Cumberland Council v Badaoui Habib

[2017] NSWLEC 18

Land and Environment Court

New South Wales

Medium Neutral Citation:	Cumberland Council v Badaoui Habib [2017] NSWLEC 18
Hearing dates:	14 February 2017
Date of orders:	02 March 2017
Decision date:	02 March 2017
Jurisdiction:	Class 5
Before:	Robson J
Decision:	See orders at [54]
Catchwords:	ENVIRONMENTAL OFFENCES – development without consent – guilty pleas – sentencing principles – discount to be applied – totality principle – fines imposed and costs ordered
Legislation Cited:	Crimes (Sentencing Procedure) Act 1990 (NSW) ss 3A, 21A Environmental Planning and Assessment Act 1979 (NSW) ss 5, 76A, 125 Fines Act 1996 (NSW) ss 6, 7
Cases Cited:	Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 Blue Mountains City Council v Carlon [2008] NSWLEC 296 Burwood Council v Pratelli [2014] NSWLEC 28 Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Canterbury-Bankstown Council v Naji [2016] NSWLEC 101 Environment Protection Authority v Complete Asbestos Removal Pty [2016] NSWLEC 167 Environmental Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Menai and Burwood Council v Doueihi [2013] NSWLEC 196; (2013) 200 LGERA 152 Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 North Sydney Council v Perini (No 2) [2013] NSWLEC 91 Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 R v O’Neill [1979] 2 NSWLR 582 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 Secretary Department of Planning and Environment v Boggabri Coal Pty Limited [2014] NSWLEC 154 Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 Veen v The Queen (No 2) (1998) 164 CLR 465; [1988] HCA 14
Category:	Sentence
Parties:	Cumberland Council (Prosecutor) Badaoui Habib (Defendant)
Representation:	Counsel: M F Fozzard (Prosecutor) A M Pickles SC with N Hammond (Defendant)   Solicitors: Bilias & Associates (Prosecutor) Greenaway & Tohme Solicitors (Defendant)
File Number(s):	2016/00264661; 2016/00264680
Publication restriction:	No

Judgment

1. The defendant, Mr Badaoui Habib, has pleaded guilty to the commission of two offences under s 125(1) of the Environmental Planning and Assessment Act 1979 (NSW) (‘EPA Act’) that, contrary to s 76A of the EPA Act, he carried out unauthorised building works.

2. Each offence involved the following work being undertaken between September 2015 and May 2016 on each of two adjoining lots (Lot 23 and Lot 24) situated at 55 Cecil Street, Guildford:

1. the construction of a detached two-storey dwelling containing a garage with a roller door, kitchen, laundry, five bedrooms and living areas; and

2. the construction of a detached granny flat containing a kitchen, two bedrooms, a bathroom and a laundry

3. (collectively ‘Developments’).

3. Each offence is one of strict liability and mens rea is not an element of the offence. As the defendant has pleaded guilty he has admitted the essential elements of the offence per R v O’Neill [1979] 2 NSWLR 582 at 588.

4. Having regard to the objective seriousness of the offences and the subjective circumstances of the Defendant, I consider that the appropriate sentence is to fine the defendant $52,500 for each offence, after applying a 25% discount, amounting to a total fine of $105,000. The defendant must also pay the prosecutor’s costs for both prosecutions, as agreed in the sum of $24,000.

Legislative framework

5. The EPA Act provides:

76A   Development that needs consent

(1) General

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.

(2) For the purposes of subsection (1), development consent may be obtained:

(a)  by the making of a determination by a consent authority to grant development consent, or

(b)  in the case of complying development, by the issue of a complying development certificate.

...

125   Offences against this Act and the regulations

(1) Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Secretary, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act.

…

Statement of Agreed Facts

6. For each of the charges the parties agreed a separate statement of facts in almost identical terms, except for separate definitions of the lots (Exhibit 1 and Exhibit 2 with some corrections noted on the transcript). Relevant sections are extracted as follows (footnotes and annexures are omitted):

Introduction

1    That between 6 September 2015 and continuing up until 12 May 2016, the defendant did carry out development on Lot 23 in DP 3088 to which an environmental planning instrument applied being development which pursuant to the environmental planning instrument may not be carried out except with development consent where a development consent had not been obtained and was not in force.

