Canterbury City Council v Saad

[2001] NSWLEC 31

Reported Decision: 112 LGERA 429

Land and Environment Court

of New South Wales

CITATION:	Canterbury City Council v Saad [2001] NSWLEC 31
PARTIES:	PROSECUTOR: Canterbury City Council DEFENDANT: Saad
FILE NUMBER(S):	50022 of 2000
CORAM:	Bignold J
KEY ISSUES:	Environmental Offences :- Sentence
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, s 125 and s 126 Crimes (Sentencing Procedure) Act 1999, s 10
CASES CITED:	Cooper v Coffs Harbour Council (1997) 97 LGERA 125; Environment Protection Authority v Norco Co-Operative Ltd (2000) 108 LGERA 137; Environment Protection Authority v Softwood Holdings Ltd (2000) 110 LGERA 87; Ku-Ring-Gai Council v Beaini (2001) NSWLEC 30; Rao v Canterbury City Council (2000) NSWCCA 471; Ryde City Council v Calleiga (1998) 99 LGERA 360; Walden v Hensler (1987) 163 CLR 561
DATES OF HEARING:	26 February 2001
DATE OF JUDGMENT:	02/28/2001
LEGAL REPRESENTATIVES:	PROSECUTOR: Mr A Hawkes , Solicitor SOLICITORS Pike Pike an d Fenwick DEFENDANT: Mr T Howard, Barrister SOLICITORS

JUDGMENT:

IN THE LAND AND

Matter No. 50022 of 2000

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

28 February 2001

CANTERBURY CITY COUNCIL

Prosecutor

v

SAYED SAAD

Defendant

JUDGMENT ON SENTENCE

Bignold J:

A. INTRODUCTION

1. In my reasons for judgment delivered on 22 December 2000 I made the following orders in the current proceedings which involved a prosecution for an offence against the Environmental Planning and Assessment Act 1979, s 125 (the EP&A Act) by implementing a development consent for the demolition of existing dwelling-houses and the construction of seven townhouses contrary to a condition of the consent which required two identified trees (Melaleuca decora) to be retained:—
1. The Defendant be found guilty of the offence charged.
2. The question of sentence be stood over to a date to be fixed with liberty to restore on three days’ notice.

2. The Prosecution has restored the case for the purpose of sentencing.

B. THE COMPETING CASES ON SENTENCE

3. The Prosecutor submits that the Court will regard the present offence as a “serious offence”, consistently with observations made by this Court and by the Court of Criminal Appeal in respect of similar charges. For example, in Cooper v Coffs Harbour Council (1997) 97 LGERA 125, the Court of Criminal Appeal, dealing with a similar charge to that involved in the present case, made the following observation at p 143 in the judgment of Howie AJ (concurred in by the other members of the Court):

The offence which has been found proved is a serious one even limited as it has been in this appeal. The removal of the trees on the site without the Council’s approval was a serious breach of the conditions upon which consent had been given to the development application by the Council. This is so even though approval would have been given for the removal of the vast majority of the trees on the site in order that the development could proceed.

4. This same passage is cited in the judgment of Lloyd J in Ryde City Council v Calleiga (1998) 99 LGERA 360 at 365 before his Honour stated the following conclusion:

It follows that despite the probability of council approval being given in due course for the removal of those trees, their removal without such consent remains a serious offence.

5. The Prosecutor also drew attention to a number of decisions in this Court involving offences against the State’s anti-pollution laws committed by the holder of a licence under the Pollution Control Act 1970 where the Court has regarded the offence as involving a breach of public trust by the licensee—see Environment Protection Authority v Norco Co-Operative Ltd (2000) 108 LGERA 137 at 144; Environment Protection Authority v Softwood Holdings Ltd (2000) 110 LGERA 87 at 95.

6. By loose analogy, the Prosecutor submitted that breach of a condition of development consent could be likened to a breach of conditions of a licence under the State’s anti-pollution laws.

7. I do not think it necessary in order to appreciate the true nature of the present offence to invoke the breach of “public trust” doctrine which this Court has applied in considering the objective seriousness of offences involving breaches of conditions of licences held under the State’s anti-pollution laws.

8. The Prosecutor has also drawn attention to the maximum penalty prescribed by the EP&A Act, s 126(1) for an offence against the Act. At the present time, that maximum penalty is 10,000 penalty units ie $1.1 million. However, by virtue of the Crimes (Sentencing Procedure) Act 1999, s 19(1), that increased penalty does not apply to the present case because the offence was committed on a date before the increased penalty (now provided by s 126(1)) came into force. Accordingly, the maximum penalty is that which was formerly prescribed, namely 1,000 penalty units ie $110,000 see Ku-Ring-Gai Council v Beaini (2001) NSWLEC 30).

