East Rex Road Property Pty Ltd v Hume City Council; Dimech v Hume City Council
[2023] VCC 1461
•11 August 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case Nos. AP-22-0531
AP-22-0532
| EAST REX ROAD PROPERTY PTY LTD | First Appellant |
| v | |
| HUME CITY COUNCIL | Respondent |
| and | |
| RAY DIMECH | Second Appellant |
| v | |
| HUME CITY COUNCIL | Respondent |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 March 2023 | |
DATE OF SENTENCE: | 11 August 2023 | |
CASE MAY BE CITED AS: | East Rex Road Property Pty Ltd v Hume City Council; Dimech v Hume City Council | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1461 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Appeals - Removal and destruction of native vegetation without planning permission – carrying out works on land without planning permission – s 126(2) Planning and Environment Act 1987 – Clause 52.17 Hume Planning Scheme – endangered species – Industrial zone – no planning overlay – commercial calculation – double punishment – totality – Company’s and Director’s duties and responsibilities – Current Sentencing Practice.
Legislation Cited: Environment Protection and Biodiversity Conservation Act 1999; Sentencing Act 1991; Planning and Environment Act 1987; Building Act 1993; Environment Protection Act 1970;
Cases Cited:Knox City Council v Tulcany Pty Ltd [2004] VSC 375; 160 Leicester Pty Ltd v City of Melbourne [2019] VCC 1430; Lewis and Anor v Mangano and Mangano [2015] VSC 592; DC Consolidated Investments Pty Ltd v Maroondah City Council [2011] VSC 634; Director of Public Prosecutions (DPP) V Aydin [2005] VSCA 86; Leichhardt Council v Geitonia Pty Ltd (No 7) [2015] NSWLEC 79; Markarian v R (2005) 228 CLR 357; Australian Competition and Consumer Commission v ABB Transmission and Distribution Limited (No 2) [2002] FCA 559; Van Egmond v City of Knox, Bassett & Ors (1985) 3 PABR 249.
Sentence: First Appellant – With conviction Charge 1 $85,000, charge 2 $40,000 and to pay costs of $30,000. Second Appellant – With conviction Charge 1 $70,000, charge 2 $30,000 and to pay costs of $30,000.
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APPEARANCES: | Counsel | Solicitors |
| For the First Appellant | Mr J Shaw | DSA Law |
| and the Second Appellant | ||
| For the Respondent | Mr A Woods | Maddocks Lawyers |
HIS HONOUR:
Introduction
1Between November 2019 and January 2020, significant native vegetation was removed, lopped, and destroyed on land situated a 272-276 Rex Road, Campbellfield (“the land”).
2In 2018, before the destruction of the native vegetation, ecologist and biologist Adrian Lamande, identified a 2.488 hectare patch of native vegetation and a small area of introduced vegetation, including many indigenous trees, growing on the land. The vegetation was described as woodland vegetation with a functioning ecosystem that provided habitat for a wide range of species. The area corresponded to the Plains Grassy Woodland Ecological Vegetation Class and met the description and condition thresholds of the Grassy Eucalypt Woodland of the Victorian Volcanic Plain, listed as critically endangered under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999.
3Mr Lamande found that the site represented “one of the larger remnant patches of Red Gum Grassy Woodland vegetation in the local area and is currently of moderate to high quality”.
4In a later report, prepared in 2020, Mr Lamande said that patches of eucalypt grassy woodland on the Victorian Volcanic Plain and within the Port Phillip/Westernport area are exceedingly rare. He said that in the nearly 15 years of working in the region, the patch of eucalypt grassy woodland referred to in his earlier study was one of, if not the best, examples of this vegetation type on the Victorian Volcanic Plain and within the Port Phillip and Westernport catchment management area.
Appeals AP-22-0531 and AP-22-0532
5These appeals are against sentences imposed by a Magistrate, sitting at the Heidelberg Magistrates’ Court on 4 May 2022, in respect of charges arising from the destruction of the native vegetation and the carrying out of works on the land without permits. Although the appellants appealed both their convictions and sentences, they have since abandoned any appeal against conviction.
6The first appellant, East Rex Road Property Pty Ltd (“the company”), became the registered proprietor and owner of the land on 27 November 2019.
7The second appellant, Ray Dimech, is a director and officer of the first appellant.
8Charge one, to which the first appellant pleaded guilty, is that it was the owner of the land which was developed by removing, destroying and/or lopping native vegetation between 27 November 2019 to 20 January 2020, in contravention of the Hume Planning Scheme (the “planning scheme”), in breach of s 126(2) of the Planning and Environment Act 1987 (the “Act”).
9Charge two, to which the first appellant also pleaded guilty, is that it was the owner of the land which was developed by carrying out works between 27 November 2019 to 20 January 2020, in contravention of the planning scheme, in breach of s 126(2) of the Act.
10Charge one, to which the second appellant pleaded guilty, is that he failed to exercise due diligence to prevent the commission of the offence by the company under s 126(2) of the Act, a body corporate of which the accused is an officer.
11Charge two, to which the second appellant also pleaded guilty, is that he failed to exercise due diligence to prevent the commission of the offence by the company under s 126(2) of the Act, a body corporate of which the accused is an officer.
