Byers v Leichhardt Municipal Council

Case •

[2006] NSWLEC 82

•

02/13/2006

No judgment structure available for this case.

Land and Environment Court


of New South Wales


CITATION: Byres v Leichhardt Municipal Council [2006] NSWLEC 82
PARTIES:

APPELLANT
David Mark Martin Byres

RESPONDENT
Leichhardt Municipal Council
FILE NUMBER(S): 60012 of 2005
CORAM: Preston CJ
KEY ISSUES:

Appeal :- - appeal against severity of sentence of Local Court - appeal by way of rehearing - sentence given by Local Court consistent with pattern of sentences for offence - sentence within range appropriate to gravity of offence and to the subjective circumstances of offender - appeal dismissed

Environmental offences: - carrying out development without development consent - excavating and building basement under house - guilty plea - appropriate sentence - offender's actions objectively serious - extensive excavations threatening structural integrity and stability of house - work by offender done without building or engineering expertise - work done without regard to health and safety of occupants or amenity of neighbours - offence foreseen
negligent and the consequence of conduct that was intended by offender - work done to benefit offender by creating basement - need for general deterrence - guilty plea and lack of prior convictions main mitigating circumstances - absence of contrition and remorse - need for specific deterrence - financial means of offender
LEGISLATION CITED: Crimes (Local Court Appeal and Review) Act 2001 (NSW) s 31(1), s 32(1), s 31(2)(a), s 37(1), s 37 (2)
Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A, s 17, s 21(a)(3)(e), s 21A(3)(f), s 22, s 22(1)(b), s 23(1)
Criminal Appeal Act 1912 s 5AA
Environmental Planning and Assessment Act 1979 (NSW) s 76(1)(a), s 76A(1), s 76A(1)(a), s 125(1), s 126(1), s 127(3)
Fines Act 1996 (NSW) s 6
Local Government Act 1993 (NSW) s 124
CASES CITED: Axer Pty Limited v Environment Protection Authority (1993) 113 LGRA 357;
Byron Shire Council v Fletcher [2005] NSWLEC 706 (25 November 2005);
Carlino v Leichhardt Municipal Council [2005] NSWLEC 198 (27 April 2005);
Cameron v Eurobodalla Shire Council [2006] NSWLEC 47 (13 February 2006);
Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1992) 32 NSWLR 683;
City of Sydney Council v Gravity Corporation Pty Limited [2001] NSWLEC 219 (20 September 2001);
City of Sydney Council v Schwartz [2003] NSWLEC 201 (28 July 2003);
City of Sydney Council v Schwartz [2003] NSWLEC 261 (11 September 2003);
Cliftleigh Haulage Pty Limited v Byron Shire Council [2005] NSWLEC 692 (1 December 2005);
Cooper v Coffs Harbour Council (1997) 97 LGERA 125;
Environment Protection Authority v Ampol Ltd (1995) NSWLEC 16 (22 February 1995);
Environment Protection Authority v Australia Waste Recyclers 1 Pty Limited [2005] NSWLEC 739 (22 December 2005);
Fairfield City Council v Cavasinni Constructions Pty Limited [2005] NSWLEC 187 (22 April 2005);
Keir v Sutherland Shire Council [2004] NSWLEC 754 (7 December 2004);
Ku-ring-gai Municipal Council v Kizana [2002] NSWLEC 187 (29 July 2002);
Mosman Municipal Council v Menai Excavations Pty Limited (2002) 122 LGERA 89;
Mosman Municipal Council v Waratah Village Partners Pty Limited [2003] NSWLEC 101 (28 March 2003);
Neal v R (1982) 149 CLR 305;
Pittwater Council v Walters [2004] NSWLEC 75 (3 February 2004);
R v Doan (2000) 50 NSWLR 115;
R v Karacic (2001) 121 A Crim R;
R v MacDonnell (2002) 128 A Crim R 44;
R v Power [1999] NSWCCA 25 (5 March 1999);
R v Rushby [1977] 1 NSWLR 594;
R v Thomson; R v Houlton (2000) 49 NSWLR 383;
Warringah Shire Council v Sahade [2004] NSWLEC 333 (27 May 2004);
Waverley Council v Boris Meck [2005] NSWLEC 655 (20 September 2005);
Woollahra Municipal Council v Byrnes and Consolidated Byrnes Holdings Pty Ltd [2002] NSWLEC 125 (15 April 2002)
DATES OF HEARING: 13/02/2006
EX TEMPORE JUDGMENT DATE: 02/13/2006
LEGAL REPRESENTATIVES: APPELLANT
D M M Byers
Appellant appeared in person

RESPONDENT
T G Howard (barrister)
SOLICITORS
Ritchie & Castellan


JUDGMENT:

        THE LAND AND
        ENVIRONMENT COURT
        OF NEW SOUTH WALES

        PRESTON CJ

        13 FEBRUARY 2006

        60012 of 2005

        BYRES V LEICHHARDT MUNICIPAL COUNCIL

        JUDGMENT

1 HIS HONOUR: The appellant, Mr David Byres, appeals against the severity of the sentence imposed by Magistrate B J Kennedy in proceedings prosecuted by Leichhardt Municipal Council (“the Council”) in the Balmain Local Court for a contravention of the Environmental Planning and Assessment Act 1979 (NSW) (“the EPA Act”).

2 In those proceedings, the appellant pleaded guilty to an offence against s 125(1) of the EPA Act, that he carried out development without development consent in contravention of s 76A(1) of the EPA Act. The development involved excavation and alteration to the subfloor area of a dwelling house at 5 Rayner Street, Lilyfield. The date of the offence was between 18 and 23 June 2004 inclusive.

3 On 9 September 2005, the Local Court convicted the appellant as charged and sentenced him to pay a fine of $12,000 and court costs of $65, and ordered him to pay the prosecutor’s costs of $3,300.


4 Section 76A(1)(a) of the EPA Act provides:

            “If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:
            (a) such a consent has been obtained and is in force, and
            (b) the development is carried out in accordance with the consent and the instrument.”

5 The relevant environmental planning instrument is Leichhardt Local Environmental Plan 2000 (“LLEP 2000”). The land is within the residential zone under LLEP 2000. In that zone, development for the purpose of dwellings is permissible but only with consent.

6 The carrying out of development for the purpose of dwellings without first obtaining development consent constitutes a contravention of LLEP 2000. A contravention of LLEP 2000 is a contravention of s 76A(1)(a) of the EPA Act. A contravention of s 76A(1)(a) involves an offence against the EPA Act. Section 125(1) provides:

            “Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, of where the Minister, the Director-General, 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.”


Appeal against the sentence

7 The appellant’s application class 6, being the process by which the appeal to this Court was instituted, referred to the appeal being against “conviction of the severity of the sentence”. These words are ambiguous as to whether the appeal was an appeal against conviction, an appeal against the severity of a sentence, or an appeal against both conviction and severity of sentence.

