Krajinovic v Heath
[2018] TASSC 38
•24 August 2018
[2018] TASSC 38
COURT: SUPREME COURT OF TASMANIA
CITATION: Krajinovic v Heath [2018] TASSC 38
PARTIES: KRAJINOVIC, Darko
v
HEATH, Nicholas
WEBSTER, Dale
FILE NO: 3667/2017
DELIVERED ON: 24 August 2018
DELIVERED AT: Hobart
HEARING DATE: 14 June 2018
JUDGMENT OF: Pearce J
CATCHWORDS:
Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Sentencing – Sentence manifestly excessive or inadequate – Multiple breaches of planning and building legislation by demolition of heritage listed house and trees – Commercial development aspect – House contained asbestos – Total fine of $225,000 not manifestly excessive.
Land Use Planning and Approvals Act1993 (Tas).
Building Act2016 (Tas).
Building Regulations2016 (Tas).
Environmental Management and Pollution Control Act1994 (Tas).
Occupational Licensing Act2005 (Tas).
Aust Dig Magistrates [1349]
Environment and Planning – Environmental planning – Planning and development prosecutions – Sentencing – Demolition of heritage listed house and trees without planning permit.
Land Use Planning and Approvals Act1993 (Tas), s 63(3).
Reeves v Ranson [1999] TASSC 52; Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASC 431, applied.
Aust Dig Environment and Planning [269.1]
Environment and Planning – Pollution – Air pollution – Offences – Penalty – Environmental nuisance – House demolition resulting in release of asbestos fibres into atmosphere.
Environmental Management and Pollution Control Act1994 (Tas), s 53(1).
Aust Dig Environment and Planning [364]
REPRESENTATION:
Counsel:
Applicant: T Kovacic
First Respondent: F Cangelosi
Second Respondent: S Thompson
Solicitors:
Applicant: Leonard Fernandez
First Respondent: Simmons Wolfhagen
Second Respondent: Director of Public Prosecutions
Judgment Number: [2018] TASSC 38
Number of paragraphs: 46
Serial No 38/2018
File No 3667/2017
DARKO KRAJINOVIC v NICHOLAS HEATH and DALE WEBSTER
REASONS FOR JUDGMENT PEARCE J
24 August 2018
The applicant moves to review a sentence imposed on him by a magistrate, Mr S Cooper, on 5 December 2017. On 26 February 2017 the applicant demolished the house at 55 Mt Stuart Road in Hobart, and cut down two trees on the land. As will be explained, by doing so he committed offences under the Land Use Planning and Approvals Act 1993, the Building Act 2016, the Building Regulations 2016, the Environmental Management and Pollution Control Act 1994 and the Occupational Licensing Act 2005. He pleaded guilty to nine offences across two complaints. Eight counts are on one complaint in which the first respondent, as General Manager of the Hobart City Council, was the complainant. For those counts the magistrate imposed one sentence, a fine of $205,000. The remaining count was on a separate complaint, in which the second respondent, as Administrator of Occupational Licensing, was the complainant. For that count the magistrate imposed a separate sentence and fined the applicant $20,000. A further order was made that the applicant pay the costs of both the complainants.
The sole ground of appeal is that the sentence, a total fine of $225,000, is manifestly excessive. For the following reasons the total sentence is not manifestly excessive and the motion will be dismissed.
The legislative and regulatory background
The Land Use Planning and Approvals Act, s 51, provides that a person must not commence any use or development which, under the provisions of a planning scheme, requires a permit, unless the relevant planning authority has granted a permit for the use or development and the permit is in effect. The term "development" includes not only construction, but also the demolition or removal of a building or works. The term "works" includes any change to the natural or existing condition or topography of land including the removal, destruction or lopping of trees.
The property at 55 Mt Stuart Road is subject to the Hobart Interim Planning Scheme 2015. The scheme regulates the use and development of property within the municipality of Hobart. The planning scheme has a number of Codes to which the other development control provisions of the scheme are subject. One is the Historic Heritage Code. The purpose of the Code, according to its terms, is "to recognise and protect the historic cultural heritage significance of places, precincts, landscapes and areas of archaeological potential by regulating development that may impact on their values, features and characteristics". The Code lists heritage precincts and individual heritage places. Development of a place must be in accordance with the Code. The property at 55 Mt Stuart Road was one of the places listed in the Code as a heritage place.
The planning scheme also contains a Significant Trees Code. The purpose of that Code, according to its terms, is "to recognize and protect trees that are considered to be significant for reasons including; aesthetics, size, age, species, cultural value or contribution to the streetscape, townscape or public amenity". The Code controls the lopping, pruning, removal, injury or destruction of listed trees. Two trees on the land, an Irish yew tree and a bay tree, were listed as significant trees under the Code.
