Jenner v Richmond Valley Council

[2016] NSWLEC 115

Land and Environment Court

New South Wales

Medium Neutral Citation:	Jenner v Richmond Valley Council [2016] NSWLEC 115
Hearing dates:	22 August 2016
Date of orders:	05 September 2016
Decision date:	05 September 2016
Jurisdiction:	Class 7
Before:	Pain J
Decision:	(1) The application for leave to appeal against conviction in Local Court matter no 2015/297505 is dismissed. (2) The application for leave to appeal against conviction in Local Court matter no 2015/292912 is dismissed. (3) The appeal against sentence in Local Court matter no 2015/297505 is dismissed. (4) The appeal against sentence in Local Court matter no 2015/292912 is dismissed. (5) The Appellant is to pay the Respondent’s costs of these leave applications and appeals within 60 days. (6) The exhibits are to be returned.
Catchwords:	APPEAL – leave to appeal against two convictions in local court – appeal against sentences in local court – defendant entered pleas of guilty in local court – miscarriage of justice justifying grant of leave to appeal not established – exercise of sentencing discretion to confirm magistrate’s decisions
Legislation Cited:	Crimes (Appeal and Review) Act 2001, ss 31, 32, 34, 36, 37, 39, 49, 70, 72 Crimes (Sentencing Procedure) Act 1999, ss 3A, 10, 21A Environmental Planning and Assessment Act 1979, ss 4, 76A, 125 Fines Act 1996, s 6 Protection of the Environment Operations Act 1997, ss 96, 97, 241, 321, Dictionary
Cases Cited:	Brown Brothers Waste Contractors Pty Ltd v Pittwater Council (2015) 90 NSWLR 717; [2015] NSWCA 215 Hamod v New South Wales [2011] NSWCA 375 Kwong v Baulkham Hills Shire Council [2008] NSWLEC 199 R v Hura (2001) 121 A Crim R 472; [2001] NSWCCA 61
Category:	Principal judgment
Parties:	Kevin Lindsay Jenner (Appellant) Richmond Valley Council (Respondent)
Representation:	COUNSEL: L Stephens (Appellant) M Seymour (Respondent)   SOLICITORS: N/A (Appellant) Hannigans Solicitors (Respondent)
File Number(s):	2016/148990 and 2016/149002
Decision under appeal	Court or tribunal: Casino Local Court Jurisdiction: Criminal Date of Decision: 20 January 2016 Before: Magistrate Heilpern File Number(s): 2015/297505 and 2015/292912

Judgment

1. The Appellant seeks leave to appeal against two convictions in the Local Court at Casino on 3 February 2016. The Appellant also appeals against the severity of two sentences imposed in the Local Court at Casino on 3 February 2016. All appeals can be heard together.

2. The Appellant was issued with two Penalty Infringement Notices (PINs) by the Respondent Richmond Valley Council (the Council) for carrying out development requiring development consent under s 76A of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) without consent, and for breaching the terms of a prevention notice issued under the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) in breach of s 97 of the POEO Act. Both PINs resulted from a noisy “doof” party held on the Appellant’s property in Seery Road Kippenduff on 3 and 4 July 2015. The Appellant wished to contest the PINs and commenced proceedings in the Local Court. The Appellant pleaded not guilty to both charges at the outset. In the Local Court on the day of trial on 20 January 2016 the Appellant changed his plea to guilty to the offence under the EPA Act. The magistrate imposed a penalty of $20,000 plus costs on 3 February 2016. The Appellant also changed his plea to guilty to the offence under the POEO Act. The magistrate imposed a penalty of $16,000 plus costs on 3 February 2016.

Crimes (Appeal and Review) Act 2001

3. These appeals are enabled by the Crimes (Appeal and Review) Act 2001 (NSW) (Appeals and Review Act). It provides:

31 Appeals as of right

(1)   Any person who has been convicted or sentenced by the Local Court with respect to an environmental offence may appeal to the Land and Environment Court against the conviction or sentence.

…

32 Appeals requiring leave

(1)   Any person who has been convicted by the Local Court, in the person’s absence or following the person’s plea of guilty, with respect to an environmental offence may appeal to the Land and Environment Court against the conviction, but only on a ground that involves a question of law alone, and only by leave of the Land and Environment Court.

…

34 Lodgment of appeals and applications for leave to appeal

…

(4) An application for leave to appeal must state the general grounds of the application and, in the case of an application under section 33, must state the reasons why an appeal or an application for leave to appeal was not made within the time allowed by section 31 or 32, as the case may be.

…

36 Determination of applications for leave to appeal

(1)   The Land and Environment Court may determine an application for leave to appeal by dismissing the application or by granting leave to appeal.

(2)   Leave to appeal must not be granted in relation to an application under section 33 unless the Land and Environment Court is satisfied that it is in the interests of justice that leave be granted.