8 The Council by notice of motion sought to strike out the appeal. That motion came before Lloyd J of this Court on 27 January 2006. The appellant was invited to clarify the nature of the appeal. The appellant, who appeared in person on that occasion as he did on the hearing before me, indicated that he wished to appeal against the conviction and the sentence. The Council referred Lloyd J to s 32(1) of the Crimes (Local Courts Appeal and Review) Act 2001 (NSW) (“the Review Act”) and, noting that the appellant had neither made any application for leave nor purported to identify any error of law, submitted that the Court had no jurisdiction to hear an appeal against conviction.

9 Lloyd J invited the appellant to identify any error of law on the part of the magistrate. The appellant, however, merely alleged that his solicitor had persuaded him to plead guilty against his own better judgment. The appellant was unable to identify any error of law.

10 Lloyd J held that in the circumstances of this case the Land and Environment Court had no jurisdiction to hear an appeal by the appellant against conviction and directed that the appeal proceed but only as an appeal against the severity of the sentence.

11 On the matter coming before me today for hearing, the appellant confirmed that he was proceeding on the basis that the appeal was only against the severity of the sentence.

12 An appeal against the severity of sentence is made to this Court as of right under s 31(1) of the Review Act. The appeal was lodged on 7 October 2005, on or about the last day of the twenty-eight day period after the sentence was imposed by the Local Court and in which an appeal is required to be lodged by s 31(2)(a) of the Review Act.

13 The appeal is to be dealt with by way of rehearing on the basis of certified transcripts of evidence given in the original Local Court: s 37(1) of the Review Act. Fresh evidence may be given, but only by leave of this Court if the Court is satisfied that it is in the interest of justice that fresh evidence be given: s 37(2) of the Review Act.

Appeal is by way of rehearing

14 The nature of the rehearing required by s 37(1) of the Review Act is akin to the type of appeal contained in s 5AA of the Criminal Appeal Act 1912 prior to the amendment of s 5AA in 2000. That appeal was described by the Court of Criminal Appeal in Cooper v Coffs Harbour Council (1997) 97 LGERA 125 at 127-128 as follows:

            “…an appeal under s 5AA is not restricted to a determination of whether the decision of the Court below was infected with error. It is a rehearing on the evidence given before the trial Court.
            The width of the Court’s jurisdiction when determining an appeal under this section is evidenced by s 5AA(4) which permits the Court to vacate the determination made by the trial court and to make any determination that the trial court could have made on the evidence heard on appeal. The Court is not concerned, as it would be in an ordinary appeal under s 5 of the Criminal Appeal Act , with whether the original determination was unsafe and unsatisfactory but whether the Court is independently of the same view as the trial court that the offence has been made out. The nature of the jurisdiction of this Court on an appeal under s 5AB was considered in Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority. It was held that an appeal under s 5AA was not a de novo rehearing but the Court was to consider the evidence before the trial court, together with any additional or substituted evidence admitted on the appeal, and resolve for itself afresh the ultimate issue for determination.
            Shortly after the decision in Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority was delivered, s 5AA was amended by substituting a recasting of subs 3 and the insertion of subs 3A. These amendments, however, did no more than confirm the correctness of that decision. Subsections 3 and 3A of s 5AA now make it clear that an appeal under the section is to be determined on the evidence before the trial court unless leave is given by this Court for fresh, additional or substituted evidence to be adduced.
            Although this Court is concerned primarily to redetermine the charge on the evidence before the trial court, it does not follow that the hearing of the appeal is limited only to a review of that evidence even if no other evidence is adduced on the hearing of the appeal. For example, on an appeal by way of a rehearing, the appeal court considers the law as it applies at the time of the rehearing. The court conducting the rehearing can also, where necessary to redetermine the matter on the evidence, apply the procedural provisions which operated in the trial court. As Hunt J (as he then was) said in Huntley Colliery Pty Ltd v State Pollution Control Commission, “the appeal is on almost all fours with an appeal from the decision of a magistrate to the District Court”. This statement was applied in Camilleri’s Stock Feeds Pty Ltd v EPA . The difference in the nature of an appeal to this Court and an appeal from a magistrate to the District Court, is that an appeal under s 5AA is not a new hearing in which the prosecutor is required to lead the evidence to support the charge afresh.”

        See also Cliftleigh Haulage Pty Limited v Byron Shire Council [2005] NSWLEC 692 (1 December 2005) at [16]-[20].


The evidence on the appeal

15 The appeal proceeded on transcripts of evidence in the original Local Court being:


        (a) the transcript of the hearing in the Local Court at Balmain on 9 September 2005;

        (b) a bundle of Council documents including file notes of Council officers, various letters and notices, and photographs taken on 23 June 2004 (collectively being exhibit 1 in the Local Court);

        (c) two references as to the character of the appellant, one from Mr E Reddy dated 5 September 2005 and the other from Mr J Papas dated 7 September 2005, as well as a chronology prepared by the solicitor for the appellant together with documents referred to therein (collectively being exhibit 2 in the Local Court); and

        (d) a sketch map and photographs of the subfloor area taken on 9 September 2005 (collectively exhibit 3 in the Local Court).

16 The appellant also sought leave under s 37(2) of the Review Act to give fresh evidence. That evidence was documentary in nature and comprised the following:


        (a) a memorandum of an engineer, Mr Pellicano, dated 14 September 2005;

        (b) an order under s 124 of the Local Government Act 1993 (NSW) given in a case of emergency together with a letter of 21 September 2005 to the appellant requesting structural certification, engineering detail and both development certificate and development applications for both the completed and proposed work at the subject premises;

        (c) a development application form completed by the appellant and dated 4 October 2005 together with accompanying notes;

        (d) two receipts of payments being for the lodgement fees for building certificate applications, the first on 12 August 2004 and the second on 11 November 2005; and

        (e) copies of bank statements of the appellant in the period 1 July 2005 to 16 January 2006.

17 The respondent did not oppose leave being granted by the Court. The Court has the discretion to admit fresh evidence on the appeal if it is of the opinion that it is in the interest of justice that the fresh evidence be given. The evidence was relevant to different aspects of the sentencing considerations. In these circumstances, I granted leave to the appellant to give that fresh evidence.

The incident and subsequent events

18 In about 2002, the appellant purchased a residential property comprising lot 1 in DP958060 known as “Garemyn” at 5 Rayner Street, Lilyfield.

19 The appellant said that he had noticed cracks in the walls of the dwelling house. Initially, the appellant sought to remedy the problem by filling the cracks. However, the cracks kept reappearing.

20 The appellant believed that the problem was more serious than he had originally expected. The appellant said that he concluded that he needed to reinforce the underpinnings of the house.

21 The appellant started to excavate under the footings of the house to ascertain if he could fix the problem himself. The excavation involved substantial work.

22 The carrying out of the work disturbed a neighbour. On 18 June 2004, a neighbour complained to the respondent.

23 On 22 June 2004, Mr Steven Purvis, a compliance officer with the Council, visited the premises. He observed a skip bin outside the premises. He did not enter the premises on this occasion.

