Soukkar v Blacktown City Council

Catchwords

[1999] NSWCA 383 Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234[2006] NSWLEC 34 Byres v Leichhardt Municipal Council [2006] NSWLEC 82 BYT Nominees Pty Ltd v North Sydney Council (2008) 161 LGERA 77[2008] NSWLEC 164 Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349[2004] NSWCCA 167 Cracknell and Lonergan Architects Pty Ltd v Leichhardt Municipal Council (2012) 193 LGERA 151[2012] NSWLEC 194 Denning v Department of Environment and Conservation (2007) 153 LGERA 200[2007] NSWLEC 258 Director-General of the Department of Environment and Climate Change v Rae (2009) 168 LGERA 121[2009] NSWLEC 137 Elias v The Queen (2013) 248 CLR 483[2006] NSWLEC 242 Gore v The Queen (2010) 208 A Crim R 353[2010] NSWCCA 330 Hawkesbury City Council v Johnson (No 2) (2009) 210 LGERA 34[2009] NSWLEC 6 Heatscape Pty Ltd v Mahoney (No 2) (2016) 217 LGERA 332[2016] NSWLEC 45 Hussain v Liverpool City Council [2014] NSWLEC 45 Kari & Ghossayn Pty Limited v Sutherland Shire Council (2006) 150 LGERA 231[2006] NSWLEC 532 Ling Ling Zhu v Auburn Council [2009] NSWLEC 97 Markarian v The Queen (2005) 228 CLR 357[2005] HCA 25 Mcllveen v Baiada (2003) 131 LGERA 129

Judgment (47 paragraphs)

[1]

1; [2006] NSWLEC 532 Ling Ling Zhu v Auburn Council [2009] NSWLEC 97 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Mcllveen v Baiada (2003) 131 LGERA 129; [2003] NSWLEC 174 Miah v Canterbury City Council [2012] NSWLEC 193 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Pittwater Council v Scahill (2009) 165 LGERA 289; [2009] NSWLEC 12 R v Campbell [2014] NSWCCA 102 R v Morabito (1992) 62 A Crim R 82 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v Paris [2001] NSWCCA 83 R v Rahme (1989) 43 A Crim R 81 R v Thomson (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v Wickham [2004] NSWCCA 193 Saffioti v Kiama Municipal Council (2017) 225 LGERA 136; [2017] NSWLEC 65 Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 Sutherland Shire Council v Benedict Industries Pty Ltd (No 8) [2017] NSWLEC 4 Sutherland Shire Council v Turner [2004] NSWLEC 774 Thorneloe v Filipowski (2001) 52 NSWLR 60; [2001] NSWCCA 213 Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Category: Principal judgment Parties: Mr Elias Soukkar (Appellant) Blacktown City Council (Respondent Council) Representation: Counsel: Mr T G Howard SC (Appellant) Mr S E Shneider (Solicitor) (Respondent)

[2]

Solicitors: Direct access - pro bono (Appellant) Houston Dearn O'Connor (Respondent Council) File Number(s): 2017/00137452 Publication restriction: N/A

[3]

Introduction: Mr Soukkar appeals against a sentence imposed by the Local Court for an environmental offence

In 2013, Mr Elias Soukkar ('the Appellant') and his wife, Mrs Maria Soukkar, purchased land in the suburb of Shanes Park comprising Lot 45 in Deposited Plan 32418, known both as 45 Shane Park Road and 26 Stony Creek Road ('the Stony Creek premises'). The Soukkars decided to make Mr Salem Soukkar, their son, the registered proprietor of the Stony Creek premises.
For many years, an extant general store building at the Stony Creek premises was used as part of a general store and takeaway restaurant business. By 2005, that business had ceased to operate. Following a period of "hard luck", the Soukkar family purchased the Stony Creek premises with the intention both to make it their family residence and to resurrect the general store and restaurant business, in the hope that financial stability might thereby be achieved. Since shortly after purchasing the Stony Creek premises in 2013, the Appellant and his wife have been involved in prolonged but constructive discussions with Blacktown City Council ('the Respondent Council') concerning their ambition to resurrect the old general store and restaurant business under the applicable planning regime.
From May 2016 to September 2016, the Appellant - with the assistance of some friends - carried out the following works to the old general store building at the Stony Creek premises: the construction of a new concrete slab; the removal of the existing roof and its replacement with an extended roof covering the concrete slab and existing toilet block; the tiling of the internal floor area; the installation of a wood-fired pizza oven; the 'gyprocking' of the ceilings; and plumbing and electrical works ('the Works'). The Works at the Stony Creek premises were carried out within an area of approximately 362 m2 (Exhibit B). No development consent was sought or obtained prior to carrying out the Works.
On 15 September 2016, the Appellant was issued with a general penalty notice specifying a penalty amount of $3,000 for the offence of "carry[ing] out development forbidden with or without consent" at the Stony Creek premises. This offence was specified as being in relation to "additions/construction to old shop converted to a restaurant, prohibited development". Rather than paying the specified penalty, the Appellant elected to have the matter determined by the Local Court.
On 14 March 2017, the Local Court at Blacktown recorded the Appellant's plea of guilty to the offence of carrying out development in contravention of s 76B of the Environmental Planning and Assessment Act 1979 ('EPA Act'). The Local Court convicted the Appellant of the offence and sentenced him to pay a fine of $40,000. The Appellant represented himself before the Local Court without recourse to legal assistance. The transcript of the Local Court hearing leaves no doubt that the Appellant struggled to adequately represent himself as he evidently had no idea how to prepare for or present his case and he was clearly disadvantaged by English not being his first language.

[4]

The jurisdictional basis of the appeal

In order for the Court to have jurisdiction under the CAR Act to hear and dispose of an appeal as of right against a sentence imposed by the Local Court, the appeal must normally be made within 28 days after sentence is imposed: s 31(2)(a). In order to comply with this requirement, a written Notice of Appeal is to be lodged with the Registrar of the Land and Environment Court that states the general grounds of appeal: s 34. However, it should also be noted that rule 2.5 of the Land and Environment Court Rules 2007 ('LEC Rules') stipulates that: (1) Local Court registrars and such other persons as the Chief Judge may direct are taken to be agents of the Registrar for the purposes of this rule. (2) An agent of the Registrar is to accept documents for filing, and any fees payable in relation to them, as though the agent's office were the registry. (3) As soon as practicable after accepting any documents for filing, an agent of the Registrar is to forward them to the registry together with an account of any fees paid in respect of the documents.
There was no issue between the parties concerning the jurisdictional basis of this appeal. That is to say, the Appellant and Respondent Council agreed that this Court has jurisdiction to hear and dispose of this appeal brought under s 31 of the CAR Act.
However, due to some procedural irregularities in the commencement of this appeal, the Court deemed it prudent to confirm the jurisdictional basis of the appeal with the parties. In this respect, it should be noted that the Appellant was unrepresented until the Appellant accepted the offer of Mr Tom Howard SC, made during a directions hearing before the List Judge, to represent the Appellant pro bono.
To properly contextualise the explanation of this jurisdictional basis, it is necessary to concisely set out the relevant timeline of events leading up to the final hearing of this appeal.
On 7 April 2017, the Appellant lodged a written Notice of Appeal with the Local Court at Blacktown which specified that he was "appealing the above sentence [being the sentence for the offence of "carry[ing] out development forbidden with or without consent"] because the penalty is too severe". The pro forma header to that Notice of Appeal erroneously stated "Notice of Appeal to the District Court". (Presumably the Appellant had been accidentally handed a blank pro forma Notice of Appeal form by registry staff at the Local Court). Concurrently, on 7 April 2017, the appeal was listed for hearing before the District Court on 24 April 2017.

