committing similar crimes in the future. This is important for persons such as the appellant who are likely to carry out development in the future in accordance with development consents that contain conditions intended to protect the environment. 102 Most importantly, the sentence of the Court needs to operate as a powerful factor in preventing the commission of similar crimes by persons who might be tempted to do so by the prospect that, if they are caught, only light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597. This is particularly so in the context of unlawful development, having regard to the policy considerations articulated in a number of cases including Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89 and Carlino v Leichhardt Municipal Council (2005) 144 LGERA 235. 103 For environmental offences, the purpose of sentencing of general deterrence is of central importance. Many of the cases in which courts have so stated are set out in the judgment in Cameron v Eurobodalla Shire Council [2006] NSWLEC 47 at [59], [71]-[80]. See also Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359; Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 701; 82 LGERA 21 at 39; Carlino v Leichhardt Municipal Council at [31] and Byers v Leichhardt Municipal Council [2006] NSWLEC 82. Persons will not be deterred from committing environmental offences by nominal fines: Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 at 354; Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 at [139]-[142], [150], [151] and Eurobodalla Shire Council v Wheelhouse at [17]. 104 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) 143 LGERA 155 at [60]; Cameron v Eurobodalla Shire Council at [72] and Byers v Leichhardt Municipal Council at [83], [85].
The four charges in these proceedings are properly characterised as environmental crimes. As observed by his Honour, it has been recognised that in offences of that character considerations relating to general deterrence should be a consideration of "central importance". However, I do not understand his Honour to be suggesting that a sentence would be imposed, taking such a factor into account, which would result in the sentence being disproportionate to the objective seriousness of the particular criminal activity. In fact, his Honour at [106], in reciting the reasoning from Carlino v Leichhardt Municipal Council (2005) 144 LGERA 235 at [31] acknowledges that whilst general deterrence is a "major consideration": For strict liability offences, however, care must be taken to ensure that the penalty imposed does not cause the offender to shoulder an unfair burden of community education: Walden v Hensler (1987) 163 CLR 561 at 570
The imposition of a penalty and the recording of convictions in circumstances where the offences are at the lower end of the scale of objective seriousness does operate to send an appropriate message to the community that crimes even at the lower end of the scale will not be overlooked, but that, where appropriate, charges will be brought and criminal convictions recorded. Whilst the fines that are proposed to be made in relation to these charges would seem at the lower end of the range, the fines are reflective of the synthesis of objective and subjective factors that are required to be considered to determine the appropriate sentence, and reflect the limits of the sentence as determined by reference to the objective seriousness of the charges.
In this matter, to impose a fine solely to achieve the object of "avoiding nominal fines" and thereby conveying a stronger message to potential offenders would not reflect the objective seriousness of the circumstances of these particular offences. General deterrence considerations cannot overcome the overarching principle that the sentence must be proportionate to the nature of the particular circumstances of the criminal actions to which it relates.
In this case, the Toilet Facilities Charge and the Cabins Charge fall at the low end of the scale of objective seriousness. The LG Act Charge and the Condition Charge fall at the middle range of objective seriousness (but have a low maximum penalty). The penalties will be fixed to reflect the proportional criminality and will not be increased solely for the purpose of deterring other offenders with the consequence of imposing a disproportionate sentence on this offender.

Legal costs

The quantum of any legal costs a defendant is required to pay as a result of the proceedings has been determined to be a relevant factor as part of the punishment imposed in the determination of the appropriate sentence: Environment Protection Authority v Barnes [2006] NSWCCA 246 at [88]; Environment Protection Authority v Causmag Ore Co Pty Ltd [2015] NSWLEC 58 at [123].
In this case, the Defendant has agreed to pay the Prosecutor's costs relating to the four charges in the sum of $65,000. This is not a nominal sum and it is appropriate that this liability be taken into account in the subjective considerations in determining sentence.

Means to pay

The Defendant has adduced by the provision of detailed financial records an indication of his limited means to pay a large fine and what impact such a fine would have upon him personally, his business, and his family. I accept that the Defendant has limited means to pay a number of large fines, however, he is not without any means.
Section 6 of the Fines Act 1996 requires the Court to consider, in the exercise of the discretion to fix the amount of any fine, any information regarding the means of the Defendant. The material provided will be considered in the determination of the quantum of any fine.