(3)   If the Land and Environment Court dismisses an application for leave to appeal, it may make such order as to the costs to be paid by the appellant as it thinks just.

(4)   If the Land and Environment Court grants leave to appeal, it may proceed to hear the appeal immediately or it may adjourn the appeal proceedings.

37 Appeals to be by way of rehearing on the evidence

(1)   An appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, except as provided by section 38.

(2)   Fresh evidence may be given, but only by leave of the Land and Environment Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given.

(3)   The parties to an appeal are each entitled to be provided with one free copy of the transcripts of evidence relevant to the appeal and, if fresh evidence is given, one free copy of the transcript of the fresh evidence.

39 Determination of appeals

…

(2)   The Land and Environment Court may determine an appeal against sentence:

(a)   by setting aside the sentence, or

(b)   by varying the sentence, or

(c)   by dismissing the appeal.

…

Protection of the Environment Operations Act 1997

4. Relevant sections of the POEO Act provide:

96 Preventive action

(1)   Application of section

This section applies when the appropriate regulatory authority reasonably suspects that an activity has been or is being carried on in an environmentally unsatisfactory manner at any premises or by any person (otherwise than at premises).

(2)   Prevention notices

The appropriate regulatory authority may, by notice in writing, do either or both of the following:

(a)   direct the occupier of the premises,

(b)   direct the person carrying on the activity (whether or not at premises),

to take such action, as is specified in the notice and within such period (if any) as is specified in the notice, to ensure that the activity is carried on in future in an environmentally satisfactory manner.

…

(4)   Occupier’s duty

If the occupier who is given a notice is not the person carrying on the activity, the notice is taken to require the occupier to take all available steps to cause the action to be taken.

…

321 Service of notices

(1)   For the purposes of this Act, any notice or other document may be issued or given to a person, or may be served on a person:

…

(c)   by posting it duly stamped and addressed to the person at the place last shown in the records of the appropriate regulatory authority as the person’s place of residence or business, or

…

Dictionary

In this Act:

activity means an industrial, agricultural or commercial activity or an activity of any other nature whatever (including the keeping of a substance or an animal).

…

occupier of premises means the person who has the management or control of the premises.

…

Environmental Planning and Assessment Act 1979

5. Relevant sections of the EPA Act provide:

4 Definitions

(1)   In this Act, except in so far as the context or subject-matter otherwise indicates or requires:

…

development means:

(a)   the use of land, and

…

but does not include any development of a class or description prescribed by the regulations for the purposes of this definition.

…

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.

…

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.

…

Evidence

6. The Appellant tendered a bundle of documents as Exhibit A that included the Local Court transcripts, the Local Court judgment, the penalty notices and the court attendance notices issued to the Appellant and the statements of facts prepared by the Council for the Local Court hearings.

7. The material provided to the magistrate for sentencing (Exhibit A, tab 10) included aerial photographs of the site, a title search of the property and extracts from the Richmond Valley Local Environmental Plan 2012 including land zoning maps. Also in the bundle were emails between Council officers in November 2013 regarding community complaints about “doof” parties, a complaint letter regarding a Rabbits Eat Lettuce event sent to the Council on 20 March 2014 and a letter of concern dated 7 April 2014 from the NSW Police Richmond Local Area Command to the Council regarding a proposed Rabbits Eat Lettuce festival, the Direction to Take Preventive Action issued to the Appellant on 16 May 2014, a record of the telephone call made by Amanda Johnson to Council on 3 July 2015, the PINs issued on 24 July 2015 and complaints made to the Council by members of the public in response to a development application lodged by Rabbits Eat Lettuce Pty Ltd. The Council prepared a statement of facts for both offences which were provided to the magistrate.

8. The Appellant provided to the magistrate two personal references on 3 February 2016 dating from 2012 and an email from Julius Koch to Amanda Johnson dated 12 November 2015 stating that he told the Appellant that he was planning a private party for members of a club and did not tell him that he intended to charge a fee at the entrance. A letter from the Appellant to the magistrate dated 24 January 2016 was also provided in which he described his love of nature, the environmental work he does and stated that he has always worked with the authorities in the past.

9. A chronology prepared by the Council based on evidence in Exhibit A together with summaries of the transcript of the Local Court proceedings on 18 November 2015, 20 January 2016 and 3 February 2016 follows:

1. On 24 October 2013 Council officers attended the Appellant’s property and spoke to him about the need to have consent to hold “doof” parties where amplified noise is created. This meeting was referred to in the Direction to Take Preventative Action sent to the Appellant by the Council on 16 May 2014.

2. In November 2013 a complaint was made to the Council about parties occurring in the area and amenity impacts and summarised in an email to Council staff.

3. In March 2014 a letter of complaint was sent to the Council regarding parties held by Rabbits Eat Lettuce occurring in the area and amenity impacts.

4. In April 2014 the Council received a letter from NSW Police Richmond Local Area regarding the proposed Rabbits Eat Lettuce music festival to be held at Seery Road Kippenduff. The Senior Constable raised issues relating to consumption of illicit substances, community safety and amenity impacts.