24 On 23 June 2004, Mr Steven Purvis and Mr Chris Thorn, another compliance officer with the Council, attended the premises. Mr Thorn took photographs of the subfloor area. These photographs formed part of exhibit 1 in the Local Court or exhibit 2 in this Court.

25 Mr Purvis observed that the appellant was removing soil from under the dwelling house to create a storage area or basement. The excavation covered most of the footprint of the house and was to a depth of around two metres. The appellant had introduced lintels to support the works and there were steel support beams. The position of the lintels and other support beams allowed for an open floor plan.

26 The photographs taken by Mr Thorn show the matters observed by Mr Purvis. The photographs show a substantial excavation under the floor of the house.

27 Mr Purvis informed the appellant that he would be required to provide to the Council an engineer’s certificate for the stability of the dwelling house.

28 Later on that day, 23 June 2004, the Council issued a notice of demand to stop work. The notice stated, so far as is relevant:

            “ Environmental Planning and Assessment Act 1979
        NOTICE OF DEMAND TO STOP WORK.
        Development without the prior approval of Council.
            An inspection of the above property on the 23 June 2004 revealed that:-
            unauthorised excavation under the subject premises which is in contravention of the Environmental Planning and Assessment Act 1979.
            The Council requires you to:
            immediately stop all development work at the above property;
            immediately have a structural engineer inspect and report on the excavated area and structural stability of the existing premises.
            prior to commencing any further development work:
                * a Development Application is to be submitted and approved for any further contemplated work;
                * a Construction Certificate is to be submitted and approved for any further contemplated work;
                * a Building Certificate is to be obtained for the work carried out without the prior approval of Council;
                * the collection of approved plans and the payment of all relevant fees must be complied with;
                * give the Council a written undertaking by the 1 July 2004, in the form set out on the next page.”
        Accompanying the notice of demand to stop work was an undertaking.

29 On 1 July 2004, the appellant signed and returned to the Council the undertaking that had been enclosed with the notice of demand to stop work. That undertaking given by the appellant was in the following terms, namely that the appellant:

            “ UNDERTAKE to Leichhardt Municipal Council that I/we will not carry out further building work at the above property in contravention of the Environmental Planning and Assessment Act 1979,
            and
            FURTHER UNDERTAKE that by not later than 1 July 2004 I/we will do the following:-
            cease all building works;

            submit a structural engineer’s report;

            submit a Building Certificate application for Council’s consideration for the works carried out without the prior approval of Council;

            prior to commencing any further work, submit and obtain a Development Consent to any further contemplated building work;

            reimburse Council any and all outstanding fees relating to the premises under construction;

            I/we understand the nature of this undertaking and note that the Council advise me/us to seek legal advice before signing.

            I/we understand that if I/we reach this undertaking the Council may exercise its powers in relation to the illegal building work and may present this undertaking in evidence to a Court.”

30 On 8 July 2004, Mr Purvis of the Council received a telephone call from a structural engineer engaged by the applicant, Mr Anthony Pellicano. Mr Pellicano advised that he had attended the premises. His inspection indicated that underpinning is required immediately and that the Council should lift the stop work order until such time as the underpinning is complete. Mr Purvis informed Mr Pellicano that the Council would allow this work to be performed but would require something in writing to add to the file.

31 Mr Pellicano faxed a letter from him dated 2 July 2004 but received by the Council on 8 July 2004. That facsimile stated:


            “I attended the site on Friday 02 July 2004 to inspect the unauthorised excavation work carried out to the subfloor area of 5 Rayner Street, Lilyfield.
            In regard to the notice of demand to stop work issued by Council, it is strongly recommended that Council allow the underpinning stage of the works to proceed to ensure the structural stability of the existing structure is maintained.
            Once all the underpinning is completed and the structural stability of the existing structure is maintained, then works can cease until the owner complies with all the conditions of the notice of demand to stop work.”

32 On 10 August 2004, the appellant lodged an application for a building certificate for works that the appellant described as “underpinning/storage space.”

33 On 30 August 2004, the Council wrote to the appellant requesting information, in particular a surveyor’s report, and deferring further consideration of the building certificate application until the information was received by the Council.

34 On 1 September 2004, Mr Byers received a survey of the land. However, the survey did not show the area that had been excavated under the floor of the dwelling house.

35 On 22 September 2004, the Council again wrote to the appellant requesting further information, this time a structural engineer’s design and certificate for the excavation works to be carried out beneath the dwelling and a structural certificate of works undertaken to date. Again the Council advised that it had deferred consideration of the building certificate application until the further information was received by the Council.

36 The appellant claimed that he never received this letter.

37 On 16 November 2004, the Council again received a complaint from a neighbour about building works being undertaken by the appellant on the land. The neighbour complained that excavation, movement of bricks and other building materials, drilling and hammering were taking place. The work was occurring at all hours of the night, during the week and weekends.

38 On 16 and 19 November 2004, Mr David Morley and Mr David Shaw of the Council visited the premises but no one was home.

39 On 29 November 2004, Mr Morley inspected the premises and observed that no further work seemed to have been undertaken since the undertaking was signed to stop work.

40 On 9 September 2005, representatives of each of the Council and the appellant attended the appellant’s property and prepared a sketch map of the excavated area and took photographs. The sketch map showed the dimensions of the excavated area to be, at their greatest, 6.5 metres by 8 metres. The photographs showed that a concrete slab floor had been poured in part of the excavated area, brick walls had been built on the faces of the excavation, a door frame entrance had been installed and a staircase had been built from the entrance to the floor. The photographs also show electrical wiring. These items of building work appear to have been done subsequent to the offence period in June 2004, as they do not all appear in the photographs that were taken on 23 June 2004.

41 On 14 September 2005, the appellant’s engineer, Mr Pellicano, wrote to the appellant stating:

            “Having inspected the excavation of the subfloor area to the existing premises on 12 September 2005, along with the underpinning works being carried out, I am of the opinion that the structural adequacy and integrity of the existing structure has not been diminished.

            The 500 x 500 concrete footings reinforced with 4L12TM top and bottom and R10 ties at 300 centres are adequate to maintain the load bearing capacity of the existing structure for a clay foundation.

            Provided that all the existing walls in the subfloor area are continued down to the excavation level of the subfloor area and are underpinned using the above footing detail, the structural adequacy and integrity of the existing structure will not be jeopardised.
            It is strongly recommended that all underpinning works be carried out immediately until all underpinning of the subfloor area walls is complete to ensure the structural stability of the existing structure.”

42 On 21 September 2005, the Council issued an order under s 124 of the Local Government Act 1993 (NSW) in terms of order number 21 in the table to s 124 of that Act. That order required:

            “1. The unauthorised excavated basement area of the subject premises is to be certified by a Practising Structural Engineer as to its structural integrity and stability.

            2. If required carry out structural repairs to the unauthorised excavated basement area of the subject premises as directed by the Practising Structural Engineer to ensure the structural integrity and stability of the unauthorised excavated basement area. Practising Structural Engineer’s details are to be submitted prior to the repairs being carried out.

