Secretary, Department of Planning and Environment v T W Perram & Partners Pty Limited

Land and Environment Court (NSW)|2017-12-05|Before: Pain J

SOLICITORS: Department of Planning and Environment (Prosecutor) Hicksons Lawyers (Defendant) File Number(s): 17/18708

Judgment

The Defendant T W Perram & Partners Pty Limited has been charged with an offence under s 125 of the Environmental Planning and Assessment Act 1979 (EPA Act) that on 23 September 2014 the Defendant failed to disclose, as required by s 147(3) of that Act, reportable political donations made by persons with a financial interest in an application to modify the approval of major project application 08-0255 when the Defendant ought reasonably to have known that political donations had been made. The summons dated 19 January 2017 particularised the offence at length and the particulars are also found in the Statement of Agreed Facts (SOAF) below.
The Defendant entered a guilty plea on the first return date of the summons being 3 March 2017.
The offence is one of strict liability. A plea of guilty means that the Defendant is taken to admit the essential elements of the offence, R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at 275.

Environmental Planning and Assessment Act 1979

Relevant provisions of the Environmental Planning and Assessment Act 1979 (EPA Act) provide: Park 6 Implementation and enforcement ... Division 4 Offences 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. … Part 8 Miscellaneous ... 147 Disclosure of political donations and gifts (1) The object of this section is to require the disclosure of relevant political donations or gifts when planning applications are made to minimise any perception of undue influence by: (a) requiring public disclosure of the political donations or gifts at the time planning applications (or public submissions relating to them) are made, and (b) providing the opportunity for appropriate decisions to be made about the persons who will determine or advise on the determination of the planning applications. ... (2) In this section: gift means a gift within the meaning of Part 6 of the Election Funding and Disclosures Act 1981. Note. A gift includes a gift of money or the provision of any other valuable thing or service for no consideration or inadequate consideration. … relevant planning application means: ... (c) an application for approval of a concept plan or project under Part 3A (or for the modification of a concept plan or of the approval for a project), or ... reportable political donation means a reportable political donation within the meaning of Part 6 of the Election Funding and Disclosures Act 1981 that is required to be disclosed under that Part. Note. Reportable political donations include those of or above $1,000. (3) A person: (a) who makes a relevant planning application to the Minister or the Secretary is required to disclose all reportable political donations (if any) made within the relevant period to anyone by any person with a financial interest in the application, or (b) ... The relevant period is the period commencing 2 years before the application or submission is made and ending when the application is determined. ... (6) The disclosure of a reportable political donation or gift under this section is to be made: (a) in, or in a statement accompanying, the relevant planning application or submission if the donation or gift is made before the application or submission is made, or (b) if the donation or gift is made afterwards, in a statement to the person to whom the relevant planning application or submission was made within 7 days after the donation or gift is made. (7) For the purposes of this section, a person has a financial interest in a relevant planning application if: (a) the person is the applicant or the person on whose behalf the application is made, or (b) the person is an owner of the site to which the application relates or has entered into an agreement to acquire the site or any part of it, or (c) the person is associated with a person referred to in paragraph (a) or (b) and is likely to obtain a financial gain if development that would be authorised by the application is authorised or carried out (other than a gain merely as a shareholder in a company listed on a stock exchange), or (d) the person has any other interest relating to the application, the site or the owner of the site that is prescribed by the regulations. ... (11) A person is guilty of an offence under section 125 in connection with the obligations under this section only if the person fails to make a disclosure of a political donation or gift in accordance with this section that the person knows, or ought reasonably to know, was made and is required to be disclosed under this section. The maximum penalty for any such offence is the maximum penalty under Part 6 of the Election Funding and Disclosures Act 1981 for making a false statement in a declaration of disclosures lodged under that Part. ... (13) This section applies to relevant planning applications or submissions made after the commencement of this section and, in relation to any such application or submission, extends to political donations or gifts made before that commencement.