[5]

The relevant statutory frameworks

Given the somewhat unusual circumstances of this case, it is necessary to briefly set out the relevant statutory provisions relating to the following areas of the law: the regulation of development under the EPA Act; the regulation of existing uses under the EPA Act; offences under the EPA Act; the regulation of sentencing; and the determination of an appeal by this Court against a sentence imposed by the Local Court.

[6]

The regulation of development

The EPA Act is the principal statute underpinning the environmental planning regime regulating development in this State. The objects of the EPA Act are set out under s 5 as follows: 5 Objects The objects of this Act are: (a) to encourage: (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment, (ii) the promotion and co-ordination of the orderly and economic use and development of land, (iii) the protection, provision and co-ordination of communication and utility services, (iv) the provision of land for public purposes, (v) the provision and co-ordination of community services and facilities, and (vi) the protection of the environment, including the protection and conservation of native animals and plants, including threatened species and ecological communities, and their habitats, and (vii) ecologically sustainable development, and (viii) the provision and maintenance of affordable housing, and (b) to promote the sharing of the responsibility for environmental planning between the different levels of government in the State, and (c) to provide increased opportunity for public involvement and participation in environmental planning and assessment.
Under s 4 of the EPA Act, development is defined to mean, inter alia, "the carrying out of a work". The EPA Act regulates development by way of a threefold system of classifying development. As was explained by Ipp JA in Chambers v Maclean Shire Council (2003) 57 NSWLR 152; [2003] NSWCA 100 at [33], the three categories of development are delineated under Div 1 of Pt 4 of the EPA Act: The first category is that provided by s 76(1). Section 76(1) concerns specified developments that, by an "environmental planning instrument", may be carried out without the need for development consent. The second category of development is set out in s 76A(1) and concerns a specified development that, by an environmental planning instrument, may not be carried out except with development consent. The third category is set out in s 76B. It concerns developments that, by an environmental planning instrument, are prohibited, or a development that cannot be carried out on land with or without development consent.

[7]

The regulation of existing uses

Division 10 of Part 4 of the EPA Act sets out the provisions governing the continuance of and limitations on existing uses and other lawful uses. The definition of the term "existing use" is set out in s 106, the provisions of which "…are definitional only: they have no operative effect": Cracknell and Lonergan Architects Pty Ltd v Leichhardt Municipal Council (2012) 193 LGERA 151; [2012] NSWLEC 194 at [39] and BYT Nominees Pty Ltd v North Sydney Council (2008) 161 LGERA 77; [2008] NSWLEC 164 at [23]. Existing use is defined under s 106 to mean: … (a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4 of this Part, have the effect of prohibiting that use, and (b) the use of a building, work or land: (i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and (ii) that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse.
Sections 107-109B are the operative existing use provisions of the EPA Act. For these proceedings, ss 107, 109 and 109B are of particular relevance: 107 Continuance of and limitations on existing use (1) Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use. (2) Nothing in subsection (1) authorises: (a) any alteration or extension to or rebuilding of a building or work, or (b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or (c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of an existing use, or (d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 80A (1) (b), or (e) the continuance of the use therein mentioned where that use is abandoned. (3) Without limiting the generality of subsection (2) (e), a use is to be presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months. 109 Continuance of and limitations on other lawful uses (1) Nothing in an environmental planning instrument operates so as to require consent to be obtained under this Act for the continuance of a use of a building, work or land for a lawful purpose for which it was being used immediately before the coming into force of the instrument or so as to prevent the continuance of that use except with consent under this Act being obtained. (2) Nothing in subsection (1) authorises: (a) any alteration or extension to or rebuilding of a building or work, or (b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or (c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of the use therein mentioned, or (d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 80A (1) (b), or (e) the continuance of the use therein mentioned where that use is abandoned. (3) Without limiting the generality of subsection (2) (e), a use is presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months. … 109B Saving of effect of existing consents (1) Nothing in an environmental planning instrument prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force. (2) This section: (a) applies to consents lawfully granted before or after the commencement of this Act, and (b) does not prevent the lapsing, revocation or modification, in accordance with this Act, of a consent, and (c) has effect despite anything to the contrary in section 107 or 109. (3) This section is taken to have commenced on the commencement of this Act.

[8]

Offences against the EPA Act

Section 125(1) is the section of the EPA Act which specifies what is an offence against the EPA Act: 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 maximum penalty that can be imposed for an offence against s 125(1) depends on whether the offence is classified as a Tier 1, Tier 2 of Tier 3 offence (ss 125A-125C). Relevantly, the maximum penalty for a Tier 2 offence is set out under s 125B as follows: 125B Maximum penalties for offences against Act: Tier 2 (1) This section applies to an offence against this Act under section 125 (1), other than an offence to which section 125A applies or an offence for which a tier 3 maximum penalty applies. (2) A person who is guilty of an offence to which this section applies is liable to a tier 2 maximum penalty, being a penalty not exceeding: … (b) in the case of an individual: (i) $500,000, and (ii) for a continuing offence - a further $5,000 for each day the offence continues. (3) However, this section is subject to any provision of this Act that declares a different maximum penalty for a particular offence to which this section applies.

[9]

The regulation of sentencing

The procedure for sentencing an offender for a crime is governed by the Sentencing Act.
The purposes for which a court may impose a sentence on an offender are set out under s 3A of the Sentencing Act: (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.
In addition to having regard to the purposes of sentencing, the Court, in sentencing an offender, is to have regard to, inter alia, the relevant aggravating and mitigating factors specified in s 21A(2) and s 21A(3) respectively. Moreover, the Court is also, under s 22, to take into account any guilty plea.
As will become clear later in this judgment, it is also useful to set out ss 10 and 10A of the Sentencing Act: 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, … (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. … 10A Conviction with no other penalty (1) A court that convicts an offender may dispose of the proceedings without imposing any other penalty. (2) Any such action is taken, for the purposes of the Crimes (Appeal and Review) Act 2001 and the Criminal Appeal Act 1912, to be a sentence passed by the court on the conviction of the offender. Note. The Crimes (Appeal and Review) Act 2001 and the Criminal Appeal Act 1912 provide for appeals against sentence, including (in some circumstances) by the prosecutor.
Finally, it should also be noted that s 6 of the Fines Act 1996 provides that, in fixing the amount of any fine, the Court must consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount.

[10]

The determination of an appeal against a sentence

In determining an appeal made under s 31 of the CAR Act against a sentence, this Court may: (a) set aside the sentence, (b) vary the sentence, or (c) dismiss the appeal: s 39(2).