12The land is located within the municipality of Hume City Council (“the Council”) and is subject to the Hume Planning Scheme.
13Under the planning scheme, the land is within the Industrial 1 Zone contained in clause 33.01. Clause 52.17 (Native Vegetation) of the planning scheme applies to the land.
14The planning scheme requires a planning permit to:
(i)construct a building or construct or carry out works - clause 33.01-4;
(ii)remove, destroy or lop native vegetation, including (some) dead native vegetation - clause 52.17-1.
15The purposes of clause 52.17 are set out in the planning scheme as follows:
To ensure that there is no net loss to biodiversity as a result of the removal, destruction or lopping of native vegetation. This is achieved by applying the following three-step approach in accordance with the guidelines for the removal, destruction or lopping of native vegetation (Department of Environment, Land, Water and Planning, 2017) (the guidelines):
1. avoid the removal, destruction or lopping of native vegetation;
2. minimise the impacts from the removal, destruction or lopping of native vegetation that cannot be avoided;
3. provide an offset to compensate for the biodiversity impact if a permit is granted to remove, destroy or lop native vegetation.
To manage the removal, destruction or lopping of native vegetation to minimise land and water degradation.
Circumstances of Offending
16On behalf of the company, Mr Dimech engaged a contractor, Charlie Kuru, to remove the vegetation from the land. Mr Kuru, in turn, engaged a sub-contractor to perform the work. The sub-contractor removed the vegetation on the land between 27 November 2019 and 20 January 2020. The work was done without a planning permit.
17Between those same dates, works were carried out on the land without a planning permit. The works included the alteration of the natural or existing condition or topography of the land by removal of topsoil and earth, and the piling and spreading of gravel for the purposes of creating a hardstand.
18The contractor, Mr Kuru, I was told, gave evidence at the Magistrates’ Court hearing to the effect that he spoke with a person by the name of “Stephanie” from the Council’s planning department. He asserted that he was told that the works and removal of native vegetation could be undertaken on the land without a planning permit. Mr Kuru also gave evidence that he told Mr Dimech and the sub-contractor of the advice he received from “Stephanie”. At the hearing before the learned Magistrate, Stephanie Osborne, a town planning officer employed by the Council at the relevant time, gave evidence that she did not recall having any such conversation with Mr Kuru.
19Mr Dimech did not himself contact the Council to determine whether a planning permit was required under the Planning Scheme.
20After the destruction and removal of the native vegetation, on 10 November 2020, the company applied to the Council for a planning permit to develop the land by constructing six warehouses and subdividing the land. The estimated cost of the development referred to in the permit application was $6.8 million. The Council refused the application, and the company has appealed the refusal to VCAT.
21Following the destruction and removal of the native vegetation from the land, in his 2020 report, Mr Lamande stated:
The current assessment observed no patches of native vegetation that could be recognised as Red Gum Grassy Woodland. A small area of indigenous grassy vegetation was identified on the study site, but all in all, it was considered that any patches of vegetation remaining were of low quality and diversity, and so fragmented that weed invasion posed a major limitation to their ongoing persistence.
All of the trees on the study site have been removed. While previous assessment did not document each individual tree, it did document 11 trees with a diameter at breast height of greater than 60cm. All of which have been subsequently removed. It is estimated from aerial imagery that a further 40 trees with a DBH of between 20–60 cm have also been removed. The removal of trees on the site has been completed in such a way that no above-ground evidence of the trees is now visible ... This has resulted in significant understorey disturbance. As a result, the majority of indigenous flora previously existing on the study site has either been removed or significantly disturbed and exotic weed species have quickly colonised the resultant disturbed ground out-competing native species which previously dominated large areas of the site. The majority of grazing habitat for Eastern Grey kangaroo has also been removed.
22Mr Lamande stated that of the eleven specimens of the matted flax-lily he previously found on the land, which is listed as endangered under the Environment Protection and Biodiversity Conservation Act, six could not be located and are highly likely to have been destroyed and removed. He also stated that the habitat for the Golden Sun moth, which is listed as critically endangered under that Act, has been destroyed and removed.
23An offence under s 126(2) of the Planning and Environment Act has a maximum penalty of 1200 penalty units which, at the time these offences were committed, amounted to $198,264.
Appellants’ submissions
24Mr Shaw, who appeared on behalf of the appellants, submitted that the offending, whilst not trivial, is not at the upper end of the scale of seriousness. He submitted that contraventions of a planning scheme, can range from minor to very serious depending on the purpose, scope, and context of the particular clause of the planning scheme contravened.
25Mr Shaw submitted that the first appellant is guilty of two strict liability offences by virtue of its status as owner of the land. The second appellant, Mr Dimech, is guilty because he failed to exercise due care and diligence to prevent the breaches.
26With regard to the maximum penalty, Mr Shaw noted it was increased significantly in 2000. He submitted that the maximum penalty is only one factor amongst a number that I am required to take into account and that I should not give it undue weight.