Proceedings could have been commenced in the Local Court

Both parties accepted that each of the four charges could have been commenced in the Local Court. In the Local Court the maximum penalty that is able to be imposed is less than where the same proceedings are brought in this Court. This factor has been found to be a relevant consideration in determining sentence for offences such as the four before the Court: Harris v Harrison (2014) 86 NSWLR 422 at [96]-[98].
It is appropriate that this factor be taken into account in the subjective considerations in determining sentence.

Appropriate sentence

The appropriate sentence is to be derived by an "instinctive synthesis" of all of the relevant factors in order to determine an appropriate proportionate sentence: Markarian v The Queen (2005) 228 CLR 357.

Totality principle

The principle of totality is a relevant sentencing principle in the present case where each of the offences with which the Defendant has been charged, and which he has pleaded guilty, arise from the same broad facts and circumstances, relating to acts of commission of the commencement of the caravan park use.
The principle has been concisely described by the majority of the High Court in Pearce v The Queen (1998) 194 CLR 610 at 623 [40] as: To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.
As outlined above, the elements of each offence are coincident with respect to the conduct and circumstances giving rise to the commission of each offence and the consequence of each offence such that the application of the sentencing principle of totality is appropriate to be applied in the circumstances of this case.
In this case, both the parties accept that for the LGA Act Charge and the Condition Charge the circumstances are identical. Therefore, the Prosecutor submitted (and the Defendant accepted) that the penalty imposed for one of those charges would be sufficient punishment for both of the charges, such that the totality principle would be met if an appropriate fine was imposed on only one charge and the Defendant be convicted in both charges. This approach, on the facts of this case, is appropriate.
The parties also addressed whether the principle of totality would be applicable to all four charges viewed as a whole. Whilst it is appropriate to consider all four of the charges as forming part of a course of conduct relating to the commencement of the use of the premises as a caravan park as identified above, the totality principle weighs heavily in the Defendant's favour where there is a direct overlap between the Condition Charge and the LG Act Charge. The totality principle is also applicable to the other two offences as part of the larger whole of the course of conduct, however, will have a lesser impact on the total of these two charges due to the distinct and separate actions of the placement of the cabins and the renovation of the toilet block which both required development consent for different reasons and where that consent, also for different reasons, was not obtained.
Taking into account the objective seriousness of the charges and the factors identified above, I have determined that the appropriate sentence in this case is the recording of a conviction on all charges and the imposition of a monetary penalty in the following amounts in the following three charges: 1. LG Act Charge: $1,500; 2. Cabins Charge: $3,000; and 3. Toilet Facilities Charge: $3,000. Orders
In proceedings 2018/288699 the Court makes the following Order: 1. The Defendant is convicted as charged.
In proceedings 2018/288700 the Court makes the following Orders: 1. The Defendant is convicted as charged; 2. The Defendant is fined the sum of $1,500; 3. Pursuant to s 8 of the Fines Act 1996 and s 694(1) of the Local Government Act 1993 the fine imposed by Order (2) is to be paid to the Council; and 4. The Defendant is to pay the Prosecutor's legal costs in the agreed sum of $21,666.66 pursuant to s 257B of the Criminal Procedure Act 1986.
In proceedings 2018/288697 the Court makes the following Orders: 1. The Defendant is convicted as charged; 2. The Defendant is fined the sum of $3,000; 3. Pursuant to s 8 of the Fines Act 1996 and s 694(1) of the Local Government Act 1993 the fine imposed by Order (2) is to be paid to the Council; and 4. The Defendant is to pay the Prosecutor's legal costs in the agreed sum of $21,666.66 pursuant to s 257B of the Criminal Procedure Act 1986.
In proceedings 2019/139059 the Court makes the following Orders: 1. The Defendant is convicted as charged; 2. The Defendant is fined the sum of $3,000; 3. Pursuant to s 8 of the Fines Act 1996 and s 694(1) of the Local Government Act 1993 the fine imposed by Order (2) is to be paid to the Council; and 4. The Defendant is to pay the Prosecutor's legal costs in the agreed sum of $21,666.66 pursuant to s 257B of the Criminal Procedure Act 1986.
The exhibits are returned.

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: 27 May 2020

(1993) 113 LGERA 357

(2005) 144 LGERA 235

(2006) 148 LGERA 299

(2006) 145 LGERA 189

(2005) 143 LGERA 155

At a glance

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Judgment (23 paragraphs)

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Cases Cited (19)

Cited By (4)