            3. On completion of any structural repairs a certificate on the structural adequacy of the unauthorised excavated basement area is to be submitted by the Practising Structural Engineer.

            4. Submit a Building Certificate application for the unauthorised excavation works which have been undertaken and a Development Application for any proposed works required to complete the basement excavation together with the payment of the relevant administration fees so that consideration may be given for the unauthorised and proposed development work.”

43 On the same day, 21 September 2005, the Council wrote to the appellant. The Council referred to the emergency order as well as a structural engineer’s memorandum from Mr Pellicano, received on 27 September 2005. I assume that that is the same memorandum as the one of 14 September 2005. The letter repeated the four steps required to be taken by the order. The Council gave as the reasons for issuing the order the following:

            “1. The subject premises in its current state is unsafe as the integrity and structural adequacy of the unauthorised works is unknown and repair works are urgently required to ensure the safety and structural stability of the unauthorised excavation works.

            2. The unauthorised excavation works do not fall within Council’s Development Control Plan No 35 (DCP35), exempt development, and as such the works would have required the prior consent and assessment of Council.”

44 On 14 October 2005, the appellant completed and attempted to lodge with the Council a development application for alterations and additions to a single dwelling. For an unexplained reason, this development application was not received by the Council and processed.

45 On 11 November 2005, the appellant lodged a second application for a building certificate and paid the requisite application fee.

The sentence imposed by the Local Court

46 The appellant originally pleaded not guilty to the charge. However, on 6 September 2005, the appellant advised the Local Court and the prosecutor of his intention to change its plea. On 9 September 2005, the appellant, through his solicitor, Mr Peluso, formally entered a plea of guilty.

47 The matter was heard on that day, 9 September 2005. Magistrate Kennedy delivered an ex tempore judgment.

48 In evaluating the objective gravity and circumstances of the offence, Magistrate Kennedy took into account the following matters:


        (a) The offence against s 125(1) of the EPA Act embraces a very broad spectrum of offences from the most trivial to the most serious: transcript 9 September 2005 at p 13, line 56.

        (b) The jurisdiction limit of the Local Court is $110,000: transcript at p 14, line 1 (incorrectly referred to as a maximum penalty).

        (c) The size of the excavation is two metres deep and quite extensive: transcript at p 14, lines 607.

        (d) The Council had a concern as to the integrity of the structure, particularly the foundations, and requested an engineer’s report: transcript at p 14, lines 8-12.

        (e) The carrying out of the works by the appellant himself raised issues of health, safety, working hours, comfort of neighbours and the like, which issues would have been addressed had the appellant complied with s 76A(1) of the EPA Act and made a Development Application to the Council: transcript at p 14, lines 18-21.

        (f) The fact that the excavations are substantial and cover a large area of the subfloor means that, when completed, the room thereby created would add some value to the property, although this had not been quantified. Hence, the appellant by committing the offence, stood to gain some financial advantage, although that has not been quantified: transcript at p 14, lines 23-31.

        (g) There is a need for deterrence, both specific and general. The court must uphold the integrity of the planning and legislation instruments: transcript at p 14, lines 33-35.

        (h) The claim by the appellant that he was not aware of the need to obtain approval. However, such a claim was a little difficult to accept given the nature and scope of the excavations: transcript at p 14, lines 35-38.

        (i) The appellant was not as co-operative as he should have been. Magistrate Kennedy noted the claim by the appellant that he had not received the Council’s letter of 22 September 2004 requiring engineering reports and certificates. However, given the Council’s earlier order to stop the work and advice to stop the work when the Council officers visited the premises, the appellant was obliged to follow up the matter and make sure that he did obtain the appropriate consents: transcript at p 14, lines 46-53.

        (j) Having regard to these matters, the offence is not trivial, but it is not in the mid-range: transcript at p 14, lines 14-15, 55-58.

49 The subjective circumstances of the appellant taken into account by Magistrate Kennedy included:


        (a) The plea of guilty. The appellant was entitled to a “substantial” discount for the utilitarian value of the plea of guilty: transcript at p 15, lines 10-13.

        (b) The appellant’s financial situation. There was not a great deal of evidence of that except that the appellant purchased the property three years ago, the appellant works as a supervisor for one of the referees and the property was purchased by the appellant for a little over $600,000 but there was a mortgage of $450,000: transcript at p 15, lines 13-18.

        (c) The appellant might incur further expense as a result of further rectification work, but that was only speculative at this stage: transcript at p 15, lines 20-29.

        (d) The appellant has no prior convictions on record: transcript at p 15, lines 29-30.

50 In relation to the principle of even-handedness, Magistrate Kennedy noted that the usual penalties for the offence charged, leaving aside the plea of guilty and lack of priors, was in the order of $15,000 to $20,000: transcript at p 15, lines 32-34.

51 Taking the objective circumstances of the offence and the subjective circumstances of the appellant into account, Magistrate Kennedy determined that the appropriate penalty was a fine in the amount of $12,000: transcript at p 15, line 37.

The appellant’s submissions

52 The appellant, My Byres, appeared for himself on the appeal. Mr Byers made the following submissions in chief:


        (a) The appellant, in carrying out the works, was trying to stabilise the house, and in doing that he created “a bit more space”;

        (b) The appellant cannot afford to pay a fine of the magnitude imposed by the Local Court. The appellant was struggling to work. In this regard, the appellant tendered bank statements of at least one bank account together with notices of dishonour of drawing on three occasions, 16 September 2005, 16 November 2005 and 16 January 2006. The drawing referred to was by Perpetual Trustees, which the appellant informs the Court is the mortgagee.

        (c) Subsequent to the offence period in June 2004, the appellant continued to carry out works. The reason, the appellant submitted, was that he said he did not know where he stood. After an inspection by Council in relation to the application for a building certificate in August 2004, nothing was done or said to the appellant, so he kept working. He engaged and consulted with an engineer, Mr Pellicano, and says that he complied with instructions of Mr Pellicano. After the Local Court hearing on 9 September 2005, the appellant says the Council told him to make the works safe and he asserts that he did that, including arranging for Mr Pellicano to inspect the works. He made a second building certificate application and tried to make a development application. As I understand this submission, the appellant is seeking to explain his subsequent conduct in order to rebut the finding of Magistrate Kennedy that he was not as co-operative as he should have been.

        (d) The appellant pleaded guilty before the Local Court on the advice of his solicitor, Mr Peluso. However, the appellant did not want to plead guilty. The appellant says the reason why he did not want to plead guilty was that he did not think that digging under the house was development that needed development consent; he says he was not building anything.

        (e) The excavation under the house would have an ancillary benefit of creating storage space. This would permit the appellant to remove the contents of sheds that were in the back yard into the excavated area, thereby permitting the removal of the sheds in the back yard and creating more space in the back yard.

53 In reply to the Council’s submissions, the appellant made the following further submissions:


        (a) When the appellant bought the house, he did not obtain a building certificate. He noted that the previous owner or occupant had already dug in part under the floor of the house to a depth of about four feet. There was also a fluorescent tube and wiring in the subfloor area.