Election Funding, Expenditure and Disclosures Act 1981

Relevant sections of the Election Funding, Expenditure and Disclosures Act 1981 (EFED Act) in force at the date of the offence provided: Part 1 Preliminary ... 4 Definitions (1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires: Parliament means the Parliament of New South Wales. party means a body or organisation, incorporated or unincorporated, having as one of its objects or activities the promotion of the election to Parliament or a local council of a candidate or candidates endorsed by it or by a body or organisation of which it forms a part. ... Part 6 Political donations and electoral expenditure Division 1 Preliminary ... 86 Meaning of "reportable political donation" (1) For the purposes of this Act, a reportable political donation is: (a) in the case of disclosures under this Part by a party, elected member, group, candidate or third-party campaigner - a political donation of or exceeding $1,000 made to or for the benefit of the party, elected member, group, candidate or third-party campaigner, or (b) in the case of disclosures under this Part by a major political donor - a political donation of or exceeding $1,000 made by the major political donor to or for the benefit of a party, elected member, group, candidate or third-party campaigner. (2) A political donation of less than an amount specified in subsection (1) made by an entity or other person is to be treated as a reportable political donation if that and other separate political donations made by that entity or other person to the same party, elected member, group, candidate, third-party campaigner or person within the same financial year (ending 30 June) would, if aggregated, constitute a reportable political donation under subsection (1). (3) A political donation of less than an amount specified in subsection (1) made by an entity or other person to a party is to be treated as a reportable political donation if that and other separate political donations made by that entity or other person to an associated party within the same financial year (ending 30 June) would, if aggregated, constitute a reportable political donation under subsection (1). This subsection does not apply in connection with disclosures of political donations by parties. (4) For the purposes of subsection (3), parties are associated parties if endorsed candidates of both parties were included in the same group in the last periodic Council election or are to be included in the same group in the next periodic Council election. ... Division 5 Miscellaneous 96H Offences relating to disclosures ... (2) A person who makes a statement: (a) in a declaration or other disclosure under this Part, or (b) in a request under this Part for an extension of the due date for making the disclosure, that the person knows is false, or that the person does not reasonably believe is true, is guilty of an offence. Maximum penalty: 200 penalty units or imprisonment for 12 months, or both. …