The Land

2   The property at 55 Cecil Street, Guildford [contains] two lots, Lot 23 and Lot 24 in DP 3088 (‘the Land’).

3   The Land at which the development took place was Lot 23 Sec 8 DP 3088 otherwise known as 55 Cecil Street, Guildford, hereafter referred to as "Lot 23".

4   Lot 23 and Lot 24 [are] within the authority of Cumberland Council.

5   Cumberland Council (‘the Council’) subsumed Holroyd City Council as a consequence of the Local Government (City of Parramatta and Cumberland) Proclamation 2016.

6   The Holroyd Local Environmental Plan 2010 ("the LEP"), being an environmental planning instrument, applied to Lot 23 and Lot 24 at the date of the offence, is still in force, and continues to apply to Lot 23 and Lot 24.

7   Lot 23 and Lot 24 are zoned R2 Low Density Residential in the LEP.

8   Lot 23 and Lot 24 are located on the western side of Cecil Street, Guildford, and Lot 23 is located on the southern side of Lot 24.

9   Lot 23 and Lot 24 are owned by Hanna Habib (‘the owner’).

10   Development for the purpose of a dwelling house is permissible with consent in the R2 Low Density Residential zone pursuant to the Land Use Table in the LEP.

11   Development for the purpose of a Granny flat is permissible with consent in the R2 Low Density Residential zone pursuant to the Land Use Table in the LEP.

12   The development on Lot 23 and the Development on Lot 24 are not exempt development for the purposes of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.

The Development on Lot 23

13   The Development carried out by the defendant on Lot 23 comprise the following:

(a) The construction of a detached two storey dwelling containing a garage with a roller door, kitchen, laundry, five (5) bedrooms and living areas (‘the Lot 23 Dwelling’);

(b)   The Construction of a detached granny flat containing a kitchen, two (2) bedrooms, a bathroom and laundry (‘the Lot 23 Granny flat’);

14   The Lot 23 Dwelling is approximately 250sqm in size.

…

The Defendant

16   The defendant is the brother of the owner.

17   The defendant, his servants and agents carried out the development on the Land.

18   The defendant admitted to the Council that he knew he did not possess or had not yet obtained approval to carry out the development.

19   The defendant was advised on or about March 2015 by a licensed builder that before he could carry out building works for the defendant he would need to obtain ‘Home Warranty Insurance’ that he did not have at that time.

20   Sometime thereafter, on or about November 2015, the defendant approached the builder again and asked if he had insurance. The builder advised the defendant that he needed to find a certifier to fix things up.

21   The defendant […] had done previous developments and was aware that he required approval.

…

23   The owner left it to the defendant to obtain the necessary approvals.

24   The defendant spoke to a builder before he commenced building works, but the paper work was taking too long so he went ahead and commenced building works.

The Facts

25   On 19 March 2015, Dvyne Design Architecturals made a development application for the “demolition of all existing structures” on Lot 23 and Lot 24 (‘the DA’).

26   On 26 March 2015, the DA was approved and a development consent was granted, subject to conditions (‘the demolition consent’).

27   On 7 September 2015, the Council undertook an inspection and confirmed that all work pertaining to the demolition consent was carried out satisfactorily.

28 On 7 October 2015, the Council granted an approval under section 68 of the Local Government Act 1993 for stormwater connection to the Lot 23 and Lot 24.

29   On 12 May 2016, Mr Bradley Ferguson attended the Land to conduct an inspection. At that time he met with a person, the defendant, at the front door of the dwelling constructed upon Lot 23 at 55 Cecil Street, and had a conversation with him:

Mr Ferguson said “Council has had a report that these houses have been constructed without any form of approval. Do you mind if I have a look?”

The defendant said “No of course not, come in.”

30   During the inspection, Mr Ferguson made observations of the development on the Land and took photographs. Mr Ferguson observed that

31   Lot 23 was being occupied by the defendant and his family. The Lot 24 building contained a garage with a roller door, kitchen, laundry, five (5) rooms that appeared to be bedrooms and living areas. The Lot 24 granny flat contained a kitchen two (2) bedrooms a bathroom and laundry.

