Great Lakes Council v Spalding
[2011] NSWLEC 257
•20 December 2011
Land and Environment Court
New South Wales
Medium Neutral Citation: Great Lakes Council v Spalding [2011] NSWLEC 257 Hearing dates: 20 December 2011 Decision date: 20 December 2011 Jurisdiction: Class 5 Before: Preston CJ Decision: The Court orders:
1. Mr Spalding is convicted of the offence against s 125(1) of the Environmental Planning and Assessment Act 1979 as charged.
2. Mr Spalding is fined the sum of $7,500.
3. Pursuant to s 257B of the Criminal Procedure Act 1986, Mr Spalding is to pay the prosecutor's costs of the proceedings as agreed or assessed.
Catchwords: ENVIRONMENTAL OFFENCE - use of shed as a dwelling house without obtaining development consent - sentence - potential risk of harm not substantial - commission of offence intentional and for profit - early guilty plea - assistance to authorities - contrition and remorse - limited financial capacity to pay fine - amount of fine reduced for limited means Legislation Cited: Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A
Criminal Procedure Act 1986, s 257B
Environmental Planning and Assessment Act 1979, ss 76A(1), 125(1), 149D
Fines Act 1996, ss 6, 7, 10Category: Sentence Parties: Great Lakes Council (Prosecutor)
Michael Spalding (Defendant)Representation: Mr T G Howard (Prosecutor)
Mr Spalding (Defendant in person)
Mallik Rees Lawyers (Prosecutor)
File Number(s): 50958 of 2011
Judgment
Mr Michael Spalding owns a quarter acre block of land at 38 Cove Avenue, Bundabah, on the northern shore of Port Stephens. It is formally described as Lot 19, Section 4, Deposited Plan 10915. Mr Spalding has used a shed previously erected for the purpose of a wholesale nursery as a dwelling house without obtaining development consent contrary to s 76A(1)(a) of the Environmental Planning and Assessment Act 1979 ( "the EPA Act" ), and has thereby committed an offence against s 125(1) of the EPA Act . Mr Spalding has pleaded guilty to the offence. A sentence hearing has been held.
The facts relevant to the sentence to be imposed are to be found from a statement of agreed facts, together with attached documents (Exhibit A); parts of the affidavit of Mr Nicholas Green, a Council building inspector (at paragraphs 1, 28 and 29 except for sub-para (o)); a report of Mr William Barlin, a regional electrical inspector with Essential Energy, which was attached to the statement of agreed facts; an exclusive management agency agreement (residential) between Mr Spalding and a real estate agent, Century 21 Coastal Properties (Exhibit B); an extract from the zoning map under the Great Lakes Council Local Environmental Plan 1996 showing the zoning of Mr Spalding's various properties at Bundabah (Exhibit C); recent for sale advertisements of Lot 19 and an adjoining Lot, Lot 18, which Mr Spalding owns (Exhibit D); and an exchange of emails in March 2010 between Mr Spalding and Mr Green (Exhibit E). Mr Spalding also gave evidence. He tendered a statement responding to the Council's evidence and explaining his financial position (Exhibit 1) and he gave oral evidence. He tendered a sales inspection report for another property he has put on the market, Lot 14 (Exhibit 2).
The Court's task is now to determine and to impose the appropriate sentence for the offence.
The facts of the offence
Mr Spalding has owned up to thirteen blocks of land at Bundabah, all around a quarter of an acre in size. Except for one block, all of the blocks, including Lot 19, are zoned 1(a) Rural under the Great Lakes Local Environmental Plan 1996 ("the LEP"), an environmental planning instrument made under the EPA Act . In the 1(a) Rural zone, the erection and use of a dwelling house is development which may be carried out with development consent (cl 8).