9. The Prosecutor submitted that the objective and subjective circumstances of the commission of the present offence were such as to call for conviction and the imposition of a moderate fine.

10. In particular, the Prosecutor called for the imposition of a penalty which would operate as a general deterrent to educate the public generally as to the need and desirability of developers to strictly observe the conditions of development consent, and in particular, to preserve existing trees where that objective was secured by the imposition of relevant conditions of development consent (as in the present case).

11. The Defence submission ultimately sought the conditional discharge of the Defendant pursuant to the Crimes (Sentencing Procedure) Act 1999, s 10(1)(b) based upon the following mitigating factors—
(i.) this is the first offence by the Defendant who has been engaged in the development industry for the past 30 years without previous breach of planning or environmental laws;
(ii.) the Defendant is a person of fine character enjoying a respected reputation in his community as is attested by the three character references (Exhibit A);
(iii.) the objective and subjective seriousness of the offence should be assessed as very low—of the two trees removed in contravention of the condition of development consent, one was so placed in relation to the physical layout of the approved townhouse development as to make its retention impossible in the approved development—whereas the evidence had revealed very little of the precise existence of the other tree (a “bushy shrub” was how the Defendant and his brother had described it in their testimony);
(iv.) there was some inherent confusion in the development consent by virtue of the fact that the approved development plans had noted that all trees located at the rear of the proposed development were “to be removed” whereas the relevant condition of the consent had required the retention of two of those trees—the confusion being compounded by virtue of apparent incorrect plotting on the development plans of the locations of the two trees in relation to the footprint of the approved townhouse development compared with their plotting on the survey plan adduced in evidence;
(v.) the Defendant had voluntarily planted on the development site three replacement trees and was willing to be subjected to an appropriate order for replanting pursuant to the EP&A Act, s 126(3);
(vi.) the Defendant had not sought to conceal from the Council the fact that the two trees had been removed;
(vii.) the Defendant was willing to be personally involved and associated in the Council’s public awareness campaign for the preservation of existing trees within the City;
(viii.) the Defendant’s liability for the offence did not involve any contumacious or deliberate wrongdoing on his part—rather he had been held liable on the basis of the strict liability imposed upon “the person implementing a development consent” to ensure that relevant conditions of consent are observed and fulfilled, that was established by the recent decision of the Court of Criminal Appeal in Rao v Canterbury City Council (2000) NSWCCA 471 (where judgment was handed down after the present case had been concluded and while judgment was reserved);
(ix.) in view of all the foregoing factors, the Court could reasonably conclude that there was no need for there to be any personal deterrence of the Defendant who had learned a salutary experience by virtue of this litigation—and in view of the relatively un-serious nature of the offence, it would be disproportionate to impose a penalty in quest of any notion of public deterrence.

12. In advancing this ultimate submission, Defence Counsel expressly conceded that the favourable exercise of the discretion under s 10 of the Crimes (Sentencing Procedure) Act 1999 depended upon the Court’s finding that the Defendant was not “personally responsible” for the offence except upon the extended “strict liability” basis established by the Court of Criminal Appeal’s decision in Rao.