…

33   Mr Ferguson then returned to Council’s Office and conducted a search of Council’s records, and could find no development consent for a new dwelling structure and/or granny flat upon Lot 23 and Lot 24. In addition, there are no records of Council receiving any Complying Development Certificate.

…

41   Mr Ferguson then reviewed the plans and these appear to reflect the layout and configuration of the buildings he inspected on 12 May 2016.

42   On 25 May 2016, Mr Ferguson spoke with both the owner and the defendant in Council’s offices. The owner stated that his brother, the defendant is the builder for the development. The defendant made admissions that he did not have any approval to carry out the development and [that] he organised the development.

43   Building Certificate No. 2016/96 was received by Council on 15/12/16 and is currently being assessed.

44   Development Application No. 2016/590 was received by Council on 21/12/16 and is currently being assessed.

Additional evidence

Prosecutor’s evidence

7. The prosecutor read the affidavit of Bradley Glen Ferguson (the prosecutor’s Development Compliance Officer) sworn 19 August 2016 and tendered Exhibit CC-1 to the affidavit, which became Exhibit 4. Exhibit 4 contains, amongst other items, a transcript of a conversation referred to at paragraph 42 of Exhibit 1 and Exhibit 2. I have extracted relevant sections of this transcript below:

Brad Ferguson: So again I’ll ask you, so you were aware, because you’ve done previous developments, that you required approval?

Bob Habib: Yep.

…

Brad Ferguson: No, I understand. The approval for the development at 55 Cecil street at Guildford, you were aware you needed approval, did you go to anyone to get that approval?

Bob Habib: Well yes, that’s why I ask.

Brad Ferguson: You went to a builder?

Bob Habib: Yes. We went to Jason, the builder.

Brad Ferguson: And what did Jason tell you to do?

Bob Habib: Jason, he tell me that yes he can be the builder but issues with paperwork and license expired but they were taking too long and then we start.

…

Brad Ferguson: Ok so are you aware that a builder cannot give approval for a development, a builder can only build, he doesn’t give the approval, are you aware of that?

Bob Habib: Yes.

…

Brad Ferguson: So you thought you were getting approval?Bob Habib: Exactly.

Brad Ferguson: Ok. At any stage during the construction, did you speak with Jason or Jack Tannous and that they told you that you don’t have approval?

Bob Habib: Almost every week, every days after days I’ll ask Jack and when Jack told me please see Jason, please make sure the paperwork. It is.

Brad Ferguson: Ok.

Bob Habib: Every week… (Inaudible) …. And I don’t know, we make mistake, I say I make mistake, yes.

Brad Ferguson: Ok. So your mistake was not making sure you had approval?

Bob Habib: Exactly. We not sure.

…

Defendant’s evidence

8. The defendant’s affidavit sworn 3 February 2017 was read. He stated that he began digging the footings for the Developments in September 2015 as he was frustrated with the delay in Mr Jason Gebrael (a builder that the defendant sought to engage) obtaining Home Owner’s Warranty Insurance. The defendant attested that he then went on to complete the Developments with the assistance of subcontractors.

9. The defendant noted that while he had a general understanding of the planning laws in New South Wales, he was “not aware of the seriousness of doing work without the main approval in place”. The defendant attested that he was under the impression that other parties were arranging to obtain the necessary approvals. The defendant stated that he spoke to Mr Jack Tannous (a building designer engaged by the defendant) in January 2016, who told him:

You are in a lot of trouble. You have done the work without getting development consent. You will need to go back to the council to fix the problem. I will speak to Council.

10. The defendant moved into one of the completed dwellings on Lot 23 with his family in March 2016.

11. At [41] of the defendant’s affidavit, he states:

I sincerely apologise for the offence that I committed and I accept full responsibility. I now understand that I should not have commenced any work on the Property until Council had granted development consent or a complying development certificate, and I had obtained a construction certificate.