However, cl 19 of the LEP sets a development standard of a minimum lot size for a dwelling house. A dwelling house may not be erected unless the land has an area of not less than 40 hectares in area or the land comprises an existing holding or an allotment created under other specified environmental instruments. State Environmental Planning Policy No. 1 - Development Standards ("SEPP 1") would permit a person who wishes to erect a dwelling house on land less than the minimum lot size in cl 19 of the LEP to make a development application for that development, supported by a written objection that compliance with the minimum lot size development standard is unreasonable or unnecessary in the circumstances of the case. Great Lakes Council, as the consent authority, could grant consent to that application if it were to be satisfied that the objection is well founded and that granting consent is consistent with the aims of that policy.
Lot 19 has an area of only 1,176 square metres, far less than the minimum lot size of 40 hectares. It is not an existing holding or a specified allotment. Mr Spalding's land was, therefore, constrained by cl 19 of the LEP.
Mr Spalding has not applied for development consent for the erection and use of a dwelling house on the land, supported by an objection under SEPP 1 to compliance with cl 19 of the LEP. The Council has not granted consent to the erection or the use of a dwelling house on the land.
However, in 2010, Mr Spalding modified an existing shed he had erected previously on the land, including by adding sanitation facilities, to adapt it for habitation as a dwelling house. From 14 April 2011, Mr Spalding let the land and modified shed as a dwelling house under a Residential Tenancy Agreement to a tenant for a period of six months at a rent of $200 per week. The residential tenant resided in the modified shed. After the Council took action, Mr Spalding advised the real estate agent and the tenant was requested to move out. After other accommodation was found the tenant did move out before the end of the period of the residential tenancy agreement. The shed has not been occupied as a dwelling house since that time.
At the times Mr Spalding modified the shed and let it as a dwelling house, I find Mr Spalding knew that the erection and use of a dwelling house without development consent was illegal. There had been a history of dealings between the Council and Mr Spalding in relation to the shed on the land and its use. This history is relevant to Mr Spalding's state of mind and reasons for committing the offence. This history is as follows.
In late 2002, Mr Spalding was wishing to erect a shed on his land. He had spoken to one of the Council's planners about his proposal to erect a shed. On 4 December 2002, Mr Spalding wrote an email to the then Mayor of the Council. Mr Spalding noted that he had been advised by a council planner that the Council was concerned with approving sheds on rural land "as people have been known to 'fit them out' and live in them." Mr Spalding assured the Mayor that his proposed shed "will not be used at any time for any purpose other than as a storage shed." He complained to the Mayor that "not approving a legal development on the grounds that it may be used for some other purpose in the future seems a little outrageous to me." He stated that he had sought legal advice that building a shed is perfectly legal but then noted that "building a dwelling or residing on non-urban land is not and we all understand that."
On 11 December 2002, Mr Spalding submitted a development application for the erection of a shed and the conduct of a wholesale nursery on the land (DA 561/03). The Council did not determine this development application until 22 September 2003 when it granted development consent on conditions. In between, Mr Spalding went ahead and poured a concrete slab for the shed. This was observed by a council inspector on 20 March 2003. Mr Spalding then erected the shed.
Some time later, the Council would appear to have issued a notice of intention to issue an order concerning the carrying out of development without consent. Mr Spalding wrote to the Council on 14 April 2003 in response to this notice explaining his reasons for erecting the shed before the Council had determined his development application. In that letter, Mr Spalding referred to a conversation he had had with one of the councillors who had "outlined Council's policy which was to put a stop to illegal dwellings". Mr Spalding stated he was "trying to establish a genuine wholesale plant nursery" and that "I am definitely not creating a dwelling".
On 13 June 2003, the Council issued another notice of intention to give an order concerning the shed. On 2 July 2003, Mr Spalding's then solicitors, Stacks, made submissions on Mr Spalding's behalf in relation to the notice, asserting that development consent was not required to erect a shed for the purpose of agriculture and that Mr Spalding's intended use was for this purpose.
In the end, development consent was granted on 22 September 2003 for the use of the shed and of the land as a wholesale nursery.