27With regard to the VCAT proceeding, Mr Shaw submitted that whatever be the outcome of that proceeding, the appellants will have obtained no potential or actual commercial advantage by committing the offences. Relying on Knox City Council v Tulcany Pty Ltd,[1] it was submitted that “an applicant gets neither a benefit nor a disadvantage by commencing development of land before obtaining a permit”.
[1][2004] VSC 375 at 13(a).
28Regarding Mr Dimech’s moral culpability, Mr Shaw submitted that although it could be argued that he should have made further enquiries regarding the need for a permit, it could not be said that he had a high degree of culpability or that he wantonly disregarded the law. It was not “illogical” Mr Shaw argued, for Mr Dimech to rely on information he received from Mr Kuru. It was submitted that reliance on the word of the contractor reduced Mr Dimech’s moral culpability.
29Mr Shaw also relied on the appellants ceasing further activity on the land when advised that the removal of vegetation and works were unlawful. It was submitted that the appellants thereafter cooperated with investigators.
30The appellants, it was acknowledged, pleaded ‘not guilty’ at the Magistrates’ Court hearing. The defence at the contested hearing, I was informed, was based on a mistake of fact or a mistake of fact and law. The appellants did not deny that the vegetation was removed, or that the works were done without permits.
31Mr Shaw submitted that there was no evidence that could prove, to the necessary standard of beyond reasonable doubt, that the second appellant made a “commercial calculation” in his failure to exercise due diligence. Mr Shaw submitted that the evidence at the Magistrates’ Court hearing from Mr Kuru, was to the opposite effect.
32Mr Shaw also pointed to a number of other considerations which, in his submission, lessened the gravity of the offending and his clients’ moral culpability. The land, he submitted, did not have a planning overlay. Mr Shaw submitted that clause 52.17 was a standard provision found in every identical scheme in Victoria. It does not only apply to land that has significant vegetation. Mr Shaw submitted that land which has significant vegetation would ordinarily be subject to overlays and, all other things being equal, penalties for breaches of planning laws would be greater. It was noted, however, that the maximum penalty does not change where an overlay is applied to land.
33Mr Shaw also pointed to the fact that the whole area of land, including surrounding blocks, is zoned Industrial 1, and is situated in the Northern Industrial precinct. There are, he submitted, competing considerations as to how the council wants the land used and this, it was submitted, went to the gravity of the offending and the moral culpability of the appellants. What the company has done, it was submitted, is within keeping of the proposed land use. Mr Shaw referred to clauses 17.03, 21.04 and 33.01 of the Hume Planning Scheme and generally to the Plan Melbourne Planning Strategy. Thus, it was submitted, removal of the native vegetation and works conducted in an industrialised area was less grave than had similar conduct been undertaken in a rural zone. Mr Shaw submitted that in the planning context, the removal of vegetation cannot be seen at the higher end of seriousness.
34In response to a question from me whether the type of native vegetation removed was of significance, Mr Shaw said that the number of trees removed, and whether or not they were endangered, is part of the consideration, but it was a question of where the emphasis is placed, pointing to the differing considerations in the planning scheme and the zoning of the land.
35Mr Shaw stated that most offences under the Act are dealt with in the Magistrates’ Court, and reasons for sentence are not reported. However, he argued some guidance as to current sentencing practice may be found in the decisions of 160 Leicester Pty Ltd v City of Melbourne (the “Corkman”case ),[2] Lewis and Anor v Mangano and Mangano[3] and DC Consolidated Investments Pty Ltd v Maroondah City Council.[4]
[2][2019] VCC 1430
[3][2015] VSC 592
[4][2011] VSC 634
36Mr Shaw submitted that in sentencing the appellants I should apply the principle of totality and take care to avoid double punishment. He submitted that the two charges against the company effectively cover different aspects of one piece of conduct, that is, the carrying out of work preparatory to building on the land. Similarly, Mr Dimech’s failure to exercise due diligence to prevent each aspect of the works from being carried out, was also part of the work preparatory to building on the land. Moreover, it was submitted that Mr Dimech is one of two directors and shareholders of the company and that the sentence imposed on the appellants ought not result in Mr Dimech being doubly punished. Mr Shaw relied on the decision in Leichhardt Council v Geitonia Pty Ltd (No 7).[5]
[5][2015] NSWLEC 79, [52]
37Mr Shaw sought to distinguish the conduct here from the conduct in Corkman. He submitted that unlike the conduct in Corkman, I should not view the appellants’ conduct as a risk they have taken simply as part of the “cost of doing business”. That is, I should not be satisfied beyond reasonable doubt that this was a commercial calculation taken by the appellants. Mr Shaw also submitted that the penalties imposed in the Corkman case were imposed for much greater offending than the case before me.
38I was informed that Mr Dimech has been the general manager and executive director of a concreting company since 2001. Although he does not have a share in that company, as its executive director, he sits on the company’s board. I was also informed by Mr Woods, who appears on behalf of the respondent Council, that Mr Dimech also has or had been involved in sixteen companies, a number of which appear to be property-development companies. This was not disputed by Mr Shaw.