Purposes of sentencing

12. The offence charged is a strict liability offence, meaning that the defendant need not have intended to commit the offence to incur liability. Section 3A of the Crimes (Sentencing Procedure) Act 1990 (NSW) (‘CSP Act’) identifies the purposes of sentencing. It states:

3A   Purposes of sentencing

The purposes for which a court may impose a sentence on an offender are as follows:

(a)   to ensure that the offender is adequately punished for the offence,

(b)   to prevent crime by deterring the offender and other persons from committing similar offences,

(c)   to protect the community from the offender,

(d)   to promote the rehabilitation of the offender,

(e)   to make the offender accountable for his or her actions,

(f)    to denounce the conduct of the offender,

(g)   to recognise the harm done to the victim of the crime and the community.

13. Section 21A of the CSP Act identifies a number of considerations that a court must take into account when sentencing, including in relation to aggravating factors (s 21A(2)) and mitigating factors (s 21A(3)).

Objective circumstances

14. Factors relevant to determining the objective gravity of an offence under the EPA Act were identified in Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [163] and Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [110] (‘Gittany’). These factors include the nature of the offence, the reasons for the commission of the offence and the state of mind of the offender. It is also necessary to consider the environmental harm caused and the defendant’s control over the causes of the harm. Further, the court may take into account the statutory scheme which establishes the offence: see Blue Mountains City Council v Carlon [2008] NSWLEC 296 at [48], Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89 at [35].

The nature of the offence

15. Given that this case centres around development works, a key consideration for this Court to take into account is the need to uphold the statutory scheme for orderly planning in NSW, provided for in the EPA Act: see e.g. Canterbury-Bankstown Council v Naji [2016] NSWLEC 101; Menai and Burwood Council v Doueihi [2013] NSWLEC 196; (2013) 200 LGERA 152. As noted by Preston CJ of LEC in Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 at [46]:

There is a need for the upholding of the integrity of the system of planning and development control. This system depends on persons taking steps to obey the law by ascertaining when development consent is required and then obtaining development consent before carrying out development: Byron Shire Council v Fletcher (2005) 143 LGERA 155 at [60]-[61]; Cameron v Eurobodalla Shire Council at [72]-[80]; Byers v Leichhardt Municipal Council [2006] NSWLEC 82 at [83], [85]; Gittany Constructions Pty Ltd v Sutherland Shire Council at [104]; and Garrett v Freeman (No 5) (2009) 164 LGERA 287 at [58]. Development must be carried out in accordance with the terms of the development consent obtained: Gittany Constructions Pty Ltd v Sutherland Shire Council at [105].

16. In considering the statutory scheme for orderly planning in NSW it is instructive to have regard to the objects of the EPA Act as outlined in s 5:

5   Objects

The objects of this Act are:

(a)   to encourage:

(i)   the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment,

(ii)   the promotion and co-ordination of the orderly and economic use and development of land,

…

(vi)   the protection of the environment, including the protection and conservation of native animals and plants, including threatened species, populations and ecological communities, and their habitats, and

…

17. Planning approvals are one means by which the State government seeks to achieve these objects, and to ensure the efficient and sustainable development of New South Wales. These approvals are central to maintaining the integrity of the NSW planning system, and this informs the consideration and assessment of the seriousness of an offence. Offences which undermine the integrity of the regulatory scheme are objectively serious, see Secretary Department of Planning and Environment v Boggabri Coal Pty Limited [2014] NSWLEC 154 at [19].

18. In this case, the prosecutor submitted that the offences reflect a “major flaunting” of the NSW planning scheme, as the defendant’s actions were self-serving and were conducted without any regard to the proper approval process. To support this submission, the prosecutor claimed that the offences were committed in circumstances where the defendant was aware that he needed approval, as he had previous experience with development works and the steps required to gain approval, and indeed the defendant had obtained the authority of the owner to lodge a development application.

19. The objective seriousness of the offences are further aggravated, according to the prosecutor, by the fact that the Developments were significant – comprising of two two-storey dwelling houses and two detached granny flats. I accept this submission and find that the defendant’s conduct objectively amounts to a serious infringement which undermines the integrity of the planning regulatory scheme.

Maximum penalty

20. Also relevant is the maximum penalty that is able to be imposed for the offence, as this reflects the seriousness of the offence, see Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 257 at 372. In this case the offences charged are Tier 2 offences under the EPA Act, meaning that the maximum penalty at the date of the offences was $500,000 for each offence.