Evidence

The parties agreed a SOAF which is set out below omitting any attachments. The SOAF and accompanying documents were tendered as Exhibit A in the proceedings: 1. T.W. Perram & Partners Pty Limited (ACN 072 135 436) (the Defendant) has carried on the business of planning consultancy, involving the preparation and lodgement of development applications on behalf of its clients, since 1996. 2. On or about 2 December 2008, Elf Farm Supplies Pty Ltd (ACN 131 333 830) (Elf Farm Supplies), together with Beckhart Pty Limited (ACN 076 084 163), trading as "Elf Mushrooms", lodged a Major Project application 08_0255 for both project approval and concept plan approval for the development of a mushroom farm at Londonderry and a substrate plant at Mulgrave (the Mulgrave Site) under the former Part 3A of the Environmental Planning and Assessment Act 1979 (NSW) (the MP Application). 3. The Defendant was engaged by Elf Farm Supplies in January 2008 to assist in preparing the MP Application. Mr Terry Perram, director of the Defendant, prepared an application form and political donations disclosure statement and forwarded them to Mr Robert Tolson and Mrs Norah Tolson, directors of Elf Farm Supplies, for completion and signature. Mr Perram submitted the completed forms to the Department on 26 November 2008 (Tab 2 Agreed Bundle of Document). 4. The MP Application was made by Elf Farm Supplies to the Minister for Planning. 5. On 11 January 2012, Concept Plan Approval and Project Approval were granted by a delegate of the Minister in respect of the MP Application under the former Part 3A of the Environmental Planning and Assessment Act (the MP Approval). 6. On or about 10 December 2013, Ms Norah Tolson, then a director of the Defendant, made a donation of $990 to the NSW Liberal Party for a ticket to VIP Dinner with Gladys Berejiklian MP and Kevin Conolly MP. 7. On or about 10 December 2013, Mr Robert Tolson, then a director of the Defendant, made a donation of $990 to the NSW Liberal Party for a ticket to VIP Dinner with Gladys Berejiklian MP and Kevin Conolly MP. 8. On or about 1 February 2014, Mr Robert Tolson, then a director of the Defendant, made a donation of $200 to the NSW Liberal Party. 9. On or about 26 March 2014, Ms Norah Tolson, then a director of the Defendant, made a donation of $990 to the NSW Liberal Party for a ticket to VIP dinner with Premier Barry O'Farrell and Kevin Conolly MP. 10. On or about 26 March 2014, Mr Robert Tolson, then a director of the Defendant, made a donation of $990 to the NSW Liberal Party for a ticket to VIP dinner with Premier Barry O'Farrell and Kevin Conolly MP. 11. On or about 26 May 2014, Ms Norah Tolson, then a director of the Defendant, made a donation of $500 to the NSW Liberal Party. 12. On or around 23 September 2014, an application to modify the MP Approval in respect of the Mulgrave Site was made to the Minister on behalf of Elf Farm Supplies by the Defendant (the MOD1 Application). 13. The MOD1 Application was made via an online application form. 14. The online application form for the MOD1 Application contained the following statement: Persons lodging applications are required to declare reportable political donations (including donations of $1,000 or more) made in the previous two years. For more details, go to: www.planning.nsw.gov.au/donations. 15. The webpage "www.planning.nsw.gov.au/donations" at the time the MOD1 Application was lodged contained a link to a document titled "Disclosure of political donations and gifts: guideline - revised October 2008" (Tab 1 Agreed Bundle of Documents). 16. The online application form contained the question "Do you need to make a political donations disclosure statement?" Terry Perram of T.W. Perram & Partners Pty Ltd, in completing the online application for the MOD 1 application, did not de-select the answer "No" in response to this question. 17. The MOD1 Application did not disclose any reportable political donations and was not accompanied by a statement disclosing reportable political donations. 18. The MOD1 Application described the modifications sought to the project as follows: It is proposed to modify the approved expansion of the pre-wet processing facility and the odour management system. Pre-wet is to be carried out in tunnels rather than in a large shed and odour management from this facility is to be via ammonia scrubbers and a biofilter in lieu of a bioscrubber and chimney. Modification is requested to condition 2 of schedule 2 of the Minister's project approval. 19. A document titled "Modification to Mushroom Substrate Plant Environmental Assessment", dated February 2015 prepared by T.W. Perram & Partners Pty Ltd, submitted in support of the MOD1 Application states as follows (Executive Summary) (Tab 3 Agreed Bundle of Documents): In summary, the purpose of the modification is to change the method of processing substrate in the pre-wet stage, to improve the technology and capability of the odour management system and other changes to improve the quality of substrate produced. The modification will progress the environmental performance of the plant to comply with its Environment Protection Licence (EPL 6229). 20. On 14 March 2016, the MOD1 Application was approved by the Planning Assessment Commission. 21. The donations made by Ms Norah Tolson, who was a director of Elf Farm Supplies at the times they were made, constituted a reportable political donation within the meaning of Part 6 of the Election Funding, Expenditure and Disclosures Act 1981 and s 147(2) of the Environmental Planning and Assessment Act, because they were made in the same financial year and their aggregated sum exceeds $1,000. 22. The donations made by Ms Norah Tolson were made within the relevant period as defined in s 147(3) of the Environmental Planning and Assessment Act, being the period commencing two years prior to the lodgement of the relevant planning application and ending on the date of determination of the MOD 1 application (i.e. the period between 23 September 2012 and 14 March 2016). 23. The donations made by Mr Robert Tolson, who was a director of Elf Farm Supplies at the times they were made, constituted a reportable political donation within the meaning of Part 6 of the Election Funding, Expenditure and Disclosures Act 1981 and s 147(2) of the Environmental Planning and Assessment Act, because they were made in the same financial year and their aggregated sum exceeds $1,000. 24. The donations made by Mr Robert Tolson were made within the relevant period as defined in s 147(3) of the Environmental Planning and Assessment Act, being the period commencing two years prior to the lodgement of the relevant planning application and ending on the date of determination of the MOD 1 application (i.e. the period between 23 September 2012 and 14 March 2016). 25. At the times the donations of Ms Norah Tolson and Mr Robert Tolson (together, the Tolson Donations) were made, Ms Norah Tolson and Mr Robert Tolson were the registered proprietors of the Mulgrave Site to which the development application related. 26. At the times the Tolson Donations were made, Ms Norah Tolson and Mr Robert Tolson were directors of Elf Farm Supplies. 27. At the times the Tolson Donations were made, Ms Norah Tolson and Mr Robert Tolson were the owners of all the issued shares in Elf Farm Supplies. 28. [left blank] 29. The Defendant was required to disclose the Tolson Donations in, or in a statement accompanying, the MOD1 Application by s 147(6)(a) of the Environmental Planning and Assessment Act 1979. 30. The Defendant did not disclose the Tolson Donations to the Minister in, or in a statement accompanying, the MOD1 Application. At the time of making the MOD1 Application the Defendant ought to have, and failed to, ask the Tolsons if they had made any reportable political donations. The Defendant knew or ought reasonably to have known that: a. there was a general requirement at law to disclose reportable political donations; and b. the Tolsons had previously disclosed reportable political donations in the MP application. 31. On or about 10 February 2016, Ms Emma Barnet, an officer of the Department contacted Mr Terry Perram requesting a political donations disclosure statement in respect of the MOD1 Application. Such a request is a standard, but not legislatively mandated, practice of the Department when considering an application such as the MOD1 Application. 32. On or around 17 February 2016, Ms Norah Tolson and Mr Robert Tolson lodged Political Donations Disclosure Statements listing donations made by them between 20 January 2013 and 14 May 2015, disclosing the Tolson Donations for the purposes of the MOD 1 application, prior to the determination of the MOD1 Application (Tab 4 Agreed Bundle of Documents). 33. On or around 30 March 2016, the Department of Planning and Environment (the Department) received a letter from the NSW Environmental Defenders' Office raising concerns about failures by the Defendant to declare reportable political donations in relation to applications it had made to modify the MP Approval. 34. The facts as set out above did not come to the attention of an investigation officer within the meaning of s 127(5A) of the Environmental Planning and Assessment Act until on or about 30 March 2016. 35. On 17 June 2016 the Department issued seven notices under s 119J of the Act to the Defendant, its relevant officers and a number of related persons and entities (Notices) (Tab 5 Agreed Bundle of Documents). 36. On 18 July 2016 information and records were provided to the Department by the Defendant in response to the Notice issued to it (Tab 6 Agreed Bundle of Documents). 37. These proceedings were commenced on 19 January 2017. The Defendant entered a plea of guilty on 17 March 2017. A full discount should be given for the early plea of guilty.
Exhibit B was a computer generated record of the modification application created by the Department of Planning and Environment (the Department). In the "Introduction & Notes" section of that document a reference is made to the requirement to declare reportable political donations when lodging an application. On the final page of Exhibit B under the heading "Political Donation" and in response to the question "Do you need to make a political donations disclosure statement" the recorded response is "No".
The Defendant tendered Exhibit 1 which was an updated major project application and covering letter which was submitted in 2010. This application is referred to in the summary of Mr Perram's cross-examination at par 15 below.