5. In December 2014 the Council received petitions with numerous signatures objecting to a DA lodged by Rabbits Eat Lettuce Pty Ltd on the basis of the amenity impacts caused by “doof” parties in the area.

6. On 16 May 2014 the Direction to Take Preventative Action was issued by Council under s 96 of the POEO Act to the Appellant.

7. On 3 July 2015 Amanda Johnson made a telephone call to Mr Radnidge Manager Assessment Environment and Regulation at the Council. The phone call was summarised in an email to other Council staff as follows:

Andrew,

I have been contacted this afternoon by Amanda Johnson regarding the reported ‘party’ planned for this weekend. She was adamant that it was a private party for people of a club they are involved with and is being held without an entry charge and is advertised on Facebook under neverendingbeatsclub. The director of the party is Julius Kosh [sic] and she says she is expecting approximately 200 people. I advised her we would assess the event and if appropriate we would fine them if it is an illegal activity. As discussed please investigate and report. I also reported the event to Erik Lamir and suggested that any Police action or complaints could adversely affect his soon to be lodged DA. Erik stated he had no control over the site owners but would contact them. [Contact number for the farm was provided].

8. The event the subject of these proceedings took place on 3 and 4 July 2015:

Mr Hanna Council’s Coordinator of Environment and Regulatory Control attended the event at Seery Road, Kippenduff on both days, as stated in the Statements of Facts that were before the magistrate. Mr Hanna gained entry to the site at approximately 7:00pm on 3 July 2015 and paid a $40 gate fee and was given a wristband. He observed a large number of people, vehicles and tents for camping, camp fires, amplified electronic music playing, a stage, a DJ setup and people dancing. He also observed a number of other structures such as tarpees and stalls. Mr Hanna left the site at 7:40pm and returned at midnight and observed that music and noise was still emanating from the site.

At around 1pm on 4 July 2015 Mr Hanna returned to the site and entered after showing his wristband. He observed a large number of people, tents and approximately 200 vehicles. The music at the site was clearly audible and people were dancing around the stage and DJ. There were also food stalls and other activities such as tightrope walking. Mr Hanna observed a physical altercation which caused a facial injury to an attendee. No ambulance was called and limited first aid was rendered.

9. On 27 July 2015 the two PINs were issued to the Appellant.

10. On 18 November 2015 both offences were listed before Magistrate Bugden at the Casino Local Court. A summary of the proceedings that day follows:

The magistrate on the basis of the Council’s solicitor’s submissions informed the Appellant that the maximum fine was $5,500 (TS 18/11/15, p 2, ln 22). The Appellant pleaded not guilty (TS 18/11/15, p 2, ln 29) and the matter was set down for hearing on 20 January 2016. The magistrate asked the Appellant whether he would engage a lawyer for the hearing and the Appellant stated that he preferred to do it himself (TS 18/11/15, p 3, lns 32-44). The Council’s solicitor requested that the magistrate give to the Appellant “the normal warning in regards to costs” (TS 18/11/15, p 3, lns 46-47). The magistrate informed the Appellant that,

[t]his is not a criminal matter, you can’t get a gaol sentence but it’s a civil matter and what the prosecutor is doing is doing you a favour actually. She’s saying well if it’s a civil matter and you lose there’s somewhere between a possibility and a probability that the Council will ask for costs against you. That’s what the prosecutor is saying.” (TS 18/11/15, pp 3-4, lns 49-3).

The magistrate advised the Appellant that he might find it “of some advantage” if he spoke to a lawyer (TS 18/11/15, p 4, lns 7-9).

11. On 20 January 2016 the matters were heard before Magistrate Heilpern at the Casino Local Court. A summary of the proceedings follows:

The Appellant made an application for adjournment as he did not “have all [his] paperwork prepared properly yet” (TS 20/01/16, p 1, lns 36-43). The magistrate refused the application as there were witnesses from the Council present to give evidence. That the Appellant’s paperwork was not prepared did not mean that the matter should not go ahead (TS 20/01/16, p 2, lns 1-4). The Council’s solicitor informed the court that the Appellant had not received a brief of evidence as it was not required, but stated that she was going to give him a statement (TS 20/01/16, p 2, lns 26-29). The magistrate stated in response that,

I appreciate that [that the Council would not be seeking the maximum penalty] but what I’m getting at is due process needs to be complied with as much as possible so if you can get Mr Jenner the statement as soon as possible so he can have a chance to read it lest he want to change his plea or consider the material in it… (TS 20/01/16, p 2, lns 37-42).