[11]

The principles of sentencing

In Heatscape Pty Ltd v Mahoney (No 2) (2016) 217 LGERA 332; [2016] NSWLEC 45 at [227]-[233], Pepper J summarised the pertinent sentencing principles. I gratefully adopt her Honour's summary, which was in the following terms: [227] A basic principle of sentencing law is that the sentence imposed for an offence must reflect, and be proportionate to, the objective circumstances of the offence and the personal or subjective circumstances of the offender (Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 at 490 and Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472). [228] The instinctive synthesis method is the correct method of sentencing. The Court identifies all the factors relevant to the sentence and weighs their significance to arrive at an appropriate sentence (Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 at [26] and [29] and Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [35]-[39], [50]-[84] and [136]-[139]). … [231] The prosecutor carries the onus of proving beyond reasonable doubt any aggravating factors for the purpose of sentencing (Gore v The Queen [2010] NSWCCA 330 at [27] and [105] and R v Wickham [2004] NSWCCA 193 at [26]). For mitigating factors, the onus of proof lies upon [the Appellant] on the balance of probabilities (Wickham at [26] and R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27]). [232] In determining an appropriate sentence, the Court considers the objective and subjective circumstances of the offence in the context of the relevant legislative framework (Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 and Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65 at [42]). In this regard the Court has had regard to the objects of the [EPA Act] as set out in s 5 of that Act. [233] The legislative scheme enshrined in the [EPA Act] requires that the integrity of the system of planning is not subverted, irrespective of any actual environmental harm occasioned by a given offence (Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 at [46] and Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [104]-[105]).
With respect to the objective and subjective circumstances of environmental offences, it is established that the Court will often have particular regard to a number of circumstances. As was identified by Preston CJ of LEC in Bentley v BGP Properties Pty Limited (2006) 145 LGERA 234; [2006] NSWLEC 34 at [163], "[a]mongst the objective circumstances that the Court may consider are: (a) the maximum penalty for the offence; (b) the objective seriousness of the offence having regard to its [place] in the statutory scheme; (c) the harm caused to the environment, and particularly the components of the environment harmed in the short and long term by the commission of the offence; (d) the state of mind of the offender in committing the offence; (e) the foreseeability of the risk of harm; (f) the practical measures to avoid foreseeable risk of harm; and (g) the reasons for commission of the offence."

[12]

The Appellant's submissions

The Appellant's senior counsel ultimately submitted that the appropriate course for the Court to take would be to dismiss the charge under s 10 of the Sentencing Act or, alternatively, to make an order under s 10A of the Sentencing Act convicting the Appellant of the offence but not imposing any other penalty. If, however, the Court deemed it appropriate to sentence the Appellant to a fine, it was submitted that only a small fine should be imposed.
In order to properly understand the Appellant's position, it is necessary to concisely outline the Appellant's senior counsel's submissions concerning the objective seriousness of the offence and the relevant subjective circumstances of the offender.

[13]

Objective seriousness of the offence

Prior to considering the conventional objective circumstances of the offence, the Appellant's senior counsel made detailed submissions on a number of interrelated matters which were said to prove the following material circumstances: (1) that, contrary to the offence which the Appellant has been convicted of, the Works carried out were not for a prohibited purpose; and (2) the Appellant and his wife were under a misapprehension for approximately two years that they were not able to use the Stony Creek premises for the purpose of a general store and restaurant unless the Stony Creek premises was re-zoned.
In order to establish these propositions, the Appellant's senior counsel sought to first demonstrate that the use of the Stony Creek premises for the purpose of a general store and restaurant is lawful due to the existence of relevant development consents attaching to the Stony Creek premises.

[14]

The Appellant's case that the use of the Stony Creek premises for the purpose of a general store and restaurant is not prohibited

The Appellant's senior counsel contended that, contrary to the ostensible prohibition of the use of the Stony Creek premises for the purposes of general store and restaurant under the BLEP 2015, the Stony Creek premises can lawfully be used for those purposes pursuant to s 109B of the EPA Act. This was said to be because of the existence of development consents issued in the 1970s that remain in force. To make good this claim, the Appellant's senior counsel made the following submissions.
First, the Appellant's senior counsel submitted that three permits/consents were granted by Blacktown Municipal Council in the 1970s - approving the use of the Stony Creek premises for the purposes of: restaurant/catering establishment; general store and restaurant catering establishment; and general store and a reception lodge and catering establishment - under the Blacktown Planning Scheme Ordinance ('the Ordinance') (which fell under the auspices of the Local Government Act 1919). These consents were issued on 3 June 1975, 23 August 1976 and 6 June 1977 (copies of these consents were admitted into evidence as exhibits to the affidavits of the Appellant dated 15 August 2017 and 25 August 2017).
Secondly, the Appellant's senior counsel submitted that the Ordinance remained in force up until several years after the enactment of the EPA Act and the accompanying cognate legislation, which came into force on 1 September 1980. Relevantly, the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 (which remains in force) operates to save any consent issued under a planning instrument that was in force immediately before 1 September 1980, such that any such consent continues in full force and effect under the EPA Act (subject to exceptions not relevant here): citing cl 7 of Sch 3 and Mcllveen v Baiada (2003) 131 LGERA 129; [2003] NSWLEC 174.
Thirdly, the Appellant's senior counsel asserted that the above mentioned consents under the Ordinance were saved by the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979.
Fourthly, the Appellant's senior counsel contended that, provided the above mentioned consents are "in force" within the meaning of s 109B of the EPA Act, that section has the effect of preserving the effect of these consents to permit development for the purposes of general store and restaurant to be carried out at the Stony Creek premises.

[15]

The Appellant's claim that the offence is based on legal error

As a consequence of the above analysis relating to the operation of s 109B of the EPA Act, the Appellant's senior counsel submitted that the development which the Appellant carried out was not prohibited. Hence, the offence which the Appellant was charged with, pleaded guilty to, and was convicted of - carrying out prohibited development contrary to s 76B of the EPA Act - was said to be based on a legal error. Instead, it was suggested that the legally sound charge would have been the separate (and mutually exclusive: citing Sutherland Shire Council v Benedict Industries Pty Ltd (No 8) [2017] NSWLEC 4 at [15]-[19]) offence of carrying out development without consent when that development was permissible only with consent - contrary to s 76A(1)(a) of the EPA Act.
Nevertheless, the Appellant's senior counsel recognised that the Appellant is barred from appealing the conviction under the CAR Act. In any event, regardless of the technical legal position that the Appellant allegedly did not contravene s 76B of the EPA Act, the Appellant's senior counsel conceded that the Appellant should not have proceeded to carry out the Works without approval and, consequently, the Appellant maintains his plea of guilty.

