Council of the Municipality of Kiama v Micallef
[2009] NSWLEC 202
•25 November 2009
Land and Environment Court
of New South Wales
CITATION: Council of the Municipality of Kiama v Micallef [2009] NSWLEC 202 PARTIES: PROSECUTOR
DEFENDANT
Council of the Municipality of Kiama
Shannon Charles MicallefFILE NUMBER(S): 50041 of 2009 CORAM: Sheahan J KEY ISSUES: ENVIRONMENTAL OFFENCES :- early plea of guilty, building development work done without an operative consent, failure to comply with deferred commencement condition, sentencing principles, mitigating factors, application for section 10 discretion refused, prosecutor's costs. LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Crimes (Sentencing Procedure) Act 1999
Protection of the Environment Operations Act 1997CASES CITED: Director General, Department of Environment and Climate Change v Hudson [2009] NSWLEC 4; (2009) 165 LGERA 256;
Environment Protection Authority v Causmag Ore Co Pty Ltd [2009] NSWLEC 164
Minister for Planning v Fancott Pty Ltd [2009] NSWLEC 170
Municipality of Kiama v Furlong [2009] NSWLEC 139
North Sydney Council v Littllemore [2003] NSWLEC 336; (2003) 132 LGERA 116
R v Paris [2001] NSWCCA 83DATES OF HEARING: 25 November 2009 EX TEMPORE JUDGMENT DATE: 25 November 2009 LEGAL REPRESENTATIVES: PROSECUTOR
Mr P Moggach, Solicitor
SOLICITORS
RMB LawyersDEFENDANT
Mr R Beasley, Barrister
SOLICITORS
Mills Oakley Lawyers
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESSheahan J
25 November 2009
EXTEMPORE JUDGMENT50041 of 2009 COUNCIL OF THE MUNICIPALITY OF KIAMA v MICALLEF
1 His Honour: Pursuant to s76A and s125(1) of the Environmental Planning and Assessment Act 1979 (“EP&A Act”), Kiama Council has charged Mr Micallef with carrying out development at a residential block in Pacific Avenue, Werri Beach, Gerringong, without an operative development consent.
2 The defendant pleaded guilty when the matter first came before the court on 18 September 2009, and the court’s function today is to determine the appropriate penalty for this offence, the maximum penalty for which is $1.1 million.
3 The court must apply the sentencing principles in s3A of the Crimes (Sentencing Procedure) Act 1999, and take into account the matters in s21A of that Act and s241 of the Protection of the Environment Operations Act 1997. These provisions have been widely quoted and applied in this court, and I will not repeat now all that has been said about them before. See e.g. Director General, Department of Environment and Climate Change v Hudson [2009] NSWLEC 4; (2009) 165 LGERA 256, per Lloyd J; Environment Protection Authority v Causmag Ore Co Pty Ltd [2009] NSWLEC 164 per Pain J; and Minister for Planning v Fancott Pty Ltd [2009] NSWLEC 170 per Pepper J.
4 Both parties have also taken the court to Pain J’s recent decision in Council of the Municipality of Kiama v Furlong [2009] NSWLEC 139 (“Furlong”), as a guide to the appropriate range of penalty, and the prosecutor acknowledges that this offence is at the lower end of the scale. However, Mr Beasley, Counsel for the defendant, has asked the court to exercise its discretion under s10 of the Crimes (Sentencing Procedure) Act 1999 to dismiss the charge without proceeding to a conviction and/or imposing a penalty.
5 The relevant facts are largely agreed between the parties in a tendered statement which will remain in the court file (Exhibit K2). In short, Mr Micallef, a licensed carpenter, obtained (with his wife) consent to demolish and replace a dwelling house on the subject property, which they own, but he started work on the development without either satisfying Council regarding the deferred commencement condition, or obtaining a construction certificate.
6 The deferred commencement condition required:
- “ Submission to and approval by Council of an hydrologic and hydraulic analysis of the development from a suitably qualified professional in regard to the disposal of stormwater on site and prevention of ingress of subsurface water into the lower floor level. The evaluation and design shall be based on a geotechnical evaluation of the level of the ground water table on the development site .”