Affidavit of Mr Perram

Mr Perram principal and sole employee of the Defendant swore an affidavit on 8 June 2017. Mr Perram deposed to being engaged by Elf Farm Supplies Pty Ltd (Elf Farm) to assist in preparing the major project application in January 2008 and described the process of completing the application form online and in print. He printed out and sent to Elf Farm the partially completed application form and a political donations disclosure statement. Both documents were signed and returned to Mr Perram who lodged the application on 26 November 2008. The disclosure statement was a "nil" return. This was the first time that Mr Perram had been required to provide a disclosure statement. He had submitted previous development applications on behalf of Elf Farm and other clients for which a disclosure statement was not required.
Mr Perram described the process of lodging an online application to modify the major project approval which was granted on 11 January 2012. He filled out and lodged the modification application on 23 September 2014. This was the first time Mr Perram had lodged a development application of any kind since 2008. Mr Perram deposed that the Department's website had changed in the intervening six years. Applications were to be lodged entirely online and there was no provision to save or print a copy for verification or permanent records. Mr Perram does not recall being asked to submit a political donations statement. His subsequent examination of the online process revealed that the default response on the online form is that a political disclosure statement is not required.
Mr Perram deposed that at the time of lodging the modification application he was not aware that Elf Farm or its directors Mr and Mrs Tolson had made any political donations. He did not seek instructions from Mr and Mrs Tolson concerning political donations because he was not aware that this information was required as part of the modification application. He had assumed that if the Department required any further information it would contact him. Mr Perram did not provide the application to Mr and Mrs Tolson for completion and signature as there was no facility to do so.
Mr Perram deposed that he was contacted by the Department on 10 February 2016 and asked for a political donations statement. Mr Perram immediately forwarded the request to Elf Farm and returned the completed forms to the Department upon receipt. The modification application was approved on 14 March 2016. On 17 June 2016 the Department sent a letter to Mr Perram seeking information regarding the failure to declare political donations on 23 September 2014. Mr Perram deposed that he checked his records and did not discover an application form either in print or electronic form. He did not recall the online process used in 2014 and no record of the application was available. Mr Perram responded to the Department stating that he had not submitted a political disclosure statement as one was not required.
Mr Perram deposed that he prepared a mock modification application after these proceedings commenced to revisit the online process. Screen shots of the seven-step application process were attached to his affidavit. During the final step "Confirmation" at the bottom of the page above the button "Submit" is the question: "Do you need to make a political disclosure statement?" The default response to this question is set to "No". Mr Perram confirmed that once the "Submit" button has been pressed there is no record of the application. There is no option to save or print the application during the seven-step process.
Mr Perram deposed that he had not seen an electronically generated printout of the modification application lodged in 2014 until it was shown to him as part of the Prosecutor's evidence in these proceedings.
In oral evidence Mr Perram clarified a statement made in his affidavit about the number of times he had filed a political donations disclosure statement. He had recently checked his records and noticed that in December 2010 the Department requested clarification of a matter in the major project application filed in 2008 and required an updated application accompanied by a new disclosure statement. Mr Perram submitted this document along with the new application after asking Mr and Mrs Tolson to complete and sign the forms. Therefore, at the time of the modification application in 2014, Mr Perram had previously made two political donation disclosures not one as advised in his affidavit.