On 20 December 2004, Mr Spalding lodged an application for a septic system with the Council.
On 5 January 2005, Mr Spalding wrote to the Council concerning advice he had received from a council officer that permission could not be given for the septic system as a valid consent did not exist. Mr Spalding enquired where in the legislation it states that a valid consent is required for a septic system. In the course of that letter, Mr Spalding asserted that the land was being used for horticultural purposes, being fruit production and a wholesale plant nursery.
On 15 April 2005, Mr Spalding applied for a building certificate under s 149D of the EPA Act in relation to his already erected shed and carport.
On 12 May 2005, the Council replied requesting Mr Spalding to confirm that the shed would be used as an agricultural workers' shelter, as Mr Spalding had previously advised in his letter of 5 January 2005 and in his solicitor's letter of 2 July 2003. Mr Spalding so advised by letter dated 29 May 2005.
Accordingly, the Council on 9 June 2005 issued a building certificate for the shed but noted that the shed is to be used as a shelter in association with normal agricultural activities being carried out on the property and that "development consent will be required for the installation of any amenities such as toilet, shower or meals area as these facilities are not consistent with the building's use as a shelter."
On 29 August 2005, Mr Spalding lodged a development application to install a wet area and shower facilities and sanitation facilities in the shed (DA 108/2006). On 6 October 2005, the Council responded requesting Mr Spalding to provide information including on why he requires on-site toilet facilities, details of the agricultural activity currently being undertaken and the number of workers to support this activity.
Mr Spalding responded by email on 11 October 2005 providing the information sought by the Council. In his email, Mr Spalding stated that the on-site toilet facilities were for the workers for the proposed commercial plant nursery and fruit crop production being conducted on the land.
On 28 November 2005, the Council granted consent to DA 108/2006 for the addition of sanitation facilities to the shed. A construction certificate may have been issued in 2006 for the addition of sanitation facilities to the shed.
By early March 2010, the Council had expressed concern to Mr Spalding that the shed had furniture and bedding and was being used for habitable purposes and that in these circumstances the Council could not issue an occupation certificate. On 13 March 2010, Mr Spalding emailed Mr Green, the Council's building inspector, noting this concern and stating that the land has development consent for a wholesale plant nursery and that the furniture is for that purpose. Mr Spalding asked what furniture the Council wanted removed.
On 15 March 2010, Mr Green responded saying that the bed is the main item that needs to be removed as well as any other items solely associated with sleeping in the building. Mr Green said he cannot issue an occupation certificate for a building that contravenes the development consent as it is being used for habitation purposes. In addition the building is in a bushfire prone area and has not been designed in accordance with the relevant standards for a habitable building in a bushfire prone area. Mr Green said he would be negligent in issuing an occupation certificate for a building used for habitation in these circumstances.
On 16 March 2010, Mr Spalding replied to Mr Green saying, amongst other matters, that the bed is there for the purposes of the approved business. Its purpose is not for inhabiting but for working. However, Mr Spalding said he would remove the bed.
On 31 March 2010, Mr Green responded to Mr Spalding dealing with the bushfire issue and confirming that he would organise a final inspection for early April 2010.
On 14 April 2010, the Council granted an occupation certificate for the addition of sanitation facilities to the shed.
In December 2010 to January 2011, Mr Spalding met with a Mr Stevenson, a real estate agent with Century 21, to appraise the remaining properties Mr Spalding had in the Bundabah area for sale. In the course of their discussions, the topic of letting Lot 19 was raised. Mr Spalding said he had experienced vandalism and wanted an occupant in the shed to protect the property until it could be sold.
Mr Spalding signed, on 29 March 2011, an Exclusive Management Agency Agreement (Residential) with Century 21. The real estate agent found a residential tenant willing to pay $200 per week rental. The Residential Tenancy Agreement letting the property to the tenant for six months at a rent of $200 per week was executed by an employee of Mr Stevenson's company on behalf of the defendant on 14 April 2011.