The Council’s solicitor explained to the Appellant that if successful the Council would be seeking a publication order against him (TS 20/01/16, p 2, lns 44-48). The magistrate informed the Appellant that as he elected to bring the PINs to court the maximum penalty under the Act or the jurisdictional limit of the court applies. His Honour stated, “[s]o once you elect to bring a matter to court then that’s a one-way street and the amount that is involved in the tickets is no longer relevant to the consideration if you’re found guilty of any fine that does apply...” (TS 20/01/16, p 3, lns 11-28). The Appellant replied, “[e]xcuse me I never realised that the fine could go up from what it is, no-one’s ever – I never read that – that was never explained to me” (TS 20/01/16, p 3, lns 30-31). The Council’s solicitor replied, “[i]t was your Honour on the last occasion with the visiting magistrate.” (TS 20/01/16, p 3, lns 33-34). The magistrate replied, “Magistrate Budgen’s notes indicate that he warned you regarding the maximum penalty and also that he warned you regarding the costs, that is the solicitor’s costs, could be payable to council…” (TS 20/01/16, p 3, lns 39-42).

The matter was stood down until 12 o’clock. After the adjournment the Council’s solicitor stated that the Appellant had “sought independent legal advice” (TS 20/01/16, p 3, lns 48-40). An exchange then took place between the Appellant and the magistrate:

APPELLANT: Well I thought and I tried to act within the law and I realised that I actually failed by allowing the event to occur on that property as such. I did ring them on the day and tried to – I realise I am guilty of being the landowner and I’ve got to be responsible that that doesn’t ever happen and also that -

HIS HONOUR: Just let me stop you there. Are you entering a plea of guilty.

APPELLANT: Yes I am yes.

HIS HONOUR: To both matters.

APPELLANT: Yes.

HIS HONOUR: Pleas of guilty are entered on the day of hearing.

(TS 20/01/16, p 4, lns 1-14).

The matter then proceeded to a sentencing hearing. The Appellant made submissions after the Council’s solicitor and stated that he believed there were about 300 people at the party and that there were not 200 cars. He stated that,

…I thought [that] I was acting within the law by allowing them to have that event there and I’d rung council to make sure that I would be and Paul did say if that’s the way it is it would be within the law (TS 20/01/16, p 5, lns 41-45).

The Appellant stated that he thought it was to be a private party and that he then realised that it was against the law and that he was responsible because it occurred on his land. He stated that he had been working with Council all along and that he has approval for events planned in the future. On the matter of noise the Appellant stated that during one party “the police called us and asked that the music be turned down” which they did. He said that they now have a decibel counter to make sure the sound levels are acceptable (TS 20/01/16, p 6, lns 4-33).

The magistrate asked the Appellant what his interest is in the parties and the Appellant replied that he owns the property and that he was only renting his property to people to have a party on, and that now they have a music festival that is approved as a yearly event. He stated that he gets a fee for allowing them to use the property, he does not hold the event or know anyone in the organisation. He went on to say that, “I never did hold an event all I did was allow them to use my land, I didn’t realise it was a crime but I do now” (TS 20/01/16, p 6, lns 35-43). The magistrate asked the Appellant to address him on his means to pay a fine, to which the Appellant made some statements about his finances (TS 20/01/16, p 8, lns 31-37).

The magistrate put it to the Council’s solicitor that it should be recorded in the publication notice that the Appellant pleaded guilty when the matter was heard not that he defended the infringements and the Council’s solicitor agreed (TS 20/01/16, p 9, lns 1-5). The Appellant then stated that

…we don’t actually hold the party but I do realise now that as the landowner you’re fully responsible… I do realise the severeness [sic] of it now (TS 20/01/16, p 9, lns 7-13).

The Appellant made a request to say one more thing –

[y]eah just when I had the conversation outside about pleading guilty and I realised because I am the landowner that I am guilty of allowing that to happen on my property but I was under the belief that council here – the lady here wouldn’t you know go for more than the five and a half thousand plus her legal costs you know… I didn’t realise that she was going to try and build – make a whole new case against me (TS 20/01/16, p 10, lns 11-20).

The Council’s solicitor objected to that submission on the basis that she had informed the Appellant that it was not up to her but up to the magistrate as the matter had been brought to court (TS 20/01/16, p 10, lns 24-25).

12. The matters were adjourned until 3 February 2016 for judgment at the Casino Local Court. At the commencement of the sitting the Appellant submitted personal references to the court, and requested to say one more thing, as follows:

When I actually went home last time in my files I found a letter that I’d never ever seen or read before, I know it sounds ridiculous and I can’t believe that happened and when I was here last time I didn’t actually understand whether I was innocent, guilty, what I was being charged for, what I – any of it, I never knew about the fine getting changed. When I read this matter I understood everything. If I had have read that letter earlier I would’ve never allowed that party to happen and even if it did get to that stage I would’ve just paid the fine straight up, I wouldn’t have even come to court but before that I didn’t understand anything about what was going on till [sic] I read that letter and then I understood everything. I went and made a personal apology to Andrew Hanna because I could see where they were coming from, before I didn’t understand (TS 03/02/16, p 1, lns 34-45).