Cross-examination of Mr Perram

Mr Perram was asked about his experience as an environmental consultant submitting development applications on behalf of clients. Mr Perram stated that he has worked in this profession since about 1990 and set up his own company in 1995. Mr and Mrs Tolson had been clients of his for most of this period. Mr Perram's records indicate that he has submitted about 12 development applications on behalf of clients since 2000 to both the Department and local councils. Most of these applications were for significant projects requiring multi-disciplinary input like the present case. His practice was to have his clients sign as the applicant for development. The modification application the subject of this offence is the first time he was the applicant as that was the only way he could complete the online application in one sitting.
Mr Perram was asked about his current business operations. He stated that he has been moving towards retirement for many years. Mr and Mrs Tolson and their company Elf Farm are Mr Perram's only remaining clients. In early 2017, before he knew of these proceedings, Mr Perram made another modification application on behalf of Elf Farm. He stated that he took extra care with this application after the issues he encountered in 2016 which are the subject of these proceedings. Mr Perram believed that he would have known of the importance of making complete political donations disclosures in 2014, just as he does now.
Mr Perram was asked about the Department's political donations disclosure guidelines published in 2008 and referred to in the SOAF at [15]. Mr Perram did not believe that he saw or read this document in its entirety prior to making the major project application in 2008. He did however print and ask Mr and Mrs Tolson to complete the blank form at the back of the guidelines.
Mr Perram was asked about whether someone in his position ought to have known of the need to submit a form similar to that which accompanied the original application in 2008 when he lodged the modification application in 2014. He did not agree. He stated that if the disclosure form had been at the forefront of his mind at the time he would have prepared it prior to commencing the modification application. He had not made any applications or worked for any other client since 2010 and was not familiar with the Department's website which he had used in the past only to upload additional documents to the original application. He did not anticipate having to answer questions about political donations during the online process and felt under pressure to complete the form in one sitting.

Purposes of sentencing

Section 3A of the Crimes (Sentencing Procedure) Act 1999 (CSP Act) identifies the purposes of sentencing. It states: Part 1 Preliminary 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
When sentencing the Court must apply the instinctive synthesis approach by identifying all the relevant factors, discussing their importance and making a "value judgment as to what is the appropriate sentence given all the factors of the case", Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26] unanimously following Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51] per McHugh J. The sentence must reflect all the relevant objective circumstances of the offence and subjective circumstances of the defendant, see Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 at 490 and Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 472-473, 490-491. The sentence should not exceed what is "justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances", per Veen (No 2) at 472, 485-486, 490-491, 496 and Hoare at 354 per Mason CJ, Deane, Dawson, Toohey and McHugh JJ.
Section 21A of the CSP Act identifies numerous matters which a court must take into account when sentencing including in relation to aggravating (s 21A(2)) and mitigating (s 21A(3)) factors.