[16]

The consequences of the allegedly erroneous planning advice

The Appellant's senior counsel submitted that an important factual circumstance for the Court to consider is that the Appellant and his wife received erroneous planning advice from the Respondent Council, between 2013 and 2016, to the effect that: the use of the Stony Creek premises for the purposes of general store and/or restaurant was prohibited under the applicable planning controls; any relevant existing use rights had lapsed; and it would be necessary to submit a planning proposal (preferably prepared by a town planning expert) to re-zone the Stony Creek premises so as to re-open a general store on the land (citing, inter alia, a letter from an officer of the Respondent Council dated 7 August 2015 annexed to the affidavit of the Appellant). Additionally, the Appellant's senior counsel argued that it is insignificant that the relevant advice was not focussed on s 109B of the EPA Act because the conclusion of the advice, that the general store and restaurant was prohibited, was erroneous (Transcript, p 50).
In reliance on this advice (which the Appellant's senior counsel recognised was well-intentioned), it was submitted that the Appellant and his family incurred significant costs in preparing the (unnecessary) planning proposal which it ultimately submitted to the Respondent Council for consideration. Perhaps more importantly, the Appellant and his family were put in a holding pattern for years with respect to re-opening the business at the Stony Creek premises whilst their collective financial state deteriorated. Thus the Appellant's senior counsel submitted that: The Court may properly infer on the evidence that, had the Soukkars been aware in 2014 or 2015 that they had a right under the 1970s Consents to use the Shanes Park Property for the purposes of a general store and restaurant, instead of being wrongly advised that development for such purposes was prohibited under the BLEP 2015 and their "existing use rights" had been extinguished, then the appellant would not have been in the desperate situation he found himself to be in by May 2016, when - still waiting for the Council to take a position on the misconceived draft Planning Proposal - he made the foolish decision to carry out the Building Works without a formal approval.
The Appellant's senior counsel submitted that it was in this context that the Appellant foolishly proceeded to carry out the Works on the basis that a council officer had told his wife that he would only incur a $600 fine for so doing.

[17]

Conventional factors relating to the objective seriousness of the offence

In addition to the unique circumstances set out above, the Appellant's senior counsel also made the following submissions with respect to the conventional objective circumstances of: the maximum penalty for the offence; the objective harmfulness of the offence; the Appellant's state of mind; and the Appellant's reasons for committing the offence.
First, the Appellant's senior counsel submitted that the maximum penalty for the offence is a fine in the sum of $500,000: EPA Act, s 125B. The Appellant's senior counsel acknowledged that this penalty is an expression by Parliament of the seriousness of the offence and one of the factors that must bear on the ultimate determination of the Court: citing Elias v The Queen (2013) 248 CLR 483 at 494-495; [2013] HCA 31.
Secondly, the Appellant's senior counsel submitted that there is no suggestion (let alone evidence) that the offence caused any harm. In fact, the Appellant's senior counsel argued that there is credible evidence that the Appellant's neighbours (and possibly the Respondent Council) would welcome the re-opening of the general store and restaurant at the Stony Creek premises.
Additionally, whilst the Appellant's senior counsel accepted that the offence tends to undermine the EPA Act regulatory regime, it was contended that the Appellant's conduct falls at the low end of such conduct. In this respect, the Appellant's senior counsel emphasised that the Appellant and his wife made significant prolonged efforts to comply with the regulatory regime and relied, to their detriment, upon erroneous advice as to the operation of the regime.
Thirdly, the Appellant's senior counsel submitted that the Appellant's conduct was not consistent with a person intent on flouting the planning regime. The Appellant's senior counsel said that it was significant that the Appellant's "foolish" decision to carry out the works without formal approval was made - in a financially desperate situation and on a mistaken understanding of the Respondent Council's position - only after pursuing "a course of conduct for about two years that was consistent only with an intention to obtain the re-zoning that were told they needed to re-open the business on the land". The Appellant's senior counsel emphasised that, at the time of the offence, the Appellant's state of mind was that (based on a misunderstanding of a phone conversation between Ms Tai and Mrs Soukkar) he thought the Works would be tolerated by the Respondent Council on condition of the payment of a minor fine (Transcript, p 62).

[18]

Subjective circumstances of the offender

The Appellant's senior counsel submitted that the Appellant - as a 47 year old married man with five dependent children - comes before the Court as a proud man struggling to provide for his family and who suffers from (and is being treated for) significant mental health issues.
The Appellant's senior counsel said that the testimonial letters (which were tendered in Court) demonstrate that the Appellant is of good character: an honest and decent man who supports his family, church and local community. For example, Father Maroun Moussa, of St John The Beloved Maronite Catholic Church, stated in his letter that he found the Appellant "to be an honest, caring person and hardworking family man who is always willing to offer help and support to others when needed" (Exhibit D).
Moreover, the Appellant's senior counsel submitted that the Appellant has demonstrated genuine contrition and remorse for carrying out the Works without approval.
Finally, it was said that the Court could be confident that, having regard to all the relevant evidence, the Appellant will not re-offend and has good prospects of rehabilitation.

[19]

Means to pay

The Appellant's senior counsel submitted that the Appellant has very limited means to pay any fine. The Soukkars were said to be in "a precarious financial position, with debts closing in around them, few assets and a minimal capacity to pay any significant fine". In support of this claim, the Appellant's senior counsel relied upon evidence including inter alia: the Appellant and his wife's Centrelink statements; various bank account and credit card statements; a home loan statement; and documents attesting to various outstanding debts. In his own words, Mr Soukkar stated that "I and my family are in a very bad financial situation. We are really struggling to pay the mortgage and other expenses just to live".

[20]

The appropriate outcome of the appeal

As has been foreshadowed, the Appellant's senior counsel ultimately concluded that it would be appropriate for the Court to either dismiss the charge under s 10 of the Sentencing Act or convict the Appellant of the offence but not impose any other penalty under s 10A of the Sentencing Act. If the Court were to impose a fine, it was submitted that the Court should only impose a small fine. Anything other than a small fine would, according to the Appellant's senior counsel, "have a crushing impact on the appellant and his family and would be disproportionate".

[21]

Dismissal of the charge

The Appellant's senior counsel submitted that the established position that this Court does not have power to make an order to dismiss a charge under s 10 of the Sentencing Act on a sentence appeal from the Local Court has been overcome by the insertion of s 3(3A) of the CAR Act. This section was said to expressly empower the Court, on a sentence appeal, to dismiss the charge. I interpose here to set out ss 3(3) and 3(3A): (3) In this Act, a reference to varying a sentence includes: (a) a reference to varying the severity of the sentence, and (b) a reference to setting aside the sentence and imposing some other sentence of a more or less severe nature. (3A) Without limiting subsection (3), a power conferred on an appeal court under this Act to vary a sentence includes the power to make an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 and, for that purpose, to set aside a conviction made by the original Local Court (without setting aside the finding of guilt on which the conviction is based) to enable the order to be made.
Although the Appellant's senior counsel accepted that such an order is not readily given in sentencing offenders for environmental offences, it was said that the extraordinary circumstances of this case warrant the Court making such an order.
In this respect, the Appellant's senior counsel reiterated the following pertinent circumstances: the Appellant did not carry out prohibited development but cannot appeal the conviction; the Appellant received incorrect planning advice from the Respondent Council which he relied upon to his significant detriment; the Appellant, through his interactions with the Respondent Council, was intent on obtaining the necessary approvals until he made a foolish error of judgment in desperate circumstances; the Works did not cause any impacts whatsoever, whereas there is support for the re-opening of the general store and restaurant business; and the Appellant faces very difficult financial circumstances.
In deciding whether to make such an order, the Appellant's senior counsel identified that the Court is to have regard to those factors set out under s 10(3) of the Sentencing Act. To this end, the Appellant's senior counsel submitted that those factors are disjunctive and non-exhaustive: citing R v Paris [2001] NSWCCA 83. In particular, in relation to the factor in s 10(3)(b), the Appellant's senior counsel did not submit that the offence was trivial (Transcript, p 61).