Environmental harm

21. The prosecutor did not press the matter of environmental harm. The defendant submitted that there was no environmental harm in the sense of actual or physical harm, but rather that the harm caused by the offence went to the integrity of the planning scheme, which the defendant submitted lies at the lowest end of the spectrum of environmental harm. I accept the submission subject to matters noted above that the seriousness of the offence is informed by the conduct which flouts the planning regime.

Control over causes

22. The defendant submitted that he relied on others to obtain the necessary approvals for the developments, and therefore did not have control over the causes of the offences. The prosecutor disputed this, submitting instead that the defendant was aware that he needed development consent, knew that he did not have the necessary approvals, and yet continued with the Developments nonetheless. It is clear, and I find that the defendant was aware of the need to obtain development consent. Even if he considered that he could at least commence the work without development consent, he continued to complete these significant developments knowing that he did not have the requisite approvals.

Defendant’s state of mind and reasons for committing the offence

23. In determining the appropriate penalty for an offence, it is relevant to consider the defendant’s reasons for committing the offence, see Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366. A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one not so committed, see Gittany at [123]. Pursuant to s 21A(2)(o) of the CSP Act, it is an aggravating factor if the offence was committed for financial gain. This was initially raised by the prosecutor, but later abandoned. I accept that the offences were not committed for financial gain.

24. The prosecutor noted in oral submissions that the defendant was told in December 2015, after he had commenced the development works, that he would need to “fix things up”, yet despite these warning signs the defendant continued with the development works. Accordingly, the prosecutor submitted that the offences were premeditated, committed intentionally and were planned, controlled and coordinated. The prosecutor further submitted that the defendant’s reasons for committing the offences, which the prosecutor stated were frustration with the delay and a reliance on others, were insufficient and did not mitigate the seriousness of the offences.

25. The defendant accepted that the reason for his commencing work on the Developments was frustration, however claimed that this frustration was directed at the delay in obtaining Home Owner’s Warranty insurance. The defendant contested the prosecutor’s submissions, submitting that while he knew that he needed approval to carry out the Developments, he did not know that the approval needed to be in place before commencing the development works altogether. Rather, the defendant claimed that he relied on conversations with others (including a building designer and building certifier), and was under the impression that the approvals required were Home Owner’s Warranty insurance, driveway crossover and an approval under s 68 of the Local Government Act1993 (NSW).

26. In response to the prosecutor’s submission that the defendant had previously undertaken development work and therefore was aware of the need to obtain development consent, the defendant submitted that the approval process that he underwent in respect of the earlier developments was different from the process required in the present case, and therefore it cannot be said that the defendant had experience with the particular planning approval process relevant to the present development works. In summary, the defendant submits that he suffered from a misunderstanding as to the planning approvals necessary to commence development works, and that he was not aware of the seriousness of commencing works before obtaining the main development approval.

27. In relation to intent to commit the offences, the defendant accepts that from January 2016 he became aware of the requirement to have a development consent before continuing with the development works. While the defendant therefore accepts that intent was present as of January 2016 to when the works were completed in May 2016, the defendant submitted that this goes to an intention to complete the works once commenced, rather than an intention to commence works in breach of the planning laws.

28. I accept the prosecutor’s submissions and find that, although there may have been some doubt early in the building programme, there is no doubt that the defendant continued to build and complete two substantial developments while knowing that appropriate approvals had not been given. It is significant that the defendant, irrespective of the circumstances at the commencement of the work, completed the building works in the knowledge that the requisite development consent had not been obtained.

Conclusion on objective seriousness

29. Weighing up these various factors, I consider the offences to be of moderate seriousness.

Subjective factors

30. Section 21A(3) of the CSP Act identifies some of the relevant mitigating factors as follows:

(3) Mitigating factors

The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

(a)   the injury, emotional harm, loss or damage caused by the offence was not substantial,

…

(e)   the offender does not have any record (or any significant record) of previous convictions,

(f)    the offender was a person of good character,

(g)   the offender is unlikely to re-offend,

(h)   the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise,

(i)    the remorse shown by the offender for the offence, but only if:

(i)    the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii)   the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),

(j)    the offender was not fully aware of the consequences of his or her actions because of the offender’s age or any disability,

(k)   a plea of guilty by the offender (as provided by section 22),

…

(m)  assistance by the offender to law enforcement authorities (as provided by section 23).