Objective seriousness of the offence

Relevant factors to determine the objective gravity of an offence under the EPA Act were identified in Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34 at [163] and Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242 at [110], including the maximum penalty, objective harmfulness of the defendant's actions, reasons for the commission of the offence and state of mind of the offender. The foreseeability of the risk of harm is relevant, as are the practical measures that could have been taken to avoid harm and the defendant's control over the causes of the harm, per Council of the Municipality of Kiama v Pacific Real Estate (Warilla) Pty Ltd [2009] NSWLEC 191 at [67].

Maximum penalty

The maximum penalty at the time of the offence was $22,000 or 12 months custodial sentence, s 96H(2) of the EFED Act (see also s 147(11) of the EPA Act). A maximum penalty is a public expression by Parliament (and, by extension, the general community) of the seriousness of the offence. The gravity of any particular offence should be measured by reference to the range of penalty available. In Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 Kirby P held at 698: 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.

Circumstances of the offence

The SOAF and Mr Perram's written and oral evidence identifies the circumstances of the offence.
The Prosecutor submitted that the fact that the Defendant made an error in relation to its obligations to make disclosures "does not excuse the offence" (Director-General, Department of Planning and Infrastructure v Aston Coal 2 Pty Ltd (2013) 199 LGERA 176; [2013] NSWLEC 188 at [58]) and it cannot be said to have been ignorant of the requirement to comply with s 147 of the EPA Act.
The Prosecutor sought to equate the Defendant with its client Elf Farm emphasising the large capital cost of the original application ($40 million) and the modification application ($15 million). That is irrelevant in the assessment of the objective seriousness of this Defendant's offence given that the Prosecutor accepted that the Defendant obtained no financial benefit from the offence. Further, the Prosecutor submitted that on four occasions donations were made so as to enable Mr and Mrs Tolson to attend events where prominent State politicians would be present. It was submitted that the donations were made to enable the donors to get face-to-face access to prominent and powerful politicians, such that the seriousness of their non-disclosure can be seen to be objectively greater. How such matters can bear on the objective seriousness of the offence of this Defendant is not clear to me. As the Defendant's counsel submitted, and I accept, the Defendant was unaware of the donations made by Mr and Mrs Tolson until these were disclosed at a later date and prior to the modification application approval by the planning assessment commission (PAC) as identified in the SOAF at [20]. A defendant must be sentenced for his, her or its wrongdoing and the Prosecutor's submissions did not accurately reflect the circumstances of this Defendant.
Another relevant circumstance is the operation of the online application system of the Department at the date of the offence. Mr Perram's evidence in this regard was not challenged by the Prosecutor. As deposed to in Mr Perram's affidavit the question aimed at prompting a response about political donations was pre-set by the Department as "no". As someone in Mr Perram's position would experience, the form was able to be submitted in that state if someone inadvertently or mistakenly or without realising they had to consider the matter (as is the case for this Defendant) hit the submit button. Had there been no default outcome at all the form could not presumably be submitted because a relevant field would be incomplete, thereby drawing attention to the question. Alternatively, if the default outcome was "yes" then additional fields would appear according to the Prosecutor's counsel. Once again that would prompt consideration of the question. Given the seriousness of incorrectly completing the political donation disclosure provisions which has resulted in a prosecution in this case I consider that is a poorly designed online electronic application system.
It is also unsatisfactory that persons using this online process cannot print off a version of what they submitted and check it. Exhibit B was a printout of the electronic application by the Department of the information it could extract about the application. That was not a form that Mr Perram was able to extract and print out according to his unchallenged evidence.