[22]

Conviction without penalty

Alternatively, for the same reasons, the Appellant's senior counsel submitted that the Court should make an order under s 10A of the Sentencing Act convicting the Appellant of the offence but not imposing any other penalty.

[23]

The Respondent Council's submissions

The Respondent Council ultimately submitted that the appropriate sentence to impose on the Appellant is "a fine of some measure".
Prior to making submissions on the conventional factors to be considered in sentencing an offender for an environmental crime, the Respondent Council focused upon the Appellant's senior counsel's submissions regarding the lawfulness of the use of the Stony Creek premises for the purposes of a general store and restaurant.
In essence, the Respondent Council submitted that whether or not the use of the Stony Creek premises for the purposes of general store and restaurant is permissible by dint of s 109B of the EPA Act is only of minor relevance to sentencing the Appellant for the offence.
This was said to be because the carrying out of the Works by the Appellant, even if intended to revive a permissible use, were not authorised by or under an existing consent. Even if the Works were permissible with consent due to the operation of s 109B, no such consent was obtained. In other words, the Appellant was not using the Stony Creek premises in accordance with the historical development consents in carrying out the Works. Moreover, the Respondent Council emphasised that the Appellant's plea of guilty to the offence constitutes proof beyond reasonable doubt as to all of the elements of the offence as charged.
On this basis, the Respondent Council submitted that both the Appellant's senior counsel's submissions as to the permissibility of the use of the Stony Creek premises for the purposes of general store and restaurant and the accuracy and impact of the Respondent Council's planning advice to the Appellant and his wife are matters of minor relevance to sentencing the Appellant for committing an environmental offence. The Respondent Council also emphasised that these proceedings are not Class 4 proceedings in which a declaration concerning the (un)lawfulness of any use of the Stony Creek premises is sought.

[24]

Objective seriousness of the offence

The conventional factors that the Respondent Council focused upon in making its submissions as to the objective seriousness of the offence were: the environmental harm caused by the offence; the Appellant's state of mind in committing the offence; the Appellant's reasons for committing the offence; and the need for general deterrence.
First, the Respondent Council agreed with the Appellant that there is no evidence that the offence caused any environmental harm.
Secondly, the Respondent Council asserted that the Appellant undertook the Works even though he knew that the prior consent of the Respondent Council was required. The Respondent Council also asserted that the Appellant's actions were premeditated rather than impulsive. In the Respondent Council's words, "…at the time the defendant, rightly or wrongly, believed he actually was committing a criminal offence. He acted having had advice, rightly or wrongly, from the Council to the effect that he could not develop this land, and with that advice continued to act" (Transcript, p 59). These circumstances were said to increase the objective seriousness of the offence: citing Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349; [2006] NSWLEC 47 and R v Morabito (1992) 62 A Crim R 82.
Thirdly, the Respondent Council submitted that the Appellant committed the offence for economic reasons and expediency; he "had purchased land and was seeking to profit from the land".
Fourthly, the Respondent Council particularly stressed the importance of the need for general deterrence with respect to environmental offences. The Respondent Council submitted that the courts "have continuously and consistently stressed the need for general deterrence in sentencing for offences against the EPA Act" (citing, inter alia, Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683). Hence, it was said that a nominal fine ought to be avoided: Bentley v BGP Properties Pty Ltd.
More specifically, the Respondent Council posited that the integrity of the planning regime depends upon compliance with the legal requirement to obtain development consent before carrying out development that requires consent. On this point, the Respondent Council repeated the observation of Bignold J in Sutherland Shire Council v Turner [2004] NSWLEC 774 at [24]: [24] A number of cases in this Court have emphasised the fact that the requirement that development consent be granted before work is undertaken is an important linchpin of the control on building and development works imposed by the planning laws, which, if not honoured and obeyed, would result in the whole system of planning control being placed in jeopardy.

[25]

Means to pay

With respect to the means of the Appellant to pay a fine, the Respondent Council submitted that the impecuniosity of the Appellant "should not stifle the Court's, might I say, obligation to impose a fine if a fine is warranted" (Transcript, p 59).

[26]

The appropriate outcome of the appeal

The Respondent Council denied that it would be appropriate for the Court to make an order under s 10 of the Sentencing Act. In deciding whether to make such an order, the Respondent Council also noted that the Court is to have regard to those factors set out under s 10(3) of the Sentencing Act.
With respect to the factor in s 10(3)(b), the Respondent Council submitted that the offence here is not trivial because the Appellant disregarded the planning regime in carrying out the Works.
With respect to the factor in s 10(3)(c), the Respondent Council submitted that there are insufficient extenuating circumstances to justify the making of a s 10 order. In particular, the Respondent Council denied that the planning advice that it gave to the Appellant constituted a materially significant extenuating circumstance. In fact, the Respondent Council said that it is of some significance that the planning advice was never directed at the application of s 109B and that the advice concerned traditional existing use rights.
As has already been stated, the Respondent Council concluded that, having regard to all of the relevant circumstances of the case, the appropriate sentence to impose on the Appellant for the offence is a fine of some measure. However, the Respondent Council accepted that a fine of $40,000 was inappropriate (Transcript, p 60).
Alternatively, the Respondent Council submitted that the Court should make an order under s 10A of the Sentencing Act (Transcript, p 59).

[27]

Nature of the offence

As Preston CJ of LEC stated in Chief Executive of the Office of Environment and Heritage v Grant Wesley Turnbull [2017] NSWLEC 141 at [17]: The objective seriousness of an environmental offence is illuminated by the nature of the statutory provision, contravention of which constitutes the offence and its place in the statutory scheme. A proper understanding of the purpose of creating an offence is assisted by consideration of the objects of the statute. A fundamental consideration with particular relevance to environmental offences is the degree by which, having regard to the maximum penalties, the offender's conduct would offend against the legislative objective expressed in the statutory offence: Director-General of the Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 at [15] and the cases cited.
Relevantly, the objects of the EPA Act (see above) include the objects to encourage both the proper management and development of urban environments so as to promote the social and economic welfare of the community (s 5(a)(i)) and the promotion and co-ordination of the orderly and economic development of land (s 5(a)(ii)).
One of the principal means by which these objectives are achieved is by the EPA Act providing a regulatory framework governing whether development for a particular purpose in various land use zones is permissible without consent, permissible with consent or prohibited. If a particular purpose of development is permissible without consent, the implication is that a policy decision has been made that that development can be carried out without the need for prior assessment by a consent authority. If a particular purpose of development is permissible with consent, the implication is that a policy decision has been made that that development should only be carried out if a consent authority has assessed the proposal and is satisfied that the development is acceptable. Finally, if a particular purpose of development is prohibited, the implication is that a policy decision has been made that that development is unacceptable and will not be permitted.
In order for the EPA Act regulatory framework to effectively achieve its objectives, it is critical (in most circumstances) that a person proposing to undertake a development takes the first step of ascertaining whether the development is permissible without consent, permissible with consent or prohibited under the relevant planning control. This may not be a straightforward inquiry and may require expert assistance. In this case, the complexity of the planning history of the Stony Creek premises (including the history of development consents and their status under successive planning controls) was such that, for the Appellant, the requisite inquiries would certainly not have been straightforward. As the history of the case shows, the complexity led the Respondent Council, with its internal resource of professional town planners, to erroneous conclusions.