        (b) Although the appellant did not seek any advice from an engineer prior to carrying out the works that constituted the offence during the period in June 2004, after the Council issued the appellant with a stop work order, the appellant did obtain verbal advice from an engineer, Mr Pellicano. The appellant continued to seek advice from Mr Pellicano through 2005.

        (c) The Council requested the appellant to obtain a surveyor’s report, which he did, but subsequently the Council advised that such a report was not needed.

        (d) After the hearing in the Local Court on 9 September 2005, the Council requested the appellant to take certain action including applying for a building certificate and obtaining advice from a structural engineer. The appellant did make application for a building certificate on 11 November 2005 and did seek advice from his structural engineer, Mr Pellicano. The appellant also completed and attempted to lodge a development application with the Council.


The respondent’s submissions

54 Mr Howard of counsel appeared for the respondent, the Council. Mr Howard’s primary submission was that the fine imposed by the Local Court of $12,000 was appropriate and could not be categorised as too severe or warrant this Court on appeal reducing it. The respondent did not contend that this Court should increase the fine.

55 In relation to the objective circumstances of the offence, Mr Howard submitted:


        (a) An offence against s 125(1) of the Act which involves a contravention of the prohibition in s 76(1)(a) of the EPA Act serves an important purpose, having regard to the objects of the EPA Act, namely to ensure that due process is followed in the carrying out of the development and to thereby ensure the development is carried out in an orderly fashion and to provide an opportunity for public participation in its assessment. Critically, the planning system as a whole would be rendered ineffective if developments were being carried out without development consent or in contravention of conditions of development consent: Carlino v Leichhardt Municipal Council [2005] NSWLEC 198 (27 April 2005) per Lloyd J at [32]; and Mosman Municipal Council v Menai Excavations Pty Limited (2002) 122 LGERA 89.

        (b) The commission of the offence, given the extent and depth of the excavation and given that it was neither carried out, nor supervised, nor inspected at the relevant time by any suitably qualified professional, created a risk to the safety of occupants of and entrants to the cottage.

        (c) The works which were carried out in contravention of the EPA Act also had sufficient perceived amenity impacts on other persons as to have prompted the complaints.

        (d) As a result of the matters in (a)-(c), the offence is objectively serious in nature.

        (e) The appellant’s reason for the commission of the offence is relevant to assessing the objective gravity of the offence. The appellant’s motive in committing the offence was to create room for storage at basement level. The appellant’s motive is evidenced by the nature and extent of the excavation, the admission made by the appellant through his solicitor that what happened was that once the appellant started excavating he thought “well I may as well now use that”, although it was not his intention to start, the description of the works as “underpinning/storage” in the building certificate application dated 10 August 2004, and the subsequent actions of the appellant after the commission of the offence in making the space suitable for storage.

        (f) The commission of the offence was pre-meditated.

56 In relation to the subjective circumstances of the appellant, Mr Howard made the following submissions:


        (a) The appellant has no prior convictions for environmental offences.

        (b) The appellant pleaded guilty, however the plea of guilty was late, being notified only three days before the hearing. In these circumstances the discount for the utilitarian value of the plea should be at the lower end of the range of ten to twenty five per cent.

        (c) There was a lack of any contrition or remorse by the appellant for commission of the offence.

        (d) The appellant had not been as co-operative as he could have been in relation to following the matter up with post-offence inspections, et cetera.

        (e) The evidence of character in the form of references adduced by the appellant and forming part of exhibit 2 before the Local Court, in this Court exhibit 3, should be given little weight. The authors of the references were apparently not aware of the charge before the Court. They appeared to be generic references for the purposes of employment.

        (f) The evidence in relation to capacity to pay was largely indefinite.

57 Mr Howard submitted that a fine in the amount of $12,000 can be seen to be proportionate both to the objective gravity of the crime and the subjective circumstances of the appellant.

58 In relation to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), Mr Howard submitted that there is a need for both specific and general deterrence. There is a need for specific deterrence because of the reckless nature of the contravention of the law by the appellant. There is a need for general deterrence because of the public interest in ensuring that such works are not undertaken without proper assessment and without the imposition of adequate safeguards and controls. Further in relation to general deterrence, Mr Howard cited the dicta in R v Rushby [1977] 1 NSWLR 594 at 597 and Keir v Sutherland Shire Council [2004] NSWLEC 754 (7 December 2004) at [20].

59 In relation to the principle of even handedness, Mr Howard handed up a table that he had prepared of sentences imposed by this Court for offences against s 125(1) of the Act involving building works. That table showed a range of sentences from $10,000 to $75,000. Starting at the lower end of the range and moving in ascending order of magnitude, these sentences are as follows:


        (a) Woollahra Municipal Council v Byrnes and Consolidated Byrnes Holdings Pty Ltd [2002] NSWLEC 125 (15 April 2002) ($10,000 for the company and $2,000 for the individual);

        (b) Waverley Council v Boris Meck [2005] NSWLEC 655 (20 September 2005) ($20,000);

        (c) Mosman Municipal Council v Menai Excavations (2002) 122 LGERA 89 ($30,000),

        (d) City of Sydney Council v Gravity Corporation Pty Limited [2001] NSWLEC 219 (20 September 2001) ($30,000, although the offence was committed at a time when the maximum penalty was only $110,000);

        (e) City of Sydney Council v Schwartz [2003] NSWLEC 201 (28 July 2003) ($40,000);

        (f) City of Sydney Council v Schwartz [2003] NSWLEC 261 (11 September 2003) ($50,000); and

        (g) Ku-ring-gai Municipal Council v Kizana [2002] NSWLEC 187 (29 July 2002) ($75,000).

60 The cases in which the larger fines were imposed were, on examination of the facts, more serious than the current offence and offender.

61 Mr Howard noted that there is always difficulty in consulting other cases. Each case depends on its own facts. Nevertheless the task of a sentencing judge is to pursue the ideal of even handedness. Mr Howard submitted that having regard to the table of comparable sentences, a fine of $12,000 cannot be said to offend the principle of even handedness.


62 The objective circumstances of the offence to which the Court must have regard include:


        (a) the maximum penalty;

(b) the objective harmfulness of the appellant’s actions;

(c) the appellant’s state of mind in committing the offence;

(d) the reasons for committing the offence; and

(e) the need for general deterrence.


63 The maximum statutory penalty is relevant to determining the objective gravity of an offence. As was stated in Camilleri’s Stock Feeds Pty Limited v Environment Protection Authority (1992) 32 NSWLR 683 at 698:

            “The maximum penalty available for an offence reflects the public expression of Parliament of the seriousness of the offence:” See also Capral Aluminium Ltd v WorkCover Authority of NSW (2000) 49 NSWLR 610 at 633”.