The magistrate stated that he had read the references and then read his written reasons.

Local Court decision

10. In his written judgment handed down on 3 February 2016 Magistrate Heilpern provided reasons for his decision on the sentences. His Honour made it clear that the penalty was only directed to “a landowner who allows his land to be used for a purpose absent the appropriate planning consent” and not the entire “bush doof” movement. His Honour outlined the importance of upholding the planning scheme to preserve community safeguards, the peaceful enjoyment of land and to prevent damage to the environment. It was also noted that people who choose to live in remote areas generally do so for the reason that they enjoy peace and quiet, and that people who attend festivals deserve to have the appropriate safeguards in place. The court noted that the maximum penalties for the offences reflected the will of Parliament to set high penalties for breaches of the law that damage the environment and the planning scheme. His Honour stated that by electing to bring the matter to court the Appellant took a significant risk and escalated his exposure to a very large penalty. The judgment records that the court had regard to the factors in ss 3A and 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) and s 241 of the POEO Act and that there was an overlap between the charges that would be accounted for in the imposition of the penalties.

11. His Honour stated that of particular relevance was that the POEO Act offence was a wanton disregard of a notice issued by Council, that it was committed for financial gain, and that there was disregard for public safety. Mitigating factors were the lack of prior convictions, unlikelihood of reoffending and the guilty plea. In terms of s 3A of the CSP Act, his Honour considered specific and general deterrence was relevant as well as harm done to the environment and the local community and the need to denounce the Appellant’s conduct. The court found that the Appellant had control over the causes leading to the commission of the offence, that the offence was foreseeable, and that there was considerable risk to the attendees and the local community and the environment. The guilty plea attracted a discount of 10% rather than the full 25% as it was entered on the day of the hearing.

12. In respect of the EPA Act offence, the magistrate noted that there were similar aggravating and mitigating factors and stated that any effect on the environment would have been “passing, but significant”. The harm done to the regulatory system of development control was acknowledged in allowing the event to take place without seeking approval. The magistrate found that the Applicant had not been negligent or reckless but deliberate in allowing his land to be used for development for which there was no consent. The offence was committed for financial gain and was of medium objective seriousness.

13. The Appellant was fined $16,000 for the POEO Act offence and $20,000 for the EPA Act offence which was discounted by 10% for the guilty plea and also 30% to take into account the overlapping features of the offences. A publication order was also made.

Conviction appeals

14. An appeal in relation to a conviction following a plea of guilty in the local court is only permitted on a ground that involves a question of law alone and only with leave of the Court as stated in s 32 of the Appeals and Review Act.

Appeal grounds

15. The Appellant’s written submissions contained matters identified as appeal grounds at pars 16 and 17. As advised in the course of the hearing, the numerous errors of law attributed to the magistrate were not matters which the magistrate made any findings about because the Appellant pleaded guilty to both charges. The magistrate presided over a sentence hearing not a contested trial on 20 January 2016 and did not need to make any legal determinations identified by the Appellant. As best as I can understand the Appellant’s case, the matters identified in pars 16 and 17 of the submissions are legal arguments that he would wish to make at any retrial and would result in a finding of not guilty because the charges were legally defensible. The application for leave to appeal against conviction is not supported by grounds identifying questions of law alone which arise from any determinations by the magistrate. That presents one difficulty for granting leave as the decision to grant leave is usually informed by the nature of the questions of law alone alleged.

Should leave to appeal be granted?

16. The parties disagreed about what threshold the Appellant must satisfy in order for leave to appeal to be granted in the conviction appeals. The Appellant relied on Hamod v New South Wales [2011] NSWCA 375 at [309]-[316] where Beazley JA (Giles and Whealy JJA agreeing) identified the responsibilities of a judge where a litigant is self-represented, stating at [309]:

309   Courts have an overriding duty to ensure that a trial is fair: Dietrich v R [1992] HCA 57; 177 CLR 292. This entails ensuring that the trial is conducted fairly and in accordance with law: MacPherson v R [1981] HCA 46; 147 CLR 512 per Gibbs CJ and Wilson J at [16] 525. The duty reposes in the individual judicial officer hearing a case. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented: R v Zorad (1990) 19 NSWLR 91 at 94–95. In MacPherson Mason J, at [31] 534, noted that:

A trial in which a judge allows an accused to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as “fair”.

17. Hamod was a civil case albeit in the context of considering a malicious prosecution. The Appellant also relied on Brown Brothers Waste Contractors Pty Ltd v Pittwater Council (2015) 90 NSWLR 717; [2015] NSWCA 215 where the Court of Appeal had to consider whether the appellant’s guilty plea could be characterised as genuine admissions of guilt by persons in possession of all relevant facts or whether it was the result of reliance on imprudent or inappropriate legal advice at [156]-[164].