Respondents Submissions
39Mr Woods submitted that the charges relate to separate events of development. He emphasised that the criminal conduct was not a single act or omission but rather two, both of which fall to be punished. The first event was the removal, destruction and/or lopping of native vegetation. The second event being the changing of the natural or existing conditions of topography by the removal of earth and topsoil, and the creation of “hardstand” through the piling and spreading of gravel. With regard to Mr Dimech, his failure to exercise due diligence was in respect of the two separate acts committed by the company.
40Mr Woods also noted that each appellant has now pleaded guilty to two separate charges, and both appellants should be punished separately. He submitted it is appropriate to impose a financial penalty upon both the first and second appellant and record convictions against each.
41Mr Woods submitted that the seriousness with which Parliament views the offending may be gauged by the maximum penalty that may be imposed. Prior to the Planning and Environment (Amendment) Act 2000 coming into force, the maximum penalty was 40 penalty units, then $4000. The increase in penalty was, according to then then Minister for Planning, intended to increase significantly the penalties under the Act “to reintroduce that deterrent effect.”
42It was submitted that the offending in this case was at the upper end of the range of seriousness. Mr Woods placed much weight on the excerpts from the two reports of Mr Lamande referred to in the respondent’s offence summary. Apart from the rarity and ecological value of the grassy woodland vegetation destroyed, Mr Woods also submitted that the offending was at the upper end of seriousness when regard is also had to the amount of native vegetation removed. Mr Woods referred to the photographs of the land taken before and after the offending that show the extent of the destruction of the native fauna.
43Regarding the appellants reliance upon the fact that the land did not have a protective overlay, Mr Woods submitted that it was not correct to say that an overlay meant land was more important. The importance of this land, he submitted, is marked by the actual vegetation upon it, the importance of which is set out in Mr Lamande’s reports. Mr Woods noted that Mr Lamande’s opinions, extracted in the summary, were not the subject of any challenge by the appellants. The significant vegetation on this land is now entirely lost, he submitted. Mr Woods also submitted, that even if the land had a protective overlay, the two appellants would still be facing the same charges, with the same maximum penalties.
44Mr Woods referred to clause 21.08-1 of the Hume Planning Scheme. Contained within that clause is the following:
Hume’s remnant vegetation is amongst the most endangered in Victoria. This vegetation exists as scattered trees, woodlands, grasslands, scrublands and riparian vegetation. Hume’s remnant landscape continues to support both common and threatened native plants and animals.
45Thus, Mr Woods submitted, it is not the case that just because land is in an Industrial Zone, it is necessarily of less significance. Moreover, the Court does not know, when or how the neighbouring properties obtained their planning permission, there being no evidence of this. The fact is, he said, that there were policies in existence at the time of the destruction to protect remnant endangered vegetation, and that is what is relevant.
46Mr Woods also relied on the objectives listed under clause 22.01-1 of the Planning Scheme, in particular the objective to protect significant natural and cultural heritage sites wherever possible. He reiterated that the unchallenged evidence of Mr Lamonde is that this was a significant natural site, and the scheme contemplates the need to protect significant natural sites, even in industrial zones. Mr Woods submitted that this consideration, together with the considerations in clause 52.17, would have been considered by the Council, had the appellants undertaken the proper course of seeking planning permission. However, and regardless of what the Council may or may not have done and, similarly, regardless of what VCAT may or may not do, Mr Woods submitted that the appellants fall to be sentenced for their criminal conduct in acting without planning permission.
47With regard to the appellants reliance upon the conversation between Mr Dimech and Mr Kuru, Mr Woods submitted that owning a property of this size, type and location required far more than simply asking an individual, whose job it was to remove trees, whether or not it was okay. This was, he submitted, not a “mum-and-dad” operation. The size of the property is some 24,000 square metres in an industrial zone. The company has applied for permission to subdivide the property and construct six warehouses, at a significant estimated cost of $6,800,000. At the very least, it was submitted, the company and Mr Dimech should have obtained written confirmation that a permit was not required, if that is what they understood. Mr Woods submitted that an owner of a site of this kind needs to do more than simply have a conversation of the nature of that between Mr Dimech and Mr Kuru. He submitted that Mr Dimech’s and the company’s failure to do more is an aggravating factor.
48In his submissions, Mr Woods noted that the previous owner of the land had applied for a planning permit to remove all native vegetation on site. A planning permit was refused by the Council on 25 August 2018. I was not informed of the basis for the refusal.
49Regarding the moral culpability of the appellants, Mr Woods stated that a significant commercial development was proposed, and the removal and placing of the hardstand was done in contemplation of some future commercial purpose. Mr Woods submitted that it was open to the Court to conclude from the actions of the first and second appellant that a commercial calculation was made. That is, the appellants weighed up the potential penalties they would face as a result of the breaches of the law against the potential profit that would result from the development of the land. Mr Woods submitted that what was done here was little different to what was done in the Corkman case. He noted that the developers in Corkman had spoken to a lawyer and an engineer and acted on their advice before engaging in the demolition of the Corkman hotel. In support of a submission that I should be satisfied beyond reasonable doubt that this was a commercial calculation, Mr Woods relied on the following matters:
(a) there is broad knowledge across the community of the requirement to obtain permits to remove vegetation, especially in significant quantities;
(b) the company is named after the site and is a property development vehicle. Mr Dimech is a director of this company, and of other apparent development companies;
(c) the illegal conduct occurred within mere ‘moments’ of the property’s purchase;
(d) a planning permit for its development was sought some twelve months after the removal of the native vegetation;
(e) the placing of hardstand on the land indicates it was going to be used for a commercial purpose; and
(f) the appellants have not placed before the Court any cogent reason why the appellants engaged in the conduct, but for the potential to develop the land.