The shed has not been built to comply and does not in fact comply with relevant building standards, including the Building Code of Australia for a dwelling house (Class 1a building).
Mr Green, a building inspector with the Council, identified the noncompliances with the Building Code of Australia for a Class 1a building (a dwelling) as including: inadequate surface water drainage; no evidence of damp proofing; no evidence of adequate steel reinforcement; inadequate site classification information; insufficient information about the steel frame; inadequate roof cladding; inadequate smoke alarms; failure to comply with bushfire requirements (open forest within four metres of the building); inadequate water supply in the event of bushfire; failure to provide a perimeter road or trail; inadequate inner protection area (in the event of bushfire); inadequate water and gas supply pipes (in the event of fire); inadequate ventilation for bathroom; and inadequate energy efficiency.
Mr Spalding contested in his written statement tendered at the sentence hearing that the shed was as defective as the Council's building inspector had said. However, Mr Spalding is not a qualified building inspector and his opinions are not expert evidence. I accept Mr Green's expert opinion evidence in preference to Mr Spalding's evidence as to the deficiencies of the shed in terms of the Building Code of Australia.
The electrical work in the shed is also deficient. Mr Barlin, a regional electrical inspector employed by Essential Energy, inspected the shed and identified numerous deficiencies which could pose a risk of electrical shock or electrocution to persons on or entering the property in certain circumstances (in the report attached to a statement of agreed facts). Again, Mr Spalding contested the deficiencies but I accept Mr Barlin's expert opinion evidence in preference to Mr Spalding's evidence as to the deficiencies of the electrical work in the shed.
Sentencing considerations
The sentence I impose should reflect both the objective gravity of the offence and the personal or subjective circumstances of Mr Spalding. I am required to consider, and have considered, the factors of relevance in s 21A of the Crimes (Sentencing Procedure) Act 1999 as well as general principles of sentencing. The purposes for which I may impose a sentence are those set out in s 3A of the Crimes (Sentencing Procedure) Act . Paragraphs (a), (b), (e), (f) and (g) are relevant and are purposes of sentencing for which I impose the sentence in this case.
Objective circumstances
Nature of offence and maximum penalty
The system of planning and development control established by the EPA Act depends on persons taking steps to obey the law by ascertaining when development consent is required and then obtaining the development consent before carrying out the development. Mr Spalding's actions in carrying out development without first applying for and obtaining consent undermines the system of planning and development control. The actions circumvented the integrity of the system and the process of careful, expert consideration that occurs on the lodgment of a development application, including consideration of the issues of the permissibility of the development having regard to the minimum lot size development standard, the compliance with the relevant standards under the Building Code of Australia, and the health and safety of the occupants and other entrants.
The maximum penalty for the commission of the offence is $1.1 million. The maximum penalty is the public expression of the New South Wales Parliament of the seriousness of the offence. There is, however, a broad spectrum of conduct that can give rise to an offence under s 125(1) of the EPA Act .
Objective harmfulness of the offence
The commission of the offence has not caused actual harm to the environment or to human health and safety. However, during the six months period whilst the shed was being used as a dwelling house, it posed some potential risk to human health and safety by reason of the non-compliances with the Building Code of Australia, including inadequate protection from bushfire, and the risk of electric shock and electrocution by reason of the deficiencies in the electrical work.
I accept the evidence of Mr Green, the Council's building inspector, in his affidavit and oral evidence and Mr Barlin, Essential Energy's regional electrical inspector, in his report, as to the deficiencies and potential risks posed by the deficiencies in the building and electrical work of the shed.
If Mr Spalding had complied with the law and sought development consent, these potential risks could have been considered and addressed, including by refusing consent or by granting consent but subject to conditions which prevented or mitigated to an acceptable level any potential risks and adverse impacts.
Those potential risks existed whilst the shed was occupied as a dwelling house. After that residential occupation ceased, so did the potential risks for residential occupants. The shed has been approved as fit for the purpose of a shelter and facilities for workers for the approved wholesale nursery.