State of mind

The state of mind of a defendant, in this case through the guiding mind of its principal and sole employee Mr Perram, when it commits an offence can be a relevant matter going to its objective seriousness. The Prosecutor accepted that the Defendant was not dishonest in committing the offence. It is not disputed that the Defendant had no intention to deliberately lodge a false political declarations statement.
The Prosecutor relied on the following circumstances that the Defendant had, first, previously completed political donations disclosure statements when completing the major project application and, secondly, the modification application form contained a prompt (in the form of a specific question) about reportable political donations. Thirdly, the Defendant's business was such that it ought to have been aware of its obligations and requirement to comply with statutory reporting obligations. The conduct of the Defendant acting through Mr Perram was criminally negligent so as to be an aggravating factor.
The Prosecutor must prove facts relevant to the Defendant's state of mind beyond reasonable doubt, R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27]. Criminal negligence is negligence to a very high degree and must be established beyond reasonable doubt, Callaghan v R (1952) 87 CLR 115; [1952] HCA 55 at 122.
The Defendant submitted that the Prosecutor had not proved beyond reasonable doubt any facts which established that Mr Perram's state of mind could be characterised as negligent in the criminal sense. The Prosecutor has to establish beyond reasonable doubt the state of mind of the Defendant's sole director Mr Perram for those matters she seeks to rely on.
I accept the following submissions of the Defendant's counsel that the Prosecutor has not discharged the onus of proof she bears to establish criminal negligence. Mr Perram is a professional consultant whose work includes making development applications at a rate of about one a year. In relation to awareness of the requirement to disclose political donations, his affidavit and oral evidence is relevant. Mr Perram had not lodged an electronic application with an accompanying political donations declaration statement before as he had not taken on new work since 2008 when he completed the online form, printed it off, had his client sign it and submitted the hardcopy major project application. When he completed the modification application in 2014 he was expecting a facility to review and print the application in order to provide a copy for Mr and Mrs Tolson to verify and sign. In relation to the online prompts, Mr Perram's evidence is that he did not have the prompts in mind and did not recall seeing them or turning his mind to them. He mistakenly failed to observe the question which was preselected "no" on the final screen of the online application screens and proceeded to submit the form. His evidence is that if he had been prompted to do something he would have responded. Mr Perram's actions are correctly described as mistaken.
The Prosecutor has not proved a state of mind of criminal negligence beyond reasonable doubt.

Undermining of legislative purpose

The legislative objective is expressed in s 147(1) of the EPA Act. While not submitting that there was any corruption or undue influence in this particular instance, the Prosecutor submitted that the legislative regime is constructed in such a way that it is intended that the public would have confidence that approvals of development applications are considered in a fashion that is not influenced by donations. The failure to declare such donations strikes at the heart of public confidence in the institutions governing development in New South Wales. The Prosecutor submitted that in this context, the failure to declare the political donations must be viewed as being a serious breach of the reporting regime.
While the Prosecutor's submissions about the importance of the legislative scheme are accepted the Court understands the Prosecutor's submissions to be that any failure to declare political donations is a serious breach. The sentencing for any offence must be determined in light of its objective and subjective circumstances. In this case there was ultimately no failure to disclose political donations before the modification application was approved so that arguably no damage to the legislative intent of the statutory scheme occurred in the overall circumstances of the case.
The Defendant submitted that in the circumstances of this case the objective of minimising perceptions of undue influence by providing the Department with an opportunity to allocate the application to an appropriate decision-maker was alleviated in that the application was determined by the PAC not the Minister or a delegate, a factor recognised in Director-General v Aston Coal 2 at [55].

Deterrence

The Prosecutor submitted that the need to take into account general deterrence has been confirmed in sentencing law including in the setting of deterrent civil penalties, see Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640; [2013] HCA 54 at [65]. It is submitted that while the objects of the EPA Act are general in nature, they still indicate Parliament's intention that applications for development of property should be dealt with by way of transparent and accountable processes. In the context of the failure to declare reportable donations, it is submitted that the objects in s 4A of the EFED Act should also be taken into account. In particular, s 4A(a) ("to establish a fair and transparent election funding, expenditure and disclosure scheme") and s 4A(c) ("to help prevent corruption and undue influence in the government of the State or in local government") are submitted to be of relevance.
Specific deterrence is not warranted given that the Defendant is winding down the business of environmental consulting, the Defendant lodged a modification application earlier this year and the relevant disclosure was made and the Defendant's principal is well and truly aware of his obligations.