18. I agree with the Council’s submission relying on R v Hura (2001) 121 A Crim R 472; [2001] NSWCCA 61 at [32] that the threshold requires consideration of whether a miscarriage of justice occurred. Hura considered a broadly similar circumstance of whether a plea of guilty could be set aside when entered in the course of a trial and accepted by the judge. Chief Justice Spigelman stated (Simpson J and Carruthers AJ agreeing):

Miscarriage of justice

32   The second ground of appeal alleges a miscarriage of justice. There are exceptional cases in which this Court will set aside a conviction following a plea. The relevant authorities have recently been considered in this Court in R v Toro-Martinez (2000) 114 A Crim R 533. A number of circumstances have been identified when this Court will act, notwithstanding a plea of guilty:

• where the appellant “did not appreciate the nature of the charge to which the plea was entered”: Ferrer-Esis (1991) 55 A Crim R 231 at 233.

• where the plea was not “a free and voluntary confession”: Chiron at 220 D-E).

• the “plea was not really attributable to a genuine consciousness of guilt”: Murphy [1965] VR 187 at 191.

• where there was “mistake or other circumstances affecting the integrity of the plea as an admission of guilt”: Sagiv (1986) 22 A Crim R 73 at 80.

• where the “plea was induced by threats or other impropriety when the applicant would not otherwise have pleaded guilty... some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt”: Cincotta (Court of Criminal Appeal, NSW, No 60472 of 1995, 1 November 1995).

• the “plea of guilty must either be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt”: Maxwell at 511; 186-187.

• if “the person who entered the plea was not in possession of all of the facts and did not entertain a genuine consciousness of guilt”: Davies (1993) 19 MVR 481. See also Ganderton (unreported, Court of Criminal Appeal, NSW, No 60364 of 1998, 17 September 1998) and Favero [1999] NSWCCA 320.

19. Hura was applied in this Court in Kwong v Baulkham Hills Shire Council [2008] NSWLEC 199 at [6] in circumstances very similar to this matter. Justice Jagot also identified that in addition to the matters in Hura in [32] such leave applications should be approached with circumspection given the public interest in the finality of litigation.

20. The questions in the appeal articulated by the Council based on the submissions of the Appellant were, was there a duty on the magistrate where a defendant was not legally represented to articulate everything about the charge before him and understand everything the defendant was thinking before accepting a plea of guilty? Should there have been an adjournment on 20 January 2016 when the Appellant sought one early in the morning? Should the magistrate have not accepted guilty pleas because it was legally impossible for the Appellant to be convicted? While I consider these questions do raise the matters referred to in the Appellant’s submissions, the overarching issue I will address is whether the conduct of the Local Court proceedings was so unfair to the Appellant that to require him to maintain the pleas of guilty by refusing leave to appeal against the convictions constitutes a miscarriage of justice. In considering that issue the matters identified by the Council will be addressed.

21. The Appellant submitted that procedural fairness was not accorded to him as a self-represented litigant on 18 November 2015 and 20 January 2016. The Appellant asserted that on 20 January 2016 the magistrate failed to inform him of his rights to withdraw a plea before sentence and had a duty to do so. The Appellant submitted the pleas of guilty were equivocal and demonstrated that he was mistaken about the law. His statements show that he had no consciousness of guilt when he entered the guilty pleas. He should have been granted an adjournment to obtain legal advice when sought on 20 January 2016. He pleaded guilty on the basis that he was a landowner which was not an element of either charge. Further, he was misinformed on 18 November 2015 by the magistrate and prosecuting solicitor about what the maximum fine was.

22. The Local Court proceedings should be viewed as a whole. The Appellant chose to challenge in the Local Court both PINs he had received from the Council in relation to the “doof” party held at his property on 3 and 4 July 2015 and pleaded not guilty to the two charges. The Appellant was incorrectly informed by the presiding magistrate on 18 November 2015 that the maximum penalty overall for both offences was $5,500 and that these were civil matters rather than criminal as identified in the summary of that day above in par 9(10). The Appellant was told that legal costs would be claimed by the Council. The matter was set down for a contested hearing on culpability on 20 January 2016. Early on 20 January 2016 in the Local Court the Appellant’s request for an adjournment to another day so that he could get his paperwork together was denied for the reasons given by the magistrate summarised above in par 9(11). The Appellant was told the correct maximum penalties by the presiding magistrate. The matter was stood down in the list to enable the Appellant to view the Council’s witness statement. On resumption of the matter later in the morning the Council’s solicitor told the magistrate that the Appellant had obtained independent legal advice. The Appellant told the magistrate he now wished to plead guilty to both offences. His statements made in court are extracted above in par 9(11).