50Mr Woods also submitted that it is common in the industry that the advice of consultants be obtained.
51Mr Woods properly acknowledged that I would also need to consider the conversation between Mr Kuru and Mr Dimech in my assessment of whether this was a commercially calculated decision of the appellants. He also acknowledged that an inference also open is that the appellants acted out of ignorance and stupidity in relying on the word of Mr Kuru.
52With regard to penalty, Mr Woods submitted that the principles of general and specific deterrence are significant in this case. He submitted that it must be made clear to each appellant, and the community at large, that planning permissions and processes cannot be circumvented, and will not be tolerated.
53The respondent seeks costs for both the Magistrates’ hearing and the appeal. The respondent agrees that a costs order is properly to be regarded as part of any penalty imposed. Section 3 of the Sentencing Act 1991 defines “fine” to include costs.
Sentencing Considerations
Objective Gravity
54The charges with which each appellant faces concerning the destruction of the native vegetation without permission, charges one in both appeals, in my opinion, are serious breaches of the planning laws of Victoria. I do not agree that that offending cannot be viewed as higher end offending. The charges that relate to the carrying out of works on the land without permission, charges two in both appeals, I would place in the mid-range level of seriousness.
55Significant native vegetation was destroyed and lost. The environment has been irreparably damaged. At the risk of repetition, what was destroyed was important and critically endangered woodland vegetation and a functioning ecosystem that provided habitat for a wide range of species. The opinions of Mr Lamonde were not challenged including that in 2018 the site represented one of the larger remnant patches of Red Gum Grassy Woodland vegetation in the local area of moderate to high quality. Following its destruction, no patches of native vegetation that could be recognised as Red Gum Grassy Woodland were observed. All the trees on the study site have been removed. The native vegetation also provided habitat for the Golden Sun Moth, itself a critically endangered species. I have regard also to the quantity of vegetation removed. Furthermore, the works carried out, which included the removal of the topsoil and the creation of a hardstand, changed the existing condition and topography of the land.
56In acting as the appellants did, without permission, proper processes were not able to be followed. The Council was denied the opportunity to consider the applications, to consult with experts, to approve or reject the applications, or to impose conditions such as offsets. Importantly, it was denied the opportunity of ensuring there was “no net loss to biodiversity” in keeping with the mandate under clause 52.17 of the Hume Planning Scheme.
57I do not accept the submission that the objective gravity of the offending is reduced because clause 52.17 is a standard provision appearing in every planning scheme. There is no doubt good reason why all planning schemes adopt such purposes as set out in that clause. I also reject the submissions that the objective gravity is reduced because there was no protective overlay in respect of the native vegetation destroyed, or because the land was in an Industrial Zone.
58I accept Mr Woods’ submission that the importance of the land in this case, whether or not there is a protective overlay, is marked by the importance of the vegetation upon it. Each case must be decided according to its own facts. The significance of the vegetation on the land in this case is clearly set out in Mr Lamande’s reports.
59I accept Mr Woods’ submission that the fact that the land is in an Industrial Zone does not mean it is necessarily of less significance. The Hume Planning Scheme has policies in existence to protect remnant endangered vegetation. Those policies do not just apply to areas designated rural or that are otherwise non-industrial.
60I also accept that the appellants should have done more than simply take the word of Mr Kuru. It was their responsibility to ensure compliance with the law. It was their responsibility to ensure that all necessary permits were obtained for the development of the land. That responsibility was not discharged by simply accepting the word of Mr Kuru. The appellants, in my view, fell well short of what was required of them.
61Mr Dimech was one of two directors of the company. Having regard to his work history I find it surprising, to say the least, that he was prepared simply to accept the word of Mr Kuru. This is not just a matter where Mr Dimech “could have done more”. As a director and officer of the company, he was legally obliged to do more. Through his pleas of guilty, Mr Dimech acknowledges that he failed to exercise due diligence in two important respects.
62Due diligence would require that the proper officer of the company satisfy him or herself, on a proper basis, whether or not permits are needed. I agree with Mr Woods’ submission that the owner of a site of this kind and Mr Dimech needed to do more than just speak to Mr Kuru. The failure to do so, however, is not an aggravating feature of their offending. It is the basis of liability.
63However, as there is no issue that Mr Kuru informed Mr Dimech that the works and removal of native vegetation could be undertaken on the land without a planning permit, I am prepared to accept that Mr Dimech’s moral culpability is somewhat reduced.
64The destruction of the native vegetation, and the carrying out of works on the land was, in my opinion, a commercially based decision. It was done in preparation of subdividing the land and constructing warehouses. However, I am not able to find, beyond reasonable doubt, that the appellants deliberately engaged in the conduct without Council permission as the calculated cost of doing business. As was acknowledged by Mr Woods, it is a possibility that the appellants acted out of ignorance and stupidity in relying on the word of Mr Kuru. To be clear, however, this is not a positive finding that the appellants’ conduct was not a commercially calculated decision. The evidence is not sufficient to persuade me one way or the other.