13. In view of this express concession made by Defence Counsel, I repeat here the following passages from my earlier judgment which encapsulate my findings as to the basis upon which I found the Defendant to be criminally responsible for the offence charged—
37. On the basis of the abovementioned facts, I am satisfied beyond reasonable doubt that the Defendant is criminally responsible for the offence charged inasmuch as it is established beyond reasonable doubt that (i) he was the person who obtained development consent; (ii) he was a co-director with his brother of the building company undertaking the development; (iii) he was relevantly engaged in carrying out the approved development; (iv) when, in the course of that development activity, the two trees located in the south-eastern corner of the development site were cut down and/or removed in contravention of condition 40. My ultimate conclusion of the Defendant’s criminal responsibility for the offence charged is directly supported by the holdings of the Court of Criminal Appeal in Rao to the effect that (i) the offence charged imposes strict liability; and (ii) criminal liability is attracted by the person who implements the development consent (eg by carrying out the approved development or commencing to carry it out) otherwise than in accordance with the relevant conditions of consent.
38. Accordingly, on the authority of the decision in Rao, it is not necessary in my opinion, for the Prosecution in the present case to establish that the Defendant either (i) personally contravened condition 40 by failing to retain the nominated trees or (ii) gave instructions to an employee or contractor to cut down and/or remove the trees, thereby creating the result that condition 40 was contravened (because the nominated trees were not retained).
39. However, if the decision in Rao be put aside for the moment merely for the purposes of argument, and if it be accordingly assumed that the Prosecution must prove against the Defendant, direct or accessorial involvement in the contravening conduct or alternatively must prove that he was vicariously responsible for the actions of his employees or contractors, the evidence that I have summarised above, together with the evidence of the Defendant and of his brother (which I shall presently briefly mention) satisfies me beyond reasonable doubt that the Defendant is criminally responsible for the contravening conduct.
40. I need only refer to those parts of the evidence of the Defendant which is corroborated by the testimony of his brother) that it was the Defendant (i) who hired the demolition contractor; (ii) who was responsible for on-site activities (including the clearing of the land) on the development site; and (iii) who gave the demolition contractor instructions.
41. When this evidence is combined with the admissions that were made by the Defendant in his conversation on 19 April 2000 with Ms Morgan that he was on site with the demolition contractor, giving him instructions on the basis of the content of the approved plans (Exhibit 2), which plans contained notations for the removal of all four existing trees located in, or a little removed from, the south-eastern corner of the development site, it is clear beyond reasonable doubt, in my judgment, that it was the Defendant who was directing, and who was therefore responsible for, the works that were being carried out on the development site, in implementation of the development consent.
42. I have earlier stated why I ultimately found the Defendant’s evidence on the question of when the contravening conduct was committed, to be confusing, unconvincing and unreliable. I have reached the same conclusion in respect of the Defendant’s testimony on the question of the identity of the person(s) who cut down and/or removed the two trees located in the south-eastern corner of the development site which had been nominated by condition 40 for retention. In this respect too, I find Ms Morgan’s evidence of the admissions made by the Defendant to be credible and reliable and acceptable. Of course, in a fundamental sense, the identity of the person who cut down and/or removed the relevant trees is irrelevant to proof of the offence charged against the Defendant. As I have earlier held, that charge is established by proof that the person charged implemented the development consent by carrying out the development otherwise than in accordance with the conditions of consent: Rao.

14. It is apparent from these passages that the primary basis upon which I found the Defendant to be criminally responsible was the “extended strict liability” established by the decision in Rao.

15. However, it is equally clear from par 39 at seq that I also found the Defendant to be criminally responsible for the offence either “directly or accessorily”.

16. Once the dual bases for my findings of the Defendant’s guilt are truly appreciated, I think the concession made by Defence Counsel comes into play.

17. But assuming that the Defence’s ultimate submission were persisted with, it is necessary to have regard to the express provisions of the Crimes (Sentencing Procedure) Act 1999, s 10(2) and s 10(3) in order to determine whether an order pursuant to s 10(1)(b) for the conditional discharge of the Defendant is justified.

18. Subsections (2) and (3) provide as follows:
(2) An order referred to in subsection (1)(b) may be made if the court is satisfied:
(a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or
(b) that it is expedient to release the person on a good behaviour bond.
(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.

19. I go at once to the considerations enumerated in subsection (3) which logically precede the considerations enumerated in subsection (2).

20. Paragraph (a) operates in favour of the Defendant insofar as his character and antecedents are well attested by the character references as being good.

21. Paragraph (b) operates against the Defendant. In view of the objective nature of the offence and the maximum penalty prescribed for it (relevantly $110,000) and having regard to the earlier mentioned observations made by this Court and the Court of Appeal in respect of the seriousness of similar offences, it is not reasonably possible to conclude that the offence is trivial. Assuming, as I do, that paragraph (b) is also directing attention to the subjective culpability of the Defendant in committing the offence (as to which see my findings in relation to par (c) and par (d)), I am not prepared to find the nature of the offence to be “trivial”.

22. Paragraph (c) operates against the Defendant, for even accepting the Defence submission that there was some confusion in the approved plans, the confusion was readily solvable by reference to a careful consideration of the conditions of consent. I accept, as is implied in my earlier judgment, that the Defendant, when directing the demolition contractor probably was working from the approved plans which contained notations which were set aside by the relevant condition of development consent requiring the retention of two of the annotated trees. However, this slip or mistake or accident (which I am prepared to assume in favour of the Defendant) was readily avoidable if the Defendant had referred to the terms of the development consent, which plainly imposed conditions having the effect of modifying the proposal as shown on the development plans. Since the Defendant is an experienced developer with some 30 years experience, his failure to properly instruct the demolition contractor on the basis of the true requirements of the development consent was either a gross oversight or gross error of judgment or bespoke negligence bordering on carelessness on the part of the Defendant. In short, there are no relevant extenuating circumstances in which this offence was committed by the Defendant.