64 The maximum penalty for an offence against the EPA Act is 10,000 penalty units or $1,100,000: s 126(1) of the EPA Act. A penalty unit is equal to $110: s 17 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

65 However, because the proceedings were commenced in the Local Court, there was a jurisdictional limit on the amount of penalty that could be imposed by the Local Court of 1,000 penalty units or $110,000: see s 127(3) of the EPA Act.

66 The maximum penalty for an offence against the Act remains $1,100,000, notwithstanding the jurisdictional limit of $110,000 as a result of the proceedings being brought in the Local Court. In R v Doan (2000) 50 NSWLR 115 at 123, Grove J with whom Spigelman CJ and Kirby J agreed, stated that a statutory provision imposing a ceiling on the maximum sentence that may be imposed by the Local Court is:


            “...a jurisdictional maximum and not a maximum penalty for any offence triable within that jurisdiction. In other words, where the maximum applicable penalty is lower because the charge has been prosecuted within the limited summary jurisdiction of the Local Court, that Court should impose a penalty reflecting the objective seriousness of the offence, tempered if appropriate by subjective circumstances, taking care only not to exceed the maximum jurisdictional limit.”

        See also Ebarcarb Pty Limited v Environment Protection Authority [2003] NSWLEC 411 (2 December 2003), Talbot J at [9]-[11] and Carlino v Leichhardt Municipal Council [2005] NSWLEC 198 (27 April 2005), Lloyd J at [25]-[26].

Objective harmfulness of the appellant’s actions

67 The objective harmfulness of the appellant’s actions is relevant to determining the seriousness of the offence.

68 The work undertaken by the appellant is, objectively viewed, serious having regard to the following factors:


        (a) The extent of the work. The sub floor area has been excavated to two metres in depth and to a length and width, at the greatest points, of 6.5 metres times 8 metres. The excavated area occupies most of the footprint of the house. A substantial volume of soil and other material has therefore been excavated. This remains true even if there had been some excavation prior to the appellant purchasing the house.

        (b) The space created by the excavation had an open floor plan and was capable of being, and indeed subsequently was, fitted out as a basement area with a concrete slab floor, brick walls, doorframe at the entrance, and staircase from the entrance to the floor.

        (c) The integrity and stability of the house and its foundations may have been compromised.

        (d) The work was carried out by the appellant who has no building or engineering expertise and was not done, at least in the offence period, pursuant to any engineering design or specifications so as to ensure that the integrity and stability of the house and foundations were maintained.

        (e) The work was carried out without regard to health and safety concerns, either for the appellant or for other entrants to the house.

        (f) The work was carried out at times and in a manner that caused disturbance to the comfort and amenity of neighbours.

        (g) The failure to comply with s 76A(1)(a) of the EPA Act by submitting a development application precluded the responsible public authority, the Council, from considering and addressing the issues in (a)-(f) above, including by refusing development consent or by granting development consent but subject to conditions which prevented or mitigated to an acceptable level any adverse impacts, such as the ones that I have described.

The appellant’s state of mind

69 An accused’s state of mind can increase the seriousness of the offence.

70 The appellant undertook the work constituting the offence intentionally. The excavation, and the subsequent building work to create a storage space, far exceeded what reasonably could have been required to address the cracking of the walls. It is quite clear that the appellant intended, as an actuating purpose of the works, to create a storage space in the sub floor area.

71 Further, the appellant’s conduct in excavating at all, and certainly to the extent that the appellant did excavate in and around the foundations of the house, was negligent. The appellant asserts that he was concerned to address cracking in the walls, which cracking he considered to be caused by instability in the foundations resting on clay. The appellant had no qualifications or experience in building or engineering. In these circumstances, no reasonable person in the position of the appellant would excavate at all or certainly to the extent that the appellant excavated in and around foundations that were apprehended to be unstable. Clearly there was a foreseeable risk of exacerbating the instability and threatening the structural stability and integrity of the house. That foreseeable risk of harm eventuated.

72 The Council - the public authority charged by the legislature with the responsibility for ensuring that building work, including excavation, is carried out with development consent and with due regard being had to health and safety considerations - immediately ordered the appellant to stop work because of the Council’s justified concerns as to the stability and integrity of the house and works. The engineer engaged by the appellant also had the same concerns upon inspecting the works. He advised that underpinning needed to be undertaken immediately. The subsequent studies including by the engineer and the directions by the Council only confirmed the effect that the appellant’s works have had on threatening the structural integrity and stability of the house.

73 In these circumstances, the offence can be seen to be foreseen, negligent and the consequence of conduct that was intended by the appellant: see Camilleri’s Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 700.

The appellant’s reasons for committing the offence

74 The criminality involved in the commission by the appellant of the offence is not only to be measured by the seriousness of what occurred, but also by reference to the reasons for its occurrence: Axer Pty Limited v Environment Protection Authority (1993) 113 LGRA 357 at 366.

75 The appellant did not undertake the work merely to improve the stability of the house; indeed as I have said the actions taken may have threatened the stability of the house. The appellant also wanted to create an extensive storage space in the subfloor space.

76 This is evident from the extent of the works (the length, breadth and depth of the excavation, covering most of the footprint of the house. It is also evident from the nature of the works (the open floor plan which was conducive to the installation of a concrete slab floor, brick walls, door frame, entrance and staircase, which were constructed subsequently to the offence period). The extent and nature of the works provide a basis to draw the inference that the appellant desired to create an extensive storage space.

77 Furthermore, the appellant stated in his application for a building certificate lodged within a matter of months after being apprehended and being ordered to stop work that the works were “underpinning/storage space.”

78 The appellant’s solicitor, Mr Peluso, at the hearing before the Local Court, submitted that “once the appellant started excavation he thought ‘well I may as well now use that’ but it wasn’t his intention to start”: transcript 9 September 2005, p.5, lines 44-46.

79 Mr Byres also stated from the bar table in his submissions on this appeal that the space created by excavation could be used beneficially for storage space.

80 Magistrate Kennedy found, in his judgment, that the completed works would add some value to the property and that the appellant stood to gain some financial advantage from committing the offence, although that value and that financial advantage had not been quantified. The appellant does not contest these findings.

81 The reasons of the appellant in committing the offence add to the seriousness of the offence.

The need for general deterrence

82 Courts have continuously and consistently stressed the need for general deterrence in sentencing for environmental offences, including offences against the EPA Act. Many of the cases in which courts have so stated are set out in the judgment in Cameron v Eurobodalla Shire Council [2006] NSWLEC 47 (13 February 2006) at [71]-[80]. In addition, for cases involving the carrying out of demolition, excavation and building work without consent, see Mosman Municipal Council v Waratah Village Partners Pty Limited [2003] NSWLEC 101 (28 March 2003) at [30]; Warringah Shire Council v Sahade [2004] NSWLEC 333 (27 May 2004) at [15]; Pittwater Council v Walters [2004] NSWLEC 75 (3 February 2004) at [16] and [18]; Keir v Sutherland Shire Council [2004] NSWLEC 754 (7 December 2004) at [13]-[15]; Fairfield City Council v Cavasinni Constructions Pty Limited [2005] NSWLEC 187 (22 April 2005) at [26]; and Carlino v Leichhardt Municipal Council [2005] NSWLEC 198 (27 April 2005) at [31]-[34], as well as the cases referred to by Mr Howard in his table and cited earlier in this judgment.