65As earlier stated, Mr Shaw submitted that whatever be the outcome of the VCAT proceeding, the appellants will have obtained no potential or actual commercial advantage by committing the offences. However, what was said in Knox City Council v Tulcany Pty Ltd, was said in the context of an application to VCAT for a permit after works had been illegally done. The principle there expressed by Osborn J was that “the permit applicant should neither be punished nor rewarded for undertaking the work before a permit was granted.”[6] That was not said in respect to criminal proceedings. His Honour referred to the decision of the Planning Appeals Board in Van Egmond v City of Knox, Bassett & Ors,[7] where the Chairman, Mr Morris (as he then was) stated:
The Board proposes to consider the application on its merits and not place the Applicant at any disadvantage because he has commenced the use illegally. … Be this as it may the Board wishes to make it clear that it does not condone the illegal commencement of a use. Any permit issued at the direction of the Board can only operate prospectively and does not retrospectively authorise the use from its commencement. Consequently, even if a permit is granted at the direction of the Board, the Applicant can still be prosecuted for illegally conducting the use prior to the issue of a permit. Moreover, if such a prosecution is successful, the Board cannot see how any subsequent decision to direct the issue of a permit can be regarded as a mitigating factor. The fact that the Board proposes to deal with this matter on its merits and not penalise the Applicant for his illegal commencement makes it more important that any prosecution considered on its merits (that is upon the culpability of the Applicant at the time the offence was committed) rather than on the basis that this was a mere technical omission which has now been corrected. If those who breach the law are not prosecuted, the law will quickly fall into disrepute and the whole system of town planning will be undermined.
[6] Ibid [13(a)].
[7] (1985) 3 PABR 249 at 250
66In this case, I do not know and cannot speculate upon whether the appellants will have obtained a commercial advantage by committing the offences.
67In assessing the gravity of the offending, I also have regard to the maximum penalties that may be imposed.
68As already mentioned, the maximum penalty for an offence against s 126(2) of the Act, is a penalty of not more that 1200 penalty units. At the time these offences were committed this amounted to $198,264. The significant increase in penalty in 2000 to its current level reflects how seriously the legislature, on behalf of the community, views this type of offending.
69In Markarian v R,[8] the High Court stated:
“It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick. … .”
[8](2005) 228 CLR 357 at [31]
70I accept Mr Shaw’s submission that I am not to give undue weight to the maximum penalty at the expense of the other matters to which I must also have regard under s 5(2) of the Sentencing Act. As Mr Shaw submitted, I should “steer by, not aim at, the maximum”.[9]
[9]Director of Public Prosecutions (DPP) V Aydin [2005] VSCA 86 at paragraph [12]
Current Sentencing Practice
71I have considered the sentencing cases to which I was referred by Mr Shaw. I agree with both counsel that there is little real guidance to be obtained from the reported cases as most cases are decided in the Magistrates’ Court where the reasons for sentence are generally not reported.
72In the Corkman case, the appellants faced a number of charges, three of which were contrary to s 126(2) of the Act. The necessary permit for the demolition of the Corkman Hotel had not been obtained by the appellants. Notwithstanding a building inspector’s efforts to inspect the Hotel building before it was demolished, and an appointment having been made with the appellants for such inspection on the Monday, the appellants proceeded with the Hotel’s demolition on the weekend immediately preceding the scheduled inspection. According to one of the appellants, a building engineer had told him that the building was dangerous and had to come down, hence the urgent demolition. Stop work orders were ignored by the appellants.
73Judge Wraight found that the demolition of the Hotel resulted in the community losing an important part of the built environment of Carlton and Victoria. His Honour also found that the only reasonable conclusion to be drawn from the appellants’ decision to demolish the significant historical property was that the appellants made a “commercial calculation”. That is -
they weighed up the potential penalties that they would face as a result of the deliberate breach of the law, with the potential profit that would result from development of the site, before going ahead.[10]
[10] Ibid [55]
74In Corkman, the appellant company was charged with - charge one, being an owner of land, using that land in contravention of a planning scheme contrary to s126(2) of the Act; charge two carrying out building work without notice contrary to local law 9.1, an offence that carries a maximum penalty of $2,000; and charge three, carrying out building work outside hours contrary to local law 9.5, which carries a maximum penalty of $2,000. The company was convicted and fined an aggregate sum of $100,000 in respect to those three charges. It was also convicted and fined an aggregate of $450,000 in respect of other charges not here relevant. The maximum penalty for an offence against s.126(2) was then $186, 552.
75The second and third appellants, Mr Shaqiri and Mr Kutlesovski, were each charged with the offence of being an owner of land and using that land in contravention of a planning scheme contrary to s 126(2) of the Act. They were each convicted and fined $60,000. They also incurred a fine of $25,000 each for carrying out building work without a permit contrary to s 16 of the Building Act 1993.