23. Paragraph (d) operates against the Defendant insofar as he asks the Court to excuse a significant lapse of care on his part as a developer with 30 years experience in the industry, in the manner in which he instructed the demolition contractor. For the Court to excuse such a lapse would be apt to give the wrong message to developers and inevitably encourage a laxity of compliance with their obligations imposed as conditions of development consent.

24. Moreover, there is the consideration of the general deterrent effect of sentencing in the criminal law so that the community is properly educated in the laws demands, to the proper end that the law will come to be generally known and obeyed. However, care must be taken to avoid imposing upon an individual offender an unfair burden of community education cf Walden v Hensler (1987) 163 CLR 561 at 569/570 per Brennan J.

25. In the present case, the Court is entitled to assume that experienced developers will know that when carrying out approved development, they must comply with relevant conditions of the development consent. Likewise, the Defendant clearly must be taken to have understood his obligations as an experienced developer to carry out the approved development in accordance with the conditions of consent.

26. Having regard to my findings in relation to the matters enumerated in the Crimes (Sentencing Procedure) Act 1999, s 10(3), I am of the opinion that the Defendant has not made good his case for his conditional discharge, even if my finding of his guilt had been confined to the basis of the extended strict liability established by the decision in Rao.

27. In Cooper, where the Court of Criminal Appeal determined for itself the ultimate issue and found the amended charge to be proved beyond reasonable doubt, the Court was asked to record no conviction by applying the provisions of the Crimes Act 1900, s 556A.

28. In rejecting such an appeal, Howie AJ, on behalf of the Court said:

It has been submitted that no conviction should be recorded by applying the provisions of s 556A of the Crimes Act 1900 (NSW). I do not believe that course would be appropriate notwithstanding the good character of the appellant. The offence is not a trivial or technical one and there is nothing in the circumstances in which it was committed which justifies dealing with it in that way. There is no matter that I can discern which would justify the Court in declining to convict and punish the appellant for the offence. There must be an element of general deterrence in dealing with significant breaches of the planning laws.

29. My analysis of the relevant considerations enumerated in the Crimes (Sentencing Procedure) Act 1999, s 10(3) has proceeded upon similar lines of reasoning producing a similar result to that reached in Cooper.

C. THE APPROPRIATE SENTENCE

30. In my judgment, the present case calls for conviction and sentence having regard to all of the circumstances that I have earlier outlined concerning the objective gravity of the offence and the Defendant’s criminal and moral responsibility in the commission of the offence.

31. In Calleiga, Lloyd J made the following relevant observations on sentencing at 367—

The penalties imposed by this Court for offences such as this have varied considerably and are largely dependent on the particular circumstances of the offence. Those penalties generally range from no financial penalty to $15,000. A common fine is between $10,000 and $15,000. Talbot J in Power v Coopers Construction Pty Ltd and Power v Cooper effectively fined the defendant in those proceedings $15,000, although the Court of Criminal Appeal in Cooper v Coffs Harbour City Council reduced that fine to $5,000. It is instructive to note that the latter court in reducing the penalty did so because of the less serious nature of the charge which was before it (at 143). It said nothing of the appropriateness of the penalty issued by Talbot J on the facts before him.

32. In Rao, Pearlman CJ as the trial judge had imposed a fine of $3,000 for the first offence similar to the offence charged in the present case and a fine of $1,500 for a second related offence.

33. The facts of the present case are closer to the facts of Rao than they are to the other cases referred to in Calleiga.

34. In the circumstances, a consistent sentencing approach to offences such as the one involved in the present case suggests that a fine of $5,000 is the appropriate fine to impose in the present case. This fine reflects the mitigating factors raised by Defence Counsel.

D. CONCLUSIONS AND ORDERS

35. For all the foregoing reasons, I propose to record a conviction against the Defendant and to impose a fine of $5,000.

36. The Defendant has agreed to pay the Prosecutor’s reasonable costs.

37. Accordingly, I make the following orders

1. The Defendant is convicted of the offence charged.

2. A fine of $5,000 is imposed in respect of that conviction.

3. The Defendant is ordered to pay the Prosecutor’s reasonable costs in the sum agreed, or failing agreement, as may be determined in accordance with the Land and Environment Court Act 1979, s 52(2).

4. Exhibits to be returned.