7 He obtained the geotechnical report, but not the hydrological report, and he did not submit anything technical to Council for its approval, nor ensure that his certifier obtained a construction certificate. In the end, Council was satisfied that there were no hydraulic problems, but the work was well underway before the relevant clearance was obtained in December 2008 (see the defendant’s affidavit at p20).
8 He immediately stopped construction when confronted by Council’s assertion of an offence. He attended an interview at which he was very frank, obviously truthful and helpful, and made relevant admissions (Exhibit K1, tab 21). He made appropriate applications to Council to regularise the completion and use of the house. Those applications proved non controversial, and were approved in a timely way by Council.
9 The particular issues facing the court today in this case are:
· the need for specific and/or general deterrence,
· the need to adequately punish the offender,
· the question of harm caused, including environmental harm,
· the offender’s state of mind, and his reason for committing the offence,
· the personal or subjective circumstances of the offender, and
· the practical measures available to avoid the harm.
10 Mr Micallef is 32, married with three young children, and currently employed as a solar pump distributor. He has sworn and filed a comprehensive affidavit in his defence, replete with personal particulars. His straitened financial position, as deposed, is also verified by bank and tax records (Exhibits M2 and M3).
11 In his affidavit he also expresses remorse for not taking more seriously the required detailed compliance with the condition. He asserts a misunderstanding of the requirements of the conditions of consent, and a series of misfortunes and misadventures regarding obtaining the construction certificate, but accepts full responsibility for the current situation.
12 I accept, as does the prosecutor, that there was simply “too much going on” in his family and working life at the relevant time, and that he was distracted from paying appropriate personal attention to his responsibilities regarding the consent and the house project.
13 The very high maximum fine in the legislation indicates the Parliament’s view of how important it is to comply with, and not undermine, the legislation regulating planning and development. That regime includes the sections on certification (s81A and s109E of the EP&A Act) to which the prosecutor drew particular attention. I am satisfied Mr Micallef is no stranger to this regime, and should have done better.
14 In mitigation I have taken into account Mr Micallef’s early plea, his cooperation with the prosecutor, his agreement to pay the prosecutor’s costs of $10,000, and his apparently clean environmental and criminal records. Also, Mr Micallef’s character referee, the estate agent Mr Paul Harrod (Exhibit M1) speaks very highly of him, both personally and professionally.
15 On the question of specific deterrence I have no concern that Mr Micallef is likely to offend in this way again, but, in terms of general deterrence, I emphasise that the public must be constantly reminded of the importance of observing, to the letter, the requirements of the State’s planning and development regime, and of the authorities that administer it.
16 I am not satisfied that Mr Micallef was motivated by financial gain. He was negligent, if not reckless, in his attention to the details of approvals obtained and required, but it is noteworthy that the quality of the works he did has not been criticised.
17 His breach is more than a technical one, later easily remedied, but some leniency is called for in all the circumstances of the case.
18 I have given close attention to the question of invoking s10 as requested by Mr Beasley.
19 Section s10(3) requires the court to have express regard to four listed factors, but not to the exclusion of any other circumstances of the case. It is not, however, necessary that the subject offence be characterised as “trivial” for the section to be invoked (s10(3)(b). R v Paris [2001] NSWCCA 83, per Simpson J at [42].
20 Despite what I have said, I cannot describe this offence as “trivial”, and I cannot bring myself to leave it without appropriate punishment by way of fine. I believe that s10 was appropriately invoked in North Sydney Council v Littllemore [2003] NSWLEC 336; (2003) 132 LGERA 116, but that it would not be appropriate here.
21 On the other hand I do not see this case as being as serious as Furlong, in which case Pain J imposed a nett fine of $11,000. Her Honour’s discount is not specified in the judgment.
22 I have arrived at a penalty of $12,000, which should be discounted by one-third for all the mitigating circumstances conceded by the prosecutor, and demonstrated to the court.
ORDERS
23 The orders of the court will, therefore, be:
1. The defendant is convicted of the offence charged in the summons.
2. The defendant is fined the sum of $8,000.
3. The defendant is ordered to pay the prosecutor’s costs agreed at $10,000.
4. All the exhibits are returned, except Exhibit K2 which will remain in the court’s file.
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