Prior record and good character of the defendant

31. The defendant has no prior convictions. I am satisfied that the defendant is otherwise of good character.

32. The defendant has submitted that it is highly unlikely that he will re-offend, as he now understands that development consent must be obtained prior to commencing any building works.

Remorse and contrition

33. The defendant stated in his affidavit that he apologised for the offences committed and accepted full responsibility. The prosecutor noted that the defendant had offered an apology, however, relying on North Sydney Council v Perini (No 2) [2013] NSWLEC 91 at [172] (‘Perini’), submitted that the apology was not genuine as the defendant tethered his apology to the premise that he only understood the NSW planning process after he had been charged, which the prosecutor submitted was against the weight of the evidence provided.

34. I have considered both positions and whilst I take the defendant’s statements into account, I cannot give them full weight. In the case of Perini, Pepper J found at [172] that the defendant’s remorse was not genuine as it “was tethered primarily to the stress and strain that the proceedings had caused him financially and emotionally”. While there is no indication that the defendant in this case has ‘tethered’ his remorse to strain caused by these proceedings, it is nevertheless difficult to accept that the defendant’s remorse is directed at the offences committed and not the fact that he was caught. The fact that the defendant continued with the development works after having been told explicitly in January 2016 that he was required to obtain development consent lends credence to this position.

Early plea of guilty

35. In circumstances where the defendant enters a plea of guilty, ss 21A(3)(k) and 22 of the CSP Act provide that the court may impose a lesser penalty than it would otherwise have imposed. The guideline judgement of the New South Wales Court of Criminal Appeal in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 sets out the appropriate discount as being in the order of 10% to 25%. In this case, the defendant pleaded guilty at the first practical opportunity and it is submitted that the defendant is entitled to the maximum discount of 25%. I accept this submission.

Assistance to authorities

36. The prosecutor accepted that the defendant has cooperated fully with the investigation the subject of these proceedings. The defendant’s cooperation is to his credit.

Deterrence

37. Deterrence is an important consideration in sentencing for environmental offences. As stated by Mahoney JA in Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359:

The quantum of the fines which the legislation allows to be imposed has no doubt been fixed not merely to indicate the seriousness with which such pollution is regarded but to deter those engaged in such activities and to procure that they will take the precautions necessary to ensure that it does not occur.

…

The legislation does not seek merely to prevent deliberate or negligent pollution. It envisages that, at least in many cases, proper precautions must be taken to ensure pollution does not occur.

38. A key purpose of deterrence is to ward against others committing similar offences on the assumption that they will be ‘let off’ with a light punishment, see Environmental Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 at [228].

39. As identified in s 3A of the CSP Act, the Court serves an important deterrent purpose when imposing a sentence, both in the sense of deterring future wrongdoing committed by the offender and deterring wrongdoing by the general public. The converse would lead to a situation in which people would flout laws expecting that, if caught, their punishment would not be too severe (in other words that the benefit of committing the offence outweighs the costs).

40. Particularly in relation to offences such as the ones in this case, the Court plays an important role in ensuring the integrity of the planning system and in punishing those who transgress the stipulated procedures for development works, see Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 at [42]-[46]. The planning system operates to ensure that individual developments are considered in the scheme of developments around the State as a whole, are compliant with safety and other standards, and are properly maintained for both aesthetic and practical purposes. It is not in the public interest for persons to undertake building works, particularly significant works, without the relevant consent.

41. The prosecution submitted that this case concerns both general and specific deterrence, as the defendant must be discouraged against similar conduct in the future. The defence accepted that there is a need for general deterrence for a case of this nature, however submitted that it was unlikely the defendant would re-offend and therefore no need for specific deterrence.

42. Given the defendant’s early guilty plea, lack of prior convictions, good character, and the unlikelihood of him re-offending, I find the need for specific deterrence is comparatively low. I find that the need for general deterrence is particularly relevant in the present circumstances.

Consistency in sentencing

43. It is desirous that sentences for like offences are consistent, to ensure that the law is equally applied to all. The principle, being the principle of even-handedness, must however always be applied subject to the particular circumstances of the case before the court, as the penalty in each case reflects the circumstances of that particular case.