23. I do not consider there was anything equivocal about the Appellant’s pleas of guilty. His acceptance of guilt based on his ownership of the relevant property is entirely appropriate for reasons I give in pars 26-28. It would not have been obvious to the magistrate that the Appellant had legal defences to the charges such that he should have advised the Appellant that he could change his plea again before sentence. The plea of guilty was entered on the day of the trial originally set down to determine culpability in light of his plea of not guilty. The Appellant appeared to understand the nature of the charges to which he was now pleading guilty, was in possession of the necessary facts in doing so and did not demonstrate a lack of understanding of the law. He demonstrated a consciousness of guilt. None of the circumstances identified at [32] in Hura arise here.

24. I agree with the Council that there is no basis for finding that the magistrate’s refusal of leave to adjourn the matter to another day was unfair. The magistrate did stand the matter down in the list on 20 January 2016 during which period the Appellant obtained legal advice from an unknown person and chose to plead guilty to both offences that day. That he was now pleading guilty was clarified with him by the magistrate.

25. The duty of a presiding judge or magistrate to ensure a fair trial for a self-represented person in the terms identified in Hamod is accepted. Nothing the magistrate did on 20 January 2016 was inconsistent with such a duty. That incorrect information was given to the Appellant on 18 November 2015 did not cause the Appellant to act to his detriment.

26. The legal issues identified in pars 16 and 17 of the written submissions that the Appellant seeks the opportunity to put in any retrials if leave is granted are very unlikely to succeed. That conclusion informs my decision whether leave to appeal ought be granted. In relation to the offence under the POEO Act, the Appellant submitted he should not have received the prevention notice as the owner of the land as the POEO Act requires such a notice to be served on the occupier of land. The Appellant is the owner of the property the subject of the prevention notice issued in 2013. “Occupier” is widely defined in the Dictionary to the POEO Act to include anyone with management and control of the land. This includes the Appellant as the owner in this case as there is evidence that he uses the land for cattle grazing and can exercise control over the land if he chooses. He has not, for example, entered into a long-term lease with a third party. Hiring out the land for a fee on a one-off basis is not relinquishing control of the land in a legal sense. The obligation to comply with the prevention notice rested on him regardless of who was carrying out the “doof” party on his land.

27. No statutory basis exists for narrowly confining premises to apply only to land with buildings as the Appellant submitted. A prevention notice under the POEO Act can clearly issue to the occupier of vacant land. “Activity” is also very widely defined in the Dictionary. The Appellant’s counsel submitted that he did not actually receive the prevention notice but the transcript of 3 February 2016 suggests that he did. The Council’s evidence establishes that the prevention notice was sent by post to the Appellant’s address in Queensland and that was effective service as identified in s 321(1)(c) of the POEO Act.

28. In relation to the EPA Act charge, the Appellant wants to submit that he was not the person carrying out development as defined in s 76A of the EPA Act as he did not hold the event and cannot therefore be guilty of this offence. “Development” is defined in the EPA Act to include the use of land. It does not matter whether there was a charge for the “doof” party in terms of that activity being a use of the land. While use of land requiring development consent is a question of degree based on the scale of activity (as it cannot be contemplated by the legislation that all private parties constitute a use of land requiring development consent), in this case a minimum 200 people who were members of a club were expected to attend according to the telephone call by the Appellant’s friend Ms Johnson to the Council on the first day of the event. On 20 January 2016 in the Local Court the Appellant estimated 300 people attended the event. According to the statement of facts the Council officer who attended saw a stage, stalls, tents, a DJ set up and a large number of people and vehicles. The Appellant enabled the use of his land by Mr Koch who organised the party which constituted development requiring development consent. He could have exercised control as the owner of the land over the activity. It is not a legal defence to the charge of carrying out development that he chose not to or that he did not know that a fee would be charged for entry. As the Council submitted criminal liability can extend to more than one person under the principle of extended common purpose for example. Because there was no trial in relation to culpability held in this case the precise basis for culpability did not need to be determined in the Local Court.

19. In any event, in terms of the evidence in the Local Court, immediately before the event the Appellant’s friend telephoned the Council to advise of the party as summarised in the email of the Council officer in par 9(7). That call together with the Appellant’s statements to the Local Court on 20 January 2016 gives rise to an inference that the Appellant did have ownership of the event. While the Appellant suggested to the magistrate that he had made a call to Paul at the Council and was told the party could be held, the summary of the only call to the Council about the event in the evidence from Ms Johnson states that she was told the Council would assess the event and fine them if the activity was illegal. The email from Mr Koch dated 12 November 2015 provided in the Local Court proceedings stating that he did not tell the Appellant that he would be charging for the event does not provide any defence for the Appellant.

20. None of the legal issues which the Appellant would seek to raise in any retrial appear to have any prospects of success.

21. There was no miscarriage of justice in the proceedings before the Local Court. None is demonstrated by the Appellant in relation to the legal issues he wishes to ventilate if retrials are held. Leave to appeal against both convictions under s 32(1) of the Appeals and Review Act is refused. I turn now to consider the sentencing appeals.