Evenhandeness

There have been two convictions for offences arising from contraventions of s 147 of the EPA Act since the introduction of the provision in 2008.
In Director-General v Aston Coal 2 the defendant pleaded guilty to two offences of failing to disclose reportable political donations. After a major project application was lodged by the defendant, two directors and shareholders of the defendant each made a reportable donation of $5,000 and $4,250 respectively. These were not disclosed as required by s 147(6) of the EPA Act. The sentencing judge held that the offences were in the mid-range of objective seriousness and imposed a fine of $10,000 for each offence after discounting for mitigating circumstances including an early guilty plea and totality. The defendant was also ordered to pay the prosecutor's costs.
In Secretary, Department of Planning and Environment v AGL Energy Limited; Secretary, Department of Planning and Environment v AGL Upstream Infrastructure Investments Pty Limited [2017] NSWLEC 2 the defendants pleaded guilty to eleven offences of failing to disclose political donations. Each offence related to a separate development application. A total of 57 undisclosed donations amounting to $73,800 were made over a six-year period. The defendants acknowledged that the offences arose out of a series of systemic failures within their administrative processes. The sentencing judge held that the offences fell into two categories: those in which there was a failure to disclose multiple donations and those in which there was a single failure to disclose. For the former category, penalties of $18,000 were imposed for each of the nine offences reduced to $12,000 for mitigating factors including the early guilty pleas. Penalties of $12,000 were imposed for the remaining two offences reduced to $8,000. The total penalty for the defendants was $186,000 reduced to $124,000. The defendants were also ordered to pay the prosecutor's costs.
The circumstances of those cases are substantially different to the present case where the Defendant was not the donor and was not in a position to reap the theoretical benefits from the making of any donations. The defendants in both cases above are effectively Elf Farm's equivalent in this case. The case against it was discontinued by the Prosecutor.

Subjective factors

The Defendant pleaded guilty, which is to be taken into account pursuant to ss 21(3)(k) and 22 of the CSP Act. R v Thompson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 settled the position that the discretionary discount on the sentence for an early guilty plea would ordinarily be within the range of 10-25%. The Defendant entered the plea at the earliest occasion on the summons' first return date, which demonstrates a degree of utility to the plea.
The Defendant has provided significant co-operation and pre-trial disclosures, in particular: 1. the Defendant has made early admissions against interest; 2. the Defendant has co-operated with the Prosecutor in its investigations; 3. the Defendant has at all times promptly and completely complied with notices issued by the Prosecutor facilitating a reduction in the Court's time and expense; 4. settling an agreed statement of facts that contain many admissions against interest.
The Defendant has no prior convictions.
The Defendant has expressed genuine contrition and remorse for the commission of the offence demonstrated through the immediate rectification and assistance to the Prosecutor.

Application of s 10 of the Crimes (Sentencing Procedure) Act 1999

The Defendant's counsel submitted that the Court should consider making an order under s 10 of the CSP Act which states: 10 Dismissal of charges and conditional discharge of offender (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years, (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. (2) An order referred to in subsection (1) (b) may be made if the court is satisfied: (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to release the person on a good behaviour bond. (2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person. (2B) Subsection (1) (c) is subject to Part 8C. (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. (4) An order under this section has the same effect as a conviction: (a) for the purposes of any law with respect to the revesting or restoring of stolen property, and (b) for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996, and (c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property. (5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence.
In relation to the factors in subs (3), Mr Perram principal of the Defendant is elderly and transitioning to retirement after many decades in the environmental consultancy industry having only one remaining client for which he has acted for many years. The Defendant has no prior convictions.
Mr Perram is clearly aware of the public policy importance of disclosing political donations and gave oral evidence to that effect. Mr Perram impressed the Court as a candid witness who took care in his professional activities including his record keeping. While not a trivial offence, the offence arose from a mistake and no more.
The operation of the Department's online application form having the pre-set answer of "no" to the political donation question is an extenuating circumstance which contributed directly to the commission of the offence by Mr Perram on behalf of the Defendant. If pre-selected as "yes" or blank Mr Perram would have been prompted to take further action. His evidence confirms this. Mr Perram obtained no financial benefit from the offence and rectified the situation when he was able to. He has co-operated fully with the Prosecutor.
I will apply s 10(1)(a) of the CSP Act to this Defendant.

Costs

The Defendant has agreed to pay the Prosecutor's reasonable costs. These have not been quantified.

Orders

The Court makes the following orders: 1. The Defendant is found guilty of the offence identified in the summons dated 19 January 2017. 2. Pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 the charge is dismissed. 3. The Defendant is to pay the Prosecutor's costs as agreed or assessed. 4. The exhibits be 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: 11 December 2017

(2006) 145 LGERA 234

(2013) 199 LGERA 176

(2006) 145 LGERA 189

At a glance

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Judgment (20 paragraphs)

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Legislation Cited (1)

Cases Cited (25)

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