In the circumstances, I do not find that the potential risk of harm was substantial and hence an aggravating factor for the purposes of s 21A(2)(g) of the Crimes (Sentencing Procedure) Act .
State of mind and reasons for offending
The offence against s 125(1) of the EPA Act is a strict liability offence and hence the state of mind of the offender in committing the offence is not an element of the offence. Nevertheless, the offender's state of mind in committing the offence, and the reasons for committing the offence, can increase the seriousness of the offence. A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one not so committed. A failure to heed advice or warnings, including from regulatory authorities, will be an aggravating feature. Similarly, an offence committed to make a profit, or to save incurring an expense, or to avoid the cost of obtaining a statutory permission such as a development consent, increases the seriousness of an offence. Offenders should not profit from crime.
I find that Mr Spalding knew, at all material times, that development consent was required to use the shed as a dwelling house and that he had not obtained consent for the erection or use of the shed as a dwelling house. Mr Spalding was well aware of these facts from his dealings with the Council since 2002. Mr Spalding knew of the Council's concern that he would fit the shed out and use it as a dwelling house. All of the Council's actions in issuing orders, requiring assurances and imposing conditions on various approvals were intended to prevent the modification and use of the shed as a dwelling house. Mr Spalding repeatedly assured the Council that he knew use of the shed as a dwelling house would not be legal and that he did not intend to do so, but rather would only use it as a shelter and to provide facilities for workers for his proposed horticultural activities.
In his written statement tendered at the sentence hearing, Mr Spalding said that he assumed that the occupation certificate he obtained in 2010 allowed the shed to be occupied and that the only way for an occupation to be carried out was with a lease. He said that he believed this was allowable and that is why he signed the residential tenancy agreement to let the premises to a tenant. He asserted that he had made an honest and reasonable mistake (as an explanation for his conduct but not as a defence).
In his oral evidence, however, Mr Spalding modified this statement, upon being shown in cross-examination the letters and emails exchanged over the years. He now accepts that he knew but still he maintains that at the time in early 2011 he made a mistake and thought that what he was doing was allowable.
I do not accept Mr Spalding's evidence that he made a mistake about the lawfulness of allowing the use of the shed as a residence.
First, it is inconsistent with the history of Mr Spalding's dealings and communications with the Council. He knew well that he did not have a development consent either to erect or to use the shed as a dwelling house. The two development consents he had been granted, the first in 2003 for the conduct of a wholesale nursery on the land and the use of the shed he had already erected illegally for that purpose and the second in 2005 for the addition of sanitation facilities to the shed, did not authorise the use of the shed for the purpose of a dwelling house.
Secondly, Mr Spalding had been warned by the Council that occupation of the shed as a dwelling house would be illegal. The Council had repeatedly raised concerns about the shed being lived in as a residence from 2002 onwards. The Council sought and Mr Spalding gave assurances that the shed would not be used as a residence. The Council had issued notices of intention to issue orders under the EPA Act to demolish the shed on the grounds that it had been erected without development consent. Mr Spalding and his solicitor made submissions to allow the shed to remain. Critical to their arguments was that the shed was to be used only as a workers' shed for the purpose of the horticultural activities proposed for the land. Mr Spalding sought and obtained a building certificate for the illegally erected shed. The Council had deferred issuing various consents and certificates until Mr Spalding confirmed he would not use the shed as a dwelling house. The most recently expressed concern and assurance was in March 2010 before the occupation certificate on which Mr Spalding relied was issued. Mr Spalding knew and sought to allay the Council's concern that the shed was being and would be used for habitation as a residence.
Thirdly, the occupation certificate is clear on its face. The building to which the occupation certificate applies is stated to be only, "addition of sanitation facilities to shed", not the whole shed. The "building use" is also defined in the occupation certificate only as, "addition of sanitation facilities to shed".