Sentencing appeals

32. An appeal against sentence can be made as of right under s 31 of the Appeals and Review Act. I am sentencing the Appellant afresh rather than determining if there was any error in approach to sentencing by the magistrate. The Appellant has not sought to adduce fresh evidence as provided by s 37(2) of the Appeals and Review Act. I have the same material as that before the magistrate (Exhibit A, tab 10) including the statements of facts (Exhibit A, tabs 5 and 6) summarised above in par 7. The magistrate’s reasons are summarised above in pars 10-13. Given that the magistrate has long experience in the Casino local government area in which he is sentencing and was clearly aware of the difficulties in regulating “doof” parties in that local government area his approach warrants significant weight in my view.

33. In relation to objective seriousness of the POEO Act offence, the Appellant was issued with a prevention notice in 2014 because of concerns about loud music from events held at his property. The notice continues in force indefinitely. The Council served the notice after receiving complaints from residents of the rural area in this regard. In terms of s 241 of the POEO Act, I consider there was environmental harm given the noise generated by the event impacting on neighbours in a quiet rural area.

34. While the Appellant’s written submissions suggested that the Appellant had not seen the prevention notice before 20 January 2016, it was served on him by post in accordance with s 321(1)(c) of the POEO Act. That he found it in his files suggests that he did receive it. It is difficult to take into account that he apparently failed to read it as a mitigating factor in this sentencing exercise.

35. In relation to the objective seriousness of the EPA Act charge, development consent was required for the use of the land and lodging a development application would have enabled assessment of matters relevant to public safety by the Council. For example, the site is partially bushland, raising concerns about possible fire risk requiring appropriate management. A large number of people attended the event and had to enter and exit the site in a relatively remote rural area.

36. Overlapping considerations apply to both matters. The Appellant had control over the circumstances giving rise to both offences in choosing to let someone else use his land without imposing appropriate conditions including that the event comply with the prevention notice issued by the Council some 12 months earlier. Both offences were committed for financial gain as the Appellant obtained a fee for an unknown sum for the use of his land. The offences are of moderate objective seriousness. The magistrate took into account the overlapping factors between both offences when sentencing.

37. In relation to mitigating circumstances, that the Appellant has obtained development consent to hold two parties per year on another part of his land since the offence is not material to sentencing for these offences. That simply indicates that the Appellant has taken steps to comply with the planning law in New South Wales. There is no indication of assistance to authorities in the context of these offences.

38. The Appellant has no prior convictions. The personal references provided by the Appellant in the Local Court were prepared in 2012 before the date of the offences and can therefore have little weight in this sentencing exercise as they could not have been made with awareness of the offences.

39. The Appellant entered pleas of guilty on the day of trial. The utilitarian value of the pleas is small in these circumstances. A small reduction in penalty is warranted, as the magistrate expressly identified.

40. No evidence was presented by the Appellant in relation to his means to pay penalties before me. The magistrate asked him to advise him of his financial position as recorded in the transcript. No submission was made to me pursuant to s 6 of the Fines Act 1996 (NSW) in relation to capacity to pay a fine.

41. The cases said by the Appellant to be comparable for the purposes of even-handedness appeared to have been selected as indicating generally the low range of penalties for offences against the EPA Act and POEO Act being $700 to $11,000. No attempt was made to identify why the matters before me are of such a low range of objective seriousness to warrant very small fines.

42. The Appellant submitted that the magistrate should have considered s 10 of the CSP Act whereby no convictions are recorded. The offences are not trivial given the respective statutory schemes the offences are intended to uphold, a matter identified by the learned magistrate in his judgment summarised at pars 10-13 above. There are no extenuating circumstances. No basis to apply s 10 is demonstrated.

43. In the exercise of my sentencing discretion, in light of the objective seriousness of the offences and the few mitigating circumstances available to the Appellant, I consider the magistrate’s sentencing decisions should be confirmed. I therefore dismiss the two appeals against sentence.

44. Pursuant to s 49(4) of the Appeal and Review Act, the Court may make such order as to the costs to be paid by either party as it thinks just. Section 70 concerning limitations on the award of costs against public prosecutors is not relevant. Under s 72 of the Appeal and Review Act the Court must order costs be paid within a stated time. As the Appellant has been entirely unsuccessful in these appeals and leave applications it is appropriate to make an order that the Appellant pay the Council’s costs. I will allow the Appellant two months (60 days) to pay those costs. As an administrative matter, the costs should be paid to the Land and Environment Court Registry.

Order

45. The Court orders:

1. The application for leave to appeal against conviction in Local Court matter no 2015/297505 is dismissed.

2. The application for leave to appeal against conviction in Local Court matter no 2015/292912 is dismissed.

3. The appeal against sentence in Local Court matter no 2015/297505 is dismissed.

4. The appeal against sentence in Local Court matter no 2015/292912 is dismissed.

5. The Appellant is to pay the Respondent’s costs of these leave applications and appeals within 60 days.

6. The exhibits are to be returned.

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Decision last updated: 06 September 2016