The combined result of those provisions was that no development of 55 Mt Stuart Road was to be undertaken, either demolition of the house or cutting or removal of the trees, without a successful application to the Hobart City Council for grant of a permit. Any such permit was one which, according to the planning controls, the Council had a discretion to either grant or refuse, and thus it was necessary that any application be advertised to enable public representations. The Historic Heritage Code provided that the Council may require an applicant for a development permit to provide specified information including a "statement of significance" and a "heritage impact statement". An application to demolish the house or remove the trees, would in each case have required the Council to consider whether the performance criteria specified in the respective Codes could be complied with.
In addition, building work on the land, which includes the demolition of buildings, was subject to the legislative and regulatory controls, about how it was to be performed and who could perform it, which are of general application in Tasmania.
The circumstances of the offences
The applicant and his partner purchased 55 Mt Stuart Road at auction on 22 September 2016 for $445,000. The conditions of sale they both signed at the time of purchase contained a clause which noted the purchasers' acknowledgment that the Historic Heritage Code applied to the dwelling, and the Significant Trees Code applied to the yew tree and the bay tree. The auctioneer informed those present at the auction that asbestos was present within the house. The cement sheeting from which the house was partially constructed was of a type commonly used in building materials in Australia in the late 1980s which contained chrysotile asbestos. When such cement sheeting is damaged or disturbed, it breaks down into respirable super-fine asbestos fibres which, when inhaled, cause a range of respiratory diseases such as asbestosis, an inflammatory and scarring disease of the lungs, and mesothelioma, a fatal cancer of the linings of the internal organs, usually the lungs and chest wall.
At 10.40am on Sunday, 26 February 2017, a neighbour saw two men on the property cutting down one of the trees. Two other men were working on the other tree which had already been cut down. The neighbour phoned the Council's duty officer, Mark Drake. He arrived at the property at 11.15am where he approached the applicant. He asked the applicant if he had a permit to cut down the trees, and the applicant responded that "the tree was falling down and dangerous" and that he wanted to "make somewhere for the children to play". Mr Drake informed the applicant that he could not continue and that someone from the Council would be in contact with him the following day. At about 11.40 am, after Mr Drake had left the property, the Council's senior cultural heritage officer, Brendan Leonard, arrived. Mr Leonard had been contacted by another neighbour. He saw a large truck with an earth moving vehicle parked on the nature strip, and four men with chainsaws removing a tree. Mr Leonard informed the men, one of whom was the applicant, that the trees and the property itself were "heritage listed" and that the work required a permit. At about noon, police officers arrived and informed the applicant and the others that the work had to stop because they were "violating planning regulations". At about 12.10pm, one of the neighbours went to the property. He told the applicant that the trees and the property were heritage listed and asked him why he was cutting trees down. The applicant replied "but don't you think that this will look better with a lot of fruit trees around here". When the neighbour asked about the house, the applicant said, "well you've seen inside the house, yeah? What can I do, what can I do?" As the conversation developed the applicant said, "I'm sick of everyone around here telling me what to do. Everyone is taking up my time, and I would've had all this done by now." He denied the presence of asbestos in the house and said "it's my place and I can do what I want".
At about 2pm the accused used the excavator he had brought to the property and began to demolish the buildings. At first he demolished the outbuildings but then, about 20 minutes later, started to demolish the house. He quickly demolished most of it by using the excavator to rip apart the main house structure. The electricity was still connected although he had removed fuses from the fuse box. Clouds of dust generated by the demolition were taken by the wind across neighbouring properties in most directions. By the time the first council officer, Mr Drake, got back to the property at about 3pm, the house was mostly gone. He approached the applicant who told him "I didn't think I would see you again today." The applicant told Mr Drake that he knocked down the house because it was dangerous, it had a rotten foundation and that, because it was his, he could do what he wanted. When he was reminded of the need for a permit, he replied that "it is down now, and I can start building four townhouses".
No application for any form of permit had been made by the applicant before cutting down the trees and demolishing the house.
The magistrate was told that the house on the property was damaged beyond repair. Neither it, nor its heritage value, can be re-instated. The magistrate was also informed that although both the trees remained alive, the damage to them was so extensive that the aesthetic and cultural value which led them to be listed as trees of significance was destroyed. A report from an arborist to that effect was provided. It was also asserted that as a result of the destruction of the house and the trees, greater potential for development of the property was enlivened, and the property value had thereby been substantially increased.
The offences and the penalty provisions
By the Land Use Planning and Approvals Act, s 63(3), a person who undertakes a development that is contrary to a planning scheme commits an offence. By demolishing the house without a permit, and by cutting down the two trees without a permit, the applicant committed three separate breaches