[28]

Maximum penalty

As Preston CJ of LEC stated in Chief Executive of the Office of Environment and Heritage v Grant Wesley Turnbull at [24]: The maximum penalty for the offence is relevant in determining the objective gravity of the offence. The maximum penalty for an offence is a public expression by Parliament of the seriousness of the offence: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698. It also provides a sentencing yardstick for the offence before the Court: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [31]. A yardstick is an instrument of measurement. The maximum penalty for an offence is used to measure the relevant features of a particular instance of an offence against the worst case: R v Campbell [2014] NSWCCA 102 at [28].
It was uncontroversial that the maximum penalty for the offence against s 125(1) of the EPA Act at the material time was $500,000: s 125B. Hence this figure of $500,000 is a public expression by Parliament of the seriousness of the offence and provides a yardstick for determining the appropriate sentence for the offence that was charged.

[29]

Environmental harm

The Appellant and Respondent Council agreed that there is no evidence that the offence caused any environmental harm. That agreement with respect to the offence as charged is equally apposite to the offence most probably committed. I agree that it has not been established that the carrying out of the Works caused any environmental harm. This is a very material consideration in considering any sentence and determining the most just outcome in the peculiar circumstances of this case. Beyond the absence of harm, providing consent is obtained for the Works, the view had been expressed both before and during the hearing by the Respondent Council that the use of the Stony Creek premises as intended by the Appellant might in fact be beneficial for the neighbourhood. However, as this is not a Class 1 application, I have not allowed those observations to influence my judgment.

[30]

State of mind

The state of mind of the Appellant at the time of the alleged offence can increase the objective seriousness of the offence. The evidence is that the Appellant was aware of the Respondent Council's position (albeit mistaken) that approval for the prohibited general store and restaurant development could not be granted unless Stony Creek was re-zoned. Despite this, as the Respondent Council submitted, the Appellant decided to develop his land for the general store and restaurant purpose. He decided to risk it, to "take a punt" that a small fine of $600 might be incurred. If that was his state of mind for the offence alleged by the Respondent Council, it is clearly equally apposite to the offence that was most probably committed.
As identified above, Mr Shneider for the Respondent Council submitted as follows: However, at the time the defendant, rightly or wrongly, believed he actually was committing a criminal offence. He acted having had advice, rightly or wrongly, from the Council to the effect that you could not develop this land, and with that advice he continued to act. … However, at the relevant time the criminal conduct, if I can put it that way, is amplified because this appellant … thought he was doing the wrong thing and continued to do the wrong thing despite being told by the Council you cannot do this. You cannot develop on this land. (Transcript, p 59, lines 12-17 and 21-26).
Whether or not the Appellant proceeded with the Works based on an indirect and uncertain understanding of a phone conversation to the effect that the only penalty for carrying out the Works without approval would be a minor fine (which is unclear), the fact remains that the Appellant decided to risk it by carrying out the Works with the imperfect knowledge that this conduct was most probably going to be in breach of the planning controls. Hence, if the allegation of the offence with which he was charged was correct then the Appellant's state of mind would increase the objective seriousness of the offence. Nevertheless, I accept that the Appellant's conduct is not consistent with a person who was intent on flouting the planning regime, but rather was conduct arising from regrettable circumstances.

[31]

Reasons for committing the offence

The Appellant's reasons for committing the offence were, as put by the Respondent Council, economic in that he was seeking to carry out the Works at the Stony Creek premises to, eventually, establish a successful business. Although I accept that the broader reason for seeking to establish a successful family business was, inter alia, to restore the Soukkar family to a financially sound position (after the family successively suffered serious setbacks), it remains true that the offence for which the Appellant was fined was committed for, albeit indirectly, financial gain. Without further explanation, such a motivation does increase the objective seriousness of an offence.
Nevertheless, this is not a case where the Appellant has reasoned that he will directly obtain some financial gain or advantage by committing an offence. For example, the present circumstances can be contrasted with an offender who decides to unlawfully use existing buildings as a boarding house in exchange for money. In the Appellant's case, reversing misfortune by seeking to secure financial sustainability might be a better description.

[32]

Other considerations

As set out above, senior counsel for the Appellant submitted that the Court should have regard to two interrelated, unique material circumstances in considering and determining the objective seriousness of the offence: (1) that, contrary to the offence to which the Appellant has been convicted, the purpose for which the Appellant carried out the Works was not for a prohibited purpose; and (2) the Appellant and his wife were under a misapprehension for approximately two years that they were not able to use the Stony Creek premises for the purpose of a general store and restaurant unless the Stony Creek premises was re-zoned. In the context of the Respondent Council maintaining that the Appellant's preferred use of the Stony Creek premises was prohibited, to arrive at an alternative and correct understanding of the situation was quite beyond the ordinary citizen, requiring a detailed knowledge of complex planning law and investigative skills to review planning history. In this case, I have concluded that the Respondent Council's own planning investigations have been found wanting, particularly in circumstances where those investigations were preliminary to a prosecution where the greatest rigour is required in order to avoid the current occurrence of an injustice.
In response to the two propositions above, the Respondent Council submitted that even if correct, these two circumstances are only of minor relevance because the Appellant pleaded guilty to the offence (and maintains that plea) and in any event would have still required development consent to carry out the Works if the development was permissible with consent rather than prohibited. The Court surmises that had the Appellant been properly advised initially of his true legal rights with respect to the Stony Creek premises, or even been legally represented before the Local Court, he most probably would never have pleaded guilty. More importantly, properly informed, the Appellant would most probably have pursued an alternative course: the Appellant would have lodged a development application, rather than pursuing the far more challenging attempt to secure a re-zoning.
With respect to the Appellant's second proposition set out above, I accept that such a circumstance materially affects, to a degree, the objective seriousness of the offence, if that offence had been correctly established in the first place. The Appellant intentionally took a risk in the face of a potential offence of which he was aware. So that was the Appellant's relevant "state of mind" had the offence been correctly identified.

[33]

Conclusion on the objective seriousness of the offence

Having regard to the nature of the offence in the circumstances of this case, the maximum penalty, the absence of environmental harm and the offender's state of mind and reasons for committing the offence, the Appellant's conduct was of low objective seriousness. I have formed this view in relation to the charged breach of s 76B. I would also form that view had the charge been a breach of s 76A.