The occupation certificate followed a development consent and a construction certificate for exactly the same use - addition of sanitation facilities to shed. Prior to the development consent for that use being granted, Mr Spalding had been required by the Council to provide information on his reasoning for acquiring the addition of sanitation facilities to the shed. Mr Spalding expressly stated they were for the purpose of providing facilities for workers for his proposed horticultural activities on the land. Hence, the only occupation permitted by the occupation certificate was by the workers using the shed and its facilities whilst working on the land.
Fourthly, Mr Spalding elsewhere in his written statement tendered at the hearing, in explanation of why the shed did not comply with the Building Code of Australia for a dwelling, said that "the shed was never intended to be used as a dwelling". Mr Spalding knew that the shed had not been approved or built as a dwelling house.
Fifthly, Mr Spalding did not make a mistake in entering the various agreements to let the land and shed for occupation as a dwelling house. He knew that both the Exclusive Management Agency Agreement (Residential) with the real estate agent and the subsequent residential tenancy agreement with the tenant concerned the letting of his land and shed as a residence. The documents are plain on their face. Clause 29 of the Exclusive Management Agency Agreement (Residential) is a warranty by Mr Spalding that there is no legal impediment to occupation of the premises as a residence. Yet Mr Spalding admitted that there was an impediment in that there was no development consent for occupation as a residence. Mr Spalding's evidence is that he wanted to rent the property to someone to ensure the upkeep of the property and prevent vandalism until it was sold. Mr Spalding received rent from the residential tenant.
Mr Spalding, therefore, made a deliberate decision to modify the shed to adapt it for use as a dwelling house and to let it to a tenant at commercial rent for use as a residence, without applying for and obtaining development consent, in the knowledge that to do so was illegal and despite warnings from the Council.
Mr Spalding also intended to and did profit from his illegal conduct by charging and receiving rent of $200 per week for up to six months, a total of up to around $5,000.
The commission of the offence intentionally and for a profit increases the objective seriousness of the offence.
Subjective circumstances
Lack of prior criminality
Mr Spalding does not have any prior convictions for any environmental offences.
Plea of guilty
Mr Spalding has pleaded guilty at the first return of the summons before the Court. He has agreed to an early sentence hearing. His early plea of guilty should attract the maximum discount of 25 per cent for the utilitarian value of a plea of guilty.
Assistance to authorities
Mr Spalding has cooperated with the Council upon being informed by the Council of the illegality and afterwards. Upon the Council investigating the offence, Mr Spalding took action to have the tenant move elsewhere. This took some time due to the unavailability of suitable alternative accommodation for the tenant. However, Mr Spalding did endeavour to rectify the situation promptly. Mr Spalding pleaded guilty at the first opportunity. He cooperated with the prosecutor for an expedited sentence hearing. He has agreed on a statement of facts. He has agreed to pay the Council's legal costs.
Contrition and remorse
Mr Spalding's actions after the Council investigated the offence and after it brought proceedings, including his plea of guilty and assistance to the Council, are consistent with Mr Spalding being contrite and remorseful.
Mr Spalding's remorse for his actions, acceptance of responsibility for his actions, and the cessation of use of the shed as a dwelling house, make it less likely that Mr Spalding will re-offend in the future.
Capacity to pay fines
Mr Spalding said in his written statement tendered at the sentence hearing that his financial circumstances at present are limited. He is unemployed. He was made redundant in October 2002 for recurring physical injury. He said he has survived off the redundancy payment since that time. He has used his redundancy payment and his superannuation to try to establish a wholesale plant nursery at Bundabah. He purchased and prepared lots adjoining and in the vicinity of the land. He built an office and machinery shed on other land and the workers' shelter on the subject land. He prepared a road suitable for the traffic of trucks. He has fenced and installed irrigation systems. He has suffered damage and loss by vandalism and break-ins.