76The company and each of Mr Shaqiri and Mr Kutlesovski were also fined in relation to breaches of the Environment Protection Act 1970. Costs were also awarded against each appellant.
77It might be argued that the destruction of the vegetation here is as significant, if not more significant, than the destruction of the Corkman Hotel. However, regard must be had to his Honour’s finding concerning the motivation of the appellants in Corkman, a finding I do not make in this case.
78In DC Consolidated Investments Pty Ltd v Maroondah City Council, the appellant company was convicted and sentenced for the poisoning of 33 native trees on land owned by the company. The company was found to have breached s 126(2) of the Act.
79In that case, when dealing with the sentence imposed by the learned Magistrate, Osborn J noted that 33 substantial and healthy trees with an estimated life expectancy of 50 years or more were poisoned by the deliberate boring and application of poison to them. The evidence showed that the trees had a value of over $146,000. It could not be proved beyond reasonable doubt that the officers of the appellant company, who had denied knowledge of how the trees were poisoned, had such knowledge. Nor did the evidence, conversely, positively establish lack of such knowledge as a factor favourable to the company upon sentence. The agreed statement of facts before the Magistrate showed that the site in question was of at least regional significance in terms of the pre-existing vegetation.
80DC Consolidated Investments was a company engaged in property development and proposed to undertake a substantial commercial development upon the site in question. His Honour held that the fine of $40,000, by way of an aggregate fine in respect to breaches of two clauses under the planning scheme; the first directed to protection of native vegetation generally; and, second, directed to the protection of native vegetation at particular locations, was not manifestly excessive notwithstanding that the breaches were constituted by the same circumstances. The maximum penalty then applicable was $130,000. His Honour noted that the Magistrate was entitled to reach the conclusion she did having regard, amongst other things, to the need for general deterrence, the maximum penalty applicable of $130,000, the value of the trees destroyed, and the nature of the offending.
81In Lewis and Anor v Mangano and Mangano, the respondents were convicted and fined an aggregate of $500 each for breaching s 126(1) of the Act. Antonietta Mangano was found guilty of two breaches of that section, and Santo Mangano was found guilty of three breaches of that section. The charges related to the illegal removal of vegetation from a property in Sommerville and an adjoining parcel of government land.
82Charges one and four related to the illegal removal of vegetation contrary to the Environmental Significance Overlay, and Charge 7 related to illegal earthworks being carried out on the North Westernport Conservation Reserve contrary to the Environmental Significance Overlay. With regard to the first, fourth and seventh charges, the council alleged that the respondents removed vegetation without a valid planning permit contrary to clause 42-01-2 of the Environmental Significance Overlay Schedule 5.
83At the plea hearing in the Magistrates’ Court, it was submitted that the land and the public land had significant ecological value by reason of the high quality of native vegetation and its habitat value.
84On behalf of the respondents, it was put that before they purchased the land in 2013, they approached the local shire for advice and were told “that there were no problems in the inside of the property”. The respondents wanted to cut down some trees as the tenant was complaining about trees falling down. There was no plan to market the trees or erect buildings or anything of that nature. Their purpose, in the main, was to protect themselves from bushfires. They understood that their property boundary went down to the river. Prosecuting counsel conceded that the circumstances mitigated what would otherwise be quite a large penalty.
85The Magistrate accepted that the respondents’ clearing of the land had been made through an error on their part. He said they had gone to the council offices, received advice, and thought, wrongly, they were free to do what they did. The Magistrate also accepted that their conduct was not done for any financial benefit; it was not done for any ulterior motive; it was done simply because of their concerns in relation to fire issues and the potential danger that it presented.
86The appellants appealed the sentences imposed by the learned Magistrate on questions of law. The matter was heard on appeal by Zammit J, as her Honour then was, now Incerti J.
87The grounds of appeal were that the sentences imposed were manifestly inadequate and or the sentences imposed were not reasonably open to the Magistrate in all the circumstances of the case.
88At paragraph 47, Incerti J stated:
What is relevant in this case is that the only evidence before the Magistrate, which was not contradicted, is that the appellants received information from the Council officer that there was no problem cutting down the trees on the inside of the property and that there were no difficulties in the area that was contained inside ‘that yellow line’. There was no evidence that the respondents were getting the property ready for some commercial development or residential development or that the property was being prepared as a potential building site or that they were chopping down the trees ‘in order to flog the firewood to make money’.
89Her Honour noted that the appellants’ solicitor agreed that the circumstances favouring the respondents mitigate what would otherwise have been a large penalty. Her Honour found that the sentences imposed by the Magistrate on the respondents were not manifestly wrong or inadequate.
90It should be noted that both the DC Consolidated case and the Mangano case were appeals on questions of law and were directed, insofar as the monetary penalties were concerned, to the question of whether they were manifestly excessive or inadequate.
91Current sentencing practice is just one of a number of considerations that I must, where possible, take into account. Past sentences are not sentencing precedents. It has not been possible, on the cases to which I was referred, and through my own research, to determine a range of sentences for breaches of s.126(2) of the Act. In any event, each case must ultimately be determined on its own facts and circumstances.