83 The sentence of the Court should properly operate as a powerful factor in preventing the commission of similar crimes by persons who might be tempted to do so by the prospect that, if they are caught, only light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597. This is particularly so in the context of unlawful development, having regard to the policy considerations that have been articulated, including by Lloyd J in Mosman Municipal Council v Menai Excavations Pty Limited (2002) 122 LGERA 89 and Carlino v Leichhardt Municipal Council [2005] NSWLEC 198 (27 April 2005). The carrying out of development without first obtaining development consent undermines the system of planning established under the EPA Act.

84 The appellant submitted that he was not aware of the need to obtain development consent for digging or excavating under the dwelling house. Of course, excavation can involve development, as it did in this case. The purpose for which the excavation was carried out was for the purpose of the dwelling house. There was a need to obtain development consent.

85 The system of planning control established under the EPA Act depends on persons, such as the appellant, taking steps to obey the law by ascertaining when development consent is required and then obtaining the development consent before carrying out the development: Byron Shire Council v Fletcher [2005] NSWLEC 706 (25 November 2005) at [60] and Cameron v Eurobodalla Shire Council [2006] NSWLEC 47 (13 February 2006) at [72].

86 Accordingly, it was incumbent upon the appellant to have made proper enquiries to ascertain what constituted development and when development consent was needed for such development. There is a need for a general deterrence so that others, like the appellant, will be put on notice that they are obliged to make the necessary enquiries of the need for development consent and then obtain development consent.

87 There is also a need to deter other persons from taking unilateral action such as was taken by the appellant in this case. The appellant’s actions had significant consequences including circumventing the integrity of the system of planning and development control and the process of careful, expert consideration that occurs on the lodgement of a development application, including of the issues of the structural stability and integrity of the dwelling house, the health and safety of the occupants and other entrants, the disturbance to the comfort and amenity of neighbours and the suitability and habitability of the basement area.

88 Magistrate Kennedy was correct to take into consideration the need for general deterrence.

Subjective circumstances of the defendant

89 The subjective circumstances of the appellant include:

(a) no prior convictions;

(b) a plea of guilty;

(c) any contrition and remorse;

(d) any co-operation with the regulatory authorities;

(e) the good character of the appellant; and

(f) the financial means of the appellant.

No prior convictions

90 The appellant in this case has no prior convictions. The lack of prior criminality is a factor in sentencing in this case: see Camilleri’s Stock Feeds Pty Limited v Environment Protection Authority (1992) 32 NSWLR 683 of 701 and s.21(A)(3)(e) of the Crimes (Sentencing Procedure) Act 1999.

Plea of guilty

91 The appellant has pleaded guilty to the offence. Section 22 of the Crimes (Sentencing Procedure)Act 1999 expressly requires the Court to take into account the fact that the offender has pleaded guilty and when the offender pleaded guilty. Accordingly, the Court may impose a lesser penalty than it would have otherwise imposed.

92 A guideline judgment in respect of the discount for plea has been given by the Court of Criminal Appeal in R v Thomson; R v Houlton (2000) 49 NSWLR 383. The utilitarian value for a plea of guilty has been assessed to be in the range of ten to twenty-five percent on sentence.

93 A primary consideration in determining where in the range a particular case should fall is the timing of the plea: R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 418 [154], 419 [160] and s 22(1)(b) of the Crimes (Sentencing Procedure) Act 1999.

94 In this case, the appellant originally pleaded not guilty. The first return date in the Local Court was 13 April 2005 at which there was no appearance by the appellant. On 18 May 2005, the matter was adjourned to enable the appellant to seek legal advice. On 8 June 2005, the matter was again adjourned, the defendant having left a message that he was sick. The matter was apparently again adjourned on 29 June 2005. On 13 July 2005, the appellant pleaded not guilty. This remained the situation until 6 September 2005, three days before the hearing, when the appellant’s solicitor wrote to the Local Court Registry and also indicated to the respondent that the appellant had decided to change his plea to guilty. On the day of the hearing, 9 September 2005, the appellant, through his solicitor, formally entered a plea of guilty.

95 In Environment Protection Authority v Australian Waste Recyclers 1 Pty Limited [2005] NSWLEC 739 (22 December 2005), the defendant indicated to the prosecutor its intention to change its plea from not guilty to guilty only one and a half days before the trial. Cowdroy J considered that the extreme lateness of the indication of change of plea warranted only a 10 per cent reduction: at [163]. See also R v Karacic (2001) 121 A Crim R 7 at 11 [17] and R v MacDonnell (2002) 128 A Crim R 44 at 51 [40].

96 Such an approach accords with the holding in R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 418 [155] that:

            “A discount towards the bottom of the range [10-25 per cent] is appropriate for late pleas, for example, on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial.”

97 Magistrate Kennedy considered that the appellant should be entitled to a “substantial” discount for the appellant’s plea of guilty. Magistrate Kennedy did not quantify what he meant by “substantial”.

98 I am, however, of a different view. The lateness of the indication by the appellant of his intention to change his plea, and the absence of any particular benefits arising from the prospective length and complexity of the trial for the offence with which the appellant was charged, indicate that the discount should be towards the bottom of the range. I would quantify that discount at 12.5 per cent.

Contrition and remorse

99 The appellant’s plea of guilty entitles him to a discount reflecting the utilitarian benefit. In addition, however, if contrition and remorse is expressed, a defendant is entitled to a further discount: Neal v R (1982) 149 CLR 305 at 315; Camilleri’s Stock Feeds v Environment Protection Authority (1993) 32 NSWLR 683 at 700; and Environment Protection Authority v Ampol Ltd (1995) 85 LGERA 443 at 447.

100 There is little evidence in this case that the appellant is contrite and remorseful. The appellant originally pleaded not guilty and only indicated a change of plea three days before the hearing, formally entering the plea of guilty at the hearing. The appellant stated before Lloyd J of this Court, on the hearing of the Council’s motion, that he did not wish to plead guilty but only did so on the advice of his solicitor and against his better judgment. The appellant repeated that submission on the appeal. He added an explanation, namely that he did not consider that the digging of soil underneath his house constituted development. That view, of course, was erroneous in law. Nevertheless, these statements by the appellant indicate that he still does not have an appreciation of or any contrition or remorse for the fact that he has contravened the EPA Act and committed an offence.

101 I should also add that the mere plea of guilty, from a person caught red-handed as the appellant was in this case, is not evidence of remorse: see R v Power [1999] NSWCCA 25 (5 March 1999) at [21] per Dunford J with whom Greg James J and Grove J agreed.

102 The absence of contrition and remorse by the appellant points to there being a need in this case for specific deterrence as a purpose of sentencing.

Co-operation with a regulatory authority

103 The co-operativeness of an accused is a matter to be taken into account in fixing penalty: Camilleri’s Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 700-701 and s 23(1) of the Crimes (Sentencing Procedure) Act 1999.