[34]

Prior criminality

Aside from minor traffic offences, the Appellant does not have any prior convictions, including convictions for environmental and planning offences.

[35]

Offender's character

On the evidence, I am satisfied that the Appellant is of good character. His testimonial letters confirm that the Appellant is honest, diligent and actively supportive of his family, friends and local community. Moreover, I note that the Appellant has maintained his good character despite clearly difficult and stressful circumstances.

[36]

Likelihood of re-offending

I am satisfied that, having regard to all of the evidence and circumstances of this case, the Appellant is unlikely to re-offend.

[37]

Plea of guilty

The Appellant entered into an early plea of guilty and is therefore, for the utilitarian value of his plea, entitled to the full discount of 25% were the Court to decide that a penalty was appropriate: R v Thomson (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [160]. In making that finding, I note both that the Appellant did not significantly contest the facts that form the basis for the sentence and that no submission was made by the Respondent Council that the Appellant was not entitled to the full discount.

[38]

Contrition and remorse

The Appellant clearly expressed genuine contrition and remorse for carrying out the Works contrary to law. The Appellant's contrition was not late in coming: it was apparent as soon as he understood his alleged wrongdoing; it was very apparent from the transcript of the hearing before the Local Court; and it was clearly evident in the two affidavits sworn by the Appellant for the appeal and throughout the hearing.

[39]

Purposes of sentencing

As the Respondent Council submitted, the need for general deterrence with respect to offences against the EPA Act has often been stressed by this Court. This is partly because, as outlined above, the integrity and efficacy of the planning regime depends upon compliance with the requirements that a proponent of development does not carry out development if the development is prohibited or, if permissible with consent, that a proponent obtains the requisite consent before carrying out that development: Sutherland Shire Council v Turner.
Considered in isolation, the logic behind particular planning requirements and controls may sometimes be elusive. For example, it is not unusual for a person to be surprised that they require development consent to use land in a way that seems to be relatively benign and non-intrusive. There is, however, normally a coherent explanation for such controls. For instance, it may be that a particular use of land is non-problematic if rare but causes considerable cumulative impacts if frequent. Hence, it is important that people are deterred from committing offences such as carrying out minor building works that are for a prohibited purpose or without the requisite consent.
Accordingly, I agree with the Respondent Council that this is a case where the principles regarding general deterrence are relevant. In acknowledging the need to reinforce the importance of upholding planning law, nothing in this judgment, including the final orders, should be taken as an indication that the integrity and efficacy of the planning regime should not be rigorously sustained. However, as I set out below, the desirability of reinforcing the importance of deterrence must not be allowed to render impotent the discretion afforded by s 10 of the Sentencing Act.

[40]

Consistency in sentencing

Neither the Appellant nor the Prosecutor before the Local Court made submissions with respect to sentences imposed in comparable cases. The Respondent Council initially sought to impose a $3,000 penalty, yet the magistrate saw fit to impose a $40,000 fine, the rationale for which was not readily apparent from the transcript. The Court has had regard to the sentences imposed in other sentencing decisions concerning offences committed against the EPA Act by carrying out building works unlawfully.
In so doing, the Court has not simply considered the sentences imposed but has also considered the objective and subjective circumstances of the offences and the offenders involved in those decisions to ensure consistency in the application of the relevant legal principles when sentencing the Appellant. The cases that the Court has had regard to include Ling Ling Zhu v Auburn Council [2009] NSWLEC 97; Byres v Leichhardt Municipal Council [2006] NSWLEC 82; Franks v Woollahra Municipal Council [2007] NSWLEC 461; and Miah v Canterbury City Council [2012] NSWLEC 193. I should note, however, that these cases involved offences founded on a contravention of s 76A rather than s 76B. Having reviewed the sentencing in those cases, I have formed the view that the circumstances in this case before me were exceptional, without a ready comparator.

[41]

Means to pay

Although only material if the Court was to determine that a fine is an appropriate sentence, I accept that the uncontested evidence before the Court demonstrates that that the Appellant has very limited means to pay a fine. It is established that, under s 6 of the Fines Act 1996, "[i]f the Court is satisfied that the offender would be unable to pay the amount of fine determined by the Court to be appropriate, the Court may reduce the amount of fine to take account of the offender's means: R v Rahme (1989) 43 A Crim R 81": Chief Executive of the Office of Environment and Heritage v Grant Wesley Turnbull at [191].
In this case, I am satisfied on the evidence that the Appellant's financial circumstances are perilous. The Appellant (and his wife) are dependent on Centrelink Benefits and rely on their adult children to supplement their household expenses. The Appellant (or the corporation he controls) owes significant sums of money to the Australian Taxation Office, American Express, the Catholic Education Office, Sydney Water, and the Respondent. Significantly, with respect to the outstanding debts to the Australian Taxation Office, the debts have been recorded as "Non-pursuit - uneconomical to pursue" and collection action has been put on hold. The Appellant has a balance of less than $600 in his personal bank account and has limited assets. I accept the Appellant's claim that "I and my family are in a very bad financial situation. We are really struggling to pay the mortgage and other expenses just to live".

[42]

Determination of the appeal

Subject to the technical qualification explained below, the Court is satisfied that the Appellant was never guilty of the offence for which he was charged (being the carrying out of development in contravention of s 76B of the EPA Act, a section which proscribes the carrying out of works for a prohibited purpose), despite the Appellant entering and maintaining a plea of guilty. However, on the prima facie basis of the evidence and submissions before the Court, the Appellant most probably was vulnerable to a charge that he committed a different offence (being the carrying out of development in contravention of s 76A of the EPA Act, a section which proscribes the carrying out of works for which consent was required without consent). That different potential offence was not the subject of the original penalty notice, nor was it the offence before the Local Court. In short, the Court is satisfied that existing use rights apply to the Stony Creek premises for the purposes for which he carried out the Works. He simply required consent for the building works he carried out.
As the Appellant was, in effect, inadvertently convicted for an offence which the Court is satisfied he never committed, it would be wrong, indeed manifestly unjust, for any fine to be imposed with respect to that offence. Instead, pursuant to s 39(2)(b) of the CAR Act, I propose to vary the sentence, utilising the power confirmed by s 3(3A) of the CAR Act, to direct under s 10(1)(a) of the Sentencing Act that the charge in relation to s 76B of the EPA Act (which is the only charge) be dismissed.
However, despite having reached the conclusion that the Appellant, on the evidence before me, was never guilty of the offence for which he was charged, the legislative scheme requires, in effect, the original finding of guilt to be sustained before I can determine the appeal appropriately. The interplay between the CAR Act (s 3(3A)) and the Sentencing Act (s 10) is such that whilst allowing me to set aside the conviction of the Local Court I may not set aside the finding of guilt upon which the Local Court's conviction was based, rather I am to formally find the Appellant guilty before being able to proceed with an order to direct that the charge in relation to s 76B of the EPA Act be dismissed.
Although the Court need not so observe, with respect to the potential offence against s 76A of the EPA Act which the Appellant may have committed, but with respect to which he was never charged, the Court is sanguine with the implications of the final outcome of this appeal, with no imposition of a penalty. I make that observation as the s 10(3) considerations relevant to the exercise of discretion pursuant to s 10(1) of the Sentencing Act with respect to the charged s 76B offence would be just as apposite had proceedings been commenced with respect to the more probable s 76A based offence. I stress that this is an exceptional case, cloaked in unfortunate circumstances.