Double Punishment
92I have considered the decision of Biscoe J in Leichhardt Council v Geitonia Pty Ltd to which I was referred by Mr Shaw.
93In that case, Mr Gertos was the sole shareholder and director of the company Geitonia. He was “its alter ego”. At paragraph 52 Biscoe J stated:
Where an individual offender and the company that he owns are each being sentenced for the same offence, the fines to be imposed should be such as to avoid double punishment of the individual arising from the diminution in the individual’s valuable interest in the company to the extent of the fine imposed on the company.
94I do not take this to be a principle that applies only to cases where the offender is the sole shareholder of the corporate offender. In Australian Competition and Consumer Commission v ABB Transmission and Distribution Limited (No 2),[11] a decision referred to by Biscoe J, Finkelstein J considered the question of penalty in a case involving charges against a corporation and its principal shareholder. His Honour stated that he would not ignore -
the fact that Mr Wilson is the principal shareholder in WTC, and the diminution of its assets that will result from the imposition of a pecuniary penalty is a loss that will ultimately be borne by Mr Wilson.
[11][2002] FCA 559
95In the case before me, I was told Mr Dimech is one of two shareholders having equal shares in the company. Although the charges to which Mr Dimech pleaded guilty are not the same as those to which the first appellant pleaded guilty, they do arise out of the same conduct, namely the destruction of the native vegetation and work done on the land without the necessary permits. Accordingly, some allowance will be made for the loss Mr Dimech will ultimately bear from the fine to be imposed on the company. However, it must not be forgotten that the basis for each appellant’s liability is different, and penalties must be imposed to reflect the fact that both appellants have offended.
Totality
96I accept the submission of Mr Shaw that I should have regard to the totality principle in the circumstances of this case.
97Each appellant falls to be sentenced in respect of two separate and distinct offences. The offending occurred over the same period, and was undertaken for the purpose of sub-dividing and establishing warehouses on the land. With respect to each appellant, I am required to review the aggregate fine each will be penalised to ensure that the aggregate is just and appropriate.[12]
[12] See Mill v The Queen (1988) 166 CLR 59 at 62-63
Acceptance of Guilt
98The appellants pleaded ‘not guilty’ when the charges against them came on for hearing at the Magistrates’ Court. I was informed that there were three separate days of contested hearing, and multiple witnesses were called and cross-examined. The appellants were wholly unsuccessful in their defence of the charges. The appellants appealed against the convictions and sentences imposed by the learned Magistrate. However, the appeal against convictions was ultimately abandoned just before Christmas 2022.
99I have regard to the fact that the decision to accept guilt was made late. It was not suggested that the acceptance of guilt is evidence of any remorse on the part of either appellant. The acceptance of guilt does, however, reflect a willingness of each appellant to now accept responsibility for their conduct.
Deterrence, Denunciation and Just Punishment
100In my opinion, there can be no doubting the significance of general deterrence in the sentences to be imposed. It is important that those who are minded to engage in similar conduct understand that, if they do, they risk the imposition of significant penalties.
101As was stated by Biscoe J in the Leichhardt Council case:
the sentence needs to 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 caught, only light punishment will be imposed.[13]
[13]Ibid at [50]
102His Honour noted the importance of general deterrence in cases where the offenders “are in development businesses”.[14]
[14]Ibid at [50]
103Neither appellant has a criminal history. Accordingly, the sentencing consideration of specific deterrence will be moderated. That is not to say that no weight will be attached to specific deterrence. Mr Dimech is involved in property development and the penalty to be imposed must operate to deter him from engaging in similar conduct in the future. While submissions were not made as to the risk of future offending, in the case of Mr Dimech, I may infer that the risk is low given his age, work history and the absence of prior convictions.
104The sentences to be imposed on each appellant must also manifest the denunciation by the Court of the type of conduct in which the appellants each engaged.
Sentence
105This is an appeal by way of rehearing. I must determine for myself what are just and proportionate sentences having regard to the submissions made by the parties and proper sentencing principles, including the fact that some costs will be ordered against the appellants. Whilst the offending of each appellant is serious, having regard to those sentencing principles, I feel constrained to impose sentences that overall are somewhat less than those imposed by the learned Magistrate.
106I set aside the orders of the learned Magistrate made on 4 May 2022
107In their stead, I sentence the first Appellant as follows:
Charge 1 – Convicted and fined $85,000.
Charge 2 – Convicted and fined $40,000.
108I sentence the second Appellant as follows:
Charge 1 – Convicted and fined $70,000.
Charge 2 – Convicted and fined $30,000.
109Pursuant to s 6AAA of the Sentencing Act had either appellant contested the charges before this Court and been found guilty, the sentences I would otherwise have imposed are:
First Appellant - $100,000 on charge 1, and $50,000 on charge 2.
Second Appellant - $85,000 on charge 1, and $40,000 on charge 2.
110I propose to order costs as agreed between the parties and set out in the minutes of the proposed consent order dated 28 March 2023.
111The first appellant is to pay costs in the amount of $30,000 to the Respondent. The second Appellant is to pay costs in the amount of $30,000 to the Respondent. The costs are in respect of the proceedings in the Magistrates’ Court and on appeal in this Court.
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