104 The co-operation of the appellant with the relevant regulatory authority, the Council, has been patchy. The appellant did permit council officers to inspect the premises when he was home on 23 June 2004. This was during the offence period. He also permitted an inspection at a later time on 29 November 2004. Further the appellant permitted an inspection on the day of the hearing before the Local Court on 9 September 2005.

105 The appellant signed and furnished to the Council an undertaking in the form enclosed with the stop work order on 23 June 2004 not to carry out any further work and to undertake certain steps to regularise the work. However, the appellant continued to do work contrary to both the stop work order and his undertaking, at least in and around November 2004. This work led to further complaints by neighbours.

106 The appellant submitted that he had been told by his engineer, Mr Pellicano, that he could carry out the works and he thought that, notwithstanding the stop work order and his solemn signed undertaking to the Council, that he could continue work. As Magistrate Kennedy found this is difficult to accept. The terms of the stop work order and the terms of the undertaking given by the appellant are clear: no further work should be carried out unless and until each and every one of the requirements set out in those documents had been complied with. Those requirements had not been complied with before the appellant carried out the work.

107 It is true that, at least in more recent times, the appellant has sought to regularise the work that he has carried out. He has made a further application for a building certificate and he endeavoured to make a development application. He has obtained advice from his engineer, Mr Pellicano.

108 Nevertheless, there still seems to be a lack of appreciation by the appellant of the criminality involved in his conduct, and the need to comply strictly with the law, the Council orders and his undertaking.

109 Magistrate Kennedy found that the appellant, after receiving the stop work orders and advice from the Council, failed to follow up the matter and make sure he obtained the appropriate consents. Such action was warranted, whether or not the appellant received the Council’s letter of 22 September 2004. Magistrate Kennedy found that the appellant has not been as co-operative as he could have been. That is an appropriate finding on the evidence.

110 In the circumstances, this factor of co-operation should not be given any significant weight.

Good character of the appellant

111 The good character of an accused is a mitigating factor: s 21A(3)(f) of the Crimes (Sentencing Procedure) Act 1999.

112 The appellant tendered at trial two character references. The first was from a Mr E Reddy, the managing director of Eddy’s General Cleaning and Contracting Pty Limited, dated 5 September 2005. This reference suffers in that it is addressed to “To whom it may concern” and not to the Court, and it fails to state or to evidence that the referee was aware that the appellant had been charged with an offence, let alone the particular offence against s 125(1) of the EPA Act. It reads as a generic reference for the purposes of employment.

113 The reference from Mr Reddy states:

            “I have known David Byres for the past 13 years.

            During this time David has worked as part of our team since August, 2002. We have found him to be a very reliable and honest person. He has been very professional with his work as a Senior Supervisor. His friendly personality and his [sic] well liked by both management and employees in our company at Eddy’s General Cleaning and Contractors Pty Limited.

            I have no hesitation recommencing David Byres to any corporation, as he is a great asset to any endeavour he chooses to pursue.”

114 The second reference was from Mr J Papas, director of Galleria Veloce. This reference suffers from the same defects as the first reference, also being addressed to “To whom it may concern” and also not indicating that the referee is aware that the appellant has been charged with a criminal offence. Furthermore, there is no explanation as to what organisation “Galleria Veloce” is or how the appellant has any relationship with it, or with the director of Galleria Veloce, Mr J Papas. Nevertheless, the reference states:

            “Please be advised that I have known David Byres for the past (15) years. During this time I have known and found David Byres to be a very reliable and honest person.

            His friendly personality and his [sic] well liked by both management at Galleria Veloce and myself.”

115 It is to be noted that the same language and typographical errors occur in both references, particularly, the reference to “his friendly personality and his well liked by both management, et cetera”.

116 In all the circumstances, the probative value of this evidence of the character of Mr Byres is low. Nevertheless, some credit for the stated good character of the appellant should be given in sentencing.


117 Section 6 of the Fines Act 1996 (NSW) provides:

            “In the exercise by a Court of a discretion to fix the amount of any fine, the Court is required to 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.”

118 Before the Local Court, the appellant’s solicitor, Mr Peluso, had a discussion with Magistrate Kennedy to the following effect:

            “His Honour: Just one other matter, Mr Peluso. Your client’s financial situation, I do not believe you have indicated anything in that regard.

            Peluso: I’m sorry your Honour. I should also have tendered, if I may, two references, if I may.

            His Honour: This does not tell me much about his financial situation.

            Peluso: It doesn’t your Honour, no. I haven’t a great deal of instruction as to his finance, but what he has said to me is that had he been able to afford it, he would have employed people to do the work, and that very issue that he is doing the work himself, he is trying to save money, is because he has got financial difficulties.”

119 On the appeal, the appellant tendered some bank statements. These bank statements are not particularly informative. They show that a cheque account as at 7 December 2005 had a closing balance of $354.20 credit. There are also letters from the bank advising of notices of dishonour of drawings by the mortgagee, Perpetual Trustee.

120 Magistrate Kennedy dealt with the appellant’s financial situation by saying that he did not have any great detail about it “except to say that he purchased a property three years ago, he works as a supervisor for one of the referees, and that he purchased the property some three years ago for little over $600,000, and he has a mortgage, which is recorded on the title of $450,000.”

121 Collectively, this evidence is indicative of some limitations on the appellant’s financial position. However, it does not go so far as to show that the appellant would be incapable of paying, or raising finance to pay, a fine of the amount fixed by the Local Court of $12,000.

Appropriate sentence

122 As I have indicated, Magistrate Kennedy found that the appropriate sentence was a fine in the amount of $12,000. A fine of that amount clearly falls within the pattern of sentencing of criminal courts for offences against s 125(1) of the EPA Act: see the cases discussed above in the section on the respondent’s submissions. It is within the range appropriate to the objective circumstances of the offence, and the subjective circumstances of the appellant.

123 On this appeal, this Court is bound to consider the matter afresh by way of rehearing. I have indicated in the reasons above that the offence is objectively serious. I have also indicated that the mitigating circumstances of the defendant are not as great as the learned Magistrate may have found. In particular, I would allow a lesser discount for the utilitarian value of the plea of guilty. On the other hand, the evidence of the financial circumstances of the appellant may be slightly greater here than it was before the Local Court.

124 However, balancing all of the different factors, both objective and subjective, I would still come to fix a sentence of a fine in the amount of $12,000. Accordingly, I reject the appellant’s submission that the fine imposed by the Local Court is too severe.


125 The orders of the Court are:


        1. The appeal is dismissed.

        2. The penalty imposed by the Local Court of a fine of $12,000 is confirmed.

        3. The appellant is to pay the respondent’s costs of the appeal.
        **********
Most Recent Citation
Cases Cited

27

Statutory Material Cited

6

Carlino v Leichhardt Municipal Council [2005] NSWLEC 198
Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132
Keir v Sutherland Shire Council [2004] NSWLEC 754