Mr Spalding said he also has suffered loss by devaluation and has been forced to sell most of his assets by reason of the ongoing global financial crisis. Mr Spalding said he has sold some of the lots and transferred others to his former partner in partial satisfaction of debts he owes the partner (around $400,000).
Mr Spalding has put the subject land, Lot 19, and the adjoining Lot, Lot 18, on the market for sale. He is asking $180,000 for both but he is not hopeful of attracting that price. He has also placed a nearby Lot, Lot 14, on the market in the hope that it will be sold and allow him to pay the fine and associated legal costs ordered by the Court. The real estate agent in a Sales Inspection Report and Exclusive Sales Agreement (Residential) offered an opinion that the current reasonable selling price of that property is $30,000 to $35,000.
Mr Spalding says he anticipates being eligible for a disability pension in 2014 by reason of severe arthritis in his ankles and limited use of his right shoulder.
Apart from these general statements, Mr Spalding has not tendered any financial accounts or statements, proving his assets and liabilities, income or expenditure, or bank balance.
Mr Spalding submits his limited financial capacity to pay, together with the fact that he will be ordered to pay the Council's costs of the proceedings, should be taken into account in fixing the amount of any fine under s 6 of the Fines Act 1996.
Section 6 of the Fines Act requires the Court, in fixing the amount of any fine, to consider the financial means of the offender. The procedure is for the Court, once it determines that a fine should be imposed, to determine the appropriate amount by reference to the gravity of the offence for which it is imposed. If the Court is satisfied that the offender would be unable to pay the amount determined, the Court may reduce the amount of the fine to take account of the offender's means and impecuniosity.
Appropriate penalty
The sentence of the Court needs to publicly denounce Mr Spalding's conduct and to ensure he is held accountable for his actions and is adequately punished. The sentence must deter Mr Spalding from being tempted to use the shed again as a dwelling house either by renting it to others or using it himself, without first applying for and obtaining development consent for that purpose. Most importantly, the sentence needs to operate as a deterrent to others who might be tempted to similarly carry out development without development consent, including building then using sheds as a dwelling house without consent.
Having regard to the purposes of sentencing, I find it is appropriate in the circumstances of this case to convict Mr Spalding of the offence as charged and to impose a fine, being the prescribed penalty for the offence.
The amount of the fine should be determined by an instinctive synthesis of all of the relevant objective and subjective circumstances of the offence and the offender.
Accordingly, I take into account the objective circumstances of the offence I have discussed earlier, as mitigated by the subjective circumstances of Mr Spalding that I have also discussed. I consider the appropriate amount of the fine should be $20,000. This amount should be discounted by 25 per cent to take account of the utilitarian value of Mr Spalding's early plea of guilty. This results in a fine of $15,000.
Having assessed the appropriate amount of the fine, it is necessary to assess whether Mr Spalding has the financial means to pay a fine in that amount. Having regard to the information available concerning Mr Spalding's assets and income, I consider Mr Spalding would be unable to pay a fine in the amount of $15,000 as well as an order for costs which the Council estimated might be in the range of $35,000 to $40,000. In these circumstances, I consider I ought to reduce the amount of the fine to $7,500.
The fine is required to be paid within 28 days of the sentence being imposed (s 7 of the Fines Act ). However, the Registrar of the Court may allow further time for the payment of the fine (s 10 of the Fines Act ).
I consider it is appropriate for there to be an order under s 257B of the Criminal Procedure Act 1986 that Mr Spalding pay the prosecutor's costs. The prosecutor ought to be compensated for the costs of bringing the prosecution which is in the public interest. The amount of the costs will need to be agreed or assessed.
Orders
The Court orders:
1. Mr Spalding is convicted of the offence against s 125(1) of the Environmental Planning and Assessment Act 1979 as charged.
2. Mr Spalding is fined the sum of $7,500.
3. Pursuant to s 257B of the Criminal Procedure Act 1986 , Mr Spalding is to pay the prosecutor's costs of the proceedings as agreed or assessed.
Decision last updated: 09 January 2012
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