[43]

Appropriate outcome

It is necessary that I explain why I consider that an order under s 10(1) of the Sentencing Act is appropriate. First, I agree with the arguments advanced by senior counsel for the Appellant supporting the conclusion that the extraordinary circumstances in this case warrant the Court making such an order.
Secondly, in deciding to make an order under s 10(1) of the Sentencing Act, I am required by s 10(3) to have regard to: (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; and (d) any other matter that the Court thinks proper to consider. The Court has had regard to the Court of Appeal decision in R v Paris (as relevantly confirmed in Chin v Ryde City Council (2004) 133 LGERA 312; [2004] NSWCCA 167 at [38]) in which (at [42]) Simpson J stated that s 10(3) "requires the court to have regard to the four factors listed. This is not intended to preclude the court having regard to any other relevant factors but it does require express regard to those matters identified". However, in considering factor (b), his Honour held: "On no view of it [the offence being considered by the Court of Appeal] could it have been regarded as trivial. It is not necessary to the application of s 10 that the offence be characterised as trivial: the four factors mentioned in subs 3 are, in my view, intended to be disjunctive and non-exhaustive". I note that Pain J followed this interpretation of s 10 in Hawkesbury City Council v Johnson (No 2) (2009) 210 LGERA 34; [2009] NSWLEC 6 at [97].
In considering the factors in s 10(3) to which regard must be had, it is instructive to have regard to what the Court of Appeal said in Thorneloe v Filipowski (2001) 52 NSWLR 60; [2001] NSWCCA 213: 151 The discretion conferred by s 10 is wide-ranging. There is no warrant for treating the scope and range of matters which it is "proper" for a sentencing judge to take into account in a narrow way. Nevertheless, it is a discretion which must be exercised judicially. The identification of relevant considerations turns on the scope and purpose of s 10. … 198 In empowering a court to either dismiss a charge or discharge on a good behaviour bond an offender who is guilty, s 10 permits the adoption of a more lenient approach than merited by the strict application of the relevant law against which a defendant has offended. However it is clear that it is not only mitigating circumstances to which regard may be had. Thus while the matters referred to in s 10(3)(b) and s 10(3)(c) are of that nature, those in s 10(3)(a) are not necessarily so. 199 The express reference in s 10(3)(c) to only those circumstances which are "extenuating" provides some ground for the view that "any other matter" in s 10(3)(d) should not be regarded as extending to circumstances which are of an aggravating kind. On the other hand any judgment of whether the circumstances in which an offence is committed are extenuating of necessity requires attention to all such circumstances including those which, in isolation, might be regarded as of an aggravating nature. It would be unreal to suggest that such matters could be taken into account in determining whether an offence is committed in extenuating circumstances but for no wider purpose and thus it seems to me that "any other matter" in s 10(3)(d) includes all the circumstances of an offence.

[44]

Lessons to be learnt from this appeal

First, there can be no substitute for thorough research into the planning history of land when issues relating to existing use rights might be material to whether an offence has or has not been committed. The planning system in this State is extremely complex, as indeed it is in many other Australian jurisdictions, and it ought not be presumed that an ordinary citizen has the competency or the financial capacity to always carry out the requisite historical research adequately. Councils will invariably have more ready (and perhaps exclusive) access to relevant planning related documentation, being the repository of documents that can reveal the planning history of a given site. Accordingly, councils bear the responsibility to carefully consider the relevant planning history and controls prior to the service of a penalty notice, let alone any subsequent prosecution.
Secondly, in the hurly burley pressure of the Local Court environment, it is essential to the realisation of justice and the rule of law that self-represented defendants (especially a defendant whose first language is not English), be given every assistance, preferably relevant legal advice, before appearing in Court. The transcript of the hearing before the Local Court records the Appellant's wife plaintively asking at the end of the hearing: "Your Honour, please, can we just get legal advice". The Appellant's plea of guilty in the face of a charge in relation to an offence he did not commit is understandable in the circumstances of this case, as it revealed a clear and early willingness on the part of the Appellant, with obvious contrition, to cooperate and seek leniency. The sorry saga that followed the Appellant declining to pay a $3000 penalty due to impecuniosity is regrettable and hopefully rare.

[45]

Further observations

The Court should note that the Respondent Council has adopted a responsible and empathetic approach to the Appellant's plight. It is evident that this approach included an effort, with the best of intentions, to find a pathway to enable the Appellant to resurrect a desired general store and takeaway food enterprise desired by the local community. Sadly, as outlined above, the pathway identified was erroneous and, when pursued, only contributed to the Appellant's difficulties.
On the unchallenged evidence before the Court, the Appellant could ill afford the associated costs, nor cope with the extra delay. Most probably this unnecessary, additional delay, costs, and stress would not have occurred had the correct and available development consent pathway been followed. Moreover, before the Local Court, it was not the Respondent Council that pressed for a fine $37,000 greater than their penalty notice, indeed that outcome most probably took the Respondent Council by surprise. In answer to this Court's question "You're obviously not saying that the $40,000 that the magistrate saw appropriate was anywhere near appropriate", Mr Shneider for the Respondent Council replied "No, absolutely not". With the Court suggesting that a "fairly gentle approach" might be the Respondent Council's bottom line, Mr Shneider submitted that a pecuniary penalty of "some measure" would be appropriate, whilst confirming that "it's probably not appropriate for the prosecutor to specify a quantum of fine" (Transcript, p 60, lines 9-35). This is, however, not to ignore that Mr Schneider maintained that a s 10 order would be inappropriate.
Finally, given the circumstances of this case, it is appropriate that the Court makes special mention of the laudable conduct of the Appellant's senior counsel, Mr Tom Howard SC, in acting for the Appellant on a pro bono basis. In a case involving considerable complexity, the Court is of the view that Mr Howard's advocacy facilitated a proper and fair examination of the issues and, ultimately, enabled a just outcome to prevail.

[46]

Orders

The Court orders that: 1. The appeal against the severity of the sentence imposed by the Local Court on 14 March 2017 is allowed; and 2. Pursuant to s 39(2)(b) of the Crimes (Appeal and Review) Act 2001, the Court: 1. Determines the appeal against sentence by varying the sentence imposed by the Local Court on 14 March 2017; 2. Orders, under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999, that the charge against the Appellant be dismissed; and, 3. Sets aside, for that purpose, the conviction made by the Local Court on 14 March 2017 (without setting aside the finding of guilt upon which that conviction was based).

[47]

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: 01 December 2017

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (47 paragraphs)

Parties

Cases Cited (67)

Cited By (1)