44. The parties have identified several cases that are instructive in determining the penalty in this case, although they noted that there have not been any cases with facts analogous to those in the present case. I have been referred to and have considered a number of decisions of this Court including: Canterbury-Bankstown Council v Naji [2016] NSWLEC 101 at [40]-[45]; Burwood Council v Pratelli [2014] NSWLEC 28; Perini at [188]-[202]; Gittany at [179]-[187]. In the interests of brevity I will not set out in detail the reasoning in those cases, however I have had regard to the analyses of comparable sentences imposed in those cases and the circumstances of the decisions themselves in determining the defendant’s penalty.

Totality

45. This case involves two offences being charged in relation to the same course of conduct. Accordingly, it is a matter to which the totality principle applies.

46. A useful summary of this principle is provided in Gittany by Preston CJ of LEC:

[196] The totality principle is a principle of sentencing which must be applied when sentencing an offender who has committed more than one offence. The court should consider questions of cumulation or concurrence as well as questions of totality. When reviewing the aggregate sentence, the Court must consider whether it is “just and appropriate” and reflects the total criminality before the court…

…

[198] To reflect the fact that a number of sentences are being imposed, an appropriate aggregate may be reached by either making sentences concurrent or lowering the individual sentences below what would otherwise be appropriate…

[199] In determining an appropriate aggregate sentence, the Court must consider the need to uphold public confidence in the administration of justice. If sentences are reduced substantially, offenders may view that they can escape punishment for successive deliberate discrete offences…

[200] In applying the totality principle, the Court must avoid determining a sentence that is disproportionate to the seriousness of the offence…The Court must first fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well as questions of totality… [references excluded]

47. In light of the above, I find it appropriate to impose a penalty upon the defendant in each matter which is appropriate in the circumstances, but which also takes into account the fact that the penalty relates to two offences arising out of the same course of conduct.

Prosecutor’s costs

48. The defendant has agreed to pay the prosecutor’s costs up to $24,000.

Steps to regularise the Developments

49. I take note of the fact, as stated in Exhibit 1 and Exhibit 2, that the defendant has submitted development applications and building certificates to attempt to regularise the Developments. I do not place significant weight on this conduct.

Finding on penalty

50. When sentencing, the Court must apply the instinctive synthesis approach by identifying all the relevant factors, considering the weight to be given to each, and making a value judgement as to the appropriate sentence in light of all the relevant factors, see Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 48. The sentence must reflect all the relevant objective circumstances of the offence and subjective circumstances of the defendant, see Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 at 490 and Veen v The Queen (No 2) (1998) 164 CLR 465; [1988] HCA 14 at 472-473, 490-491. The sentence should not go beyond what is “justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances”, per Veen v The Queen (No 2) at 472, 485 -486, 490-491, 496 and Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 at 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ).

51. Some evidence was put before the Court regarding the defendant’s limited financial circumstances. As required under s 6 of the Fines Act 1996 (NSW), I have taken the defendant’s capacity to pay a fine into account, and as a consequence the penalty that I will impose is considerably less than would have otherwise been the case.

52. Applying this approach and in the circumstances of the objective and subjective matters before me, I consider that a penalty of $70,000 reduced by 25% should be imposed for each offence, resulting in a total penalty of $105,000.

53. The Court makes the following orders and requests that the defendant make all the payments specified to the Land and Environment Court registry. Under the Fines Act 1996 (NSW) s 7, payment is required within 28 days. Under s 10 of the Fines Act 1996 (NSW), an application can be made to the Registrar of the Court for further time to pay.

Orders

54. The Court orders:

In matter 2016/00264661

(1)   The defendant is convicted of the offence as charged.

(2)   The defendant is fined in the sum of $52,500.

(3)   The defendant is to pay the prosecutor’s costs of the proceedings in the sum of $12,000.

(4)   The exhibits are returned.

In matter 2016/00264680

(1)   The defendant is convicted of the offence as charged.

(2)   The defendant is fined in the sum of $52,500.

(3)   The defendant is to pay the prosecutor’s costs of the proceedings in the sum of $12,000.

(4)   The exhibits are returned.

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Decision last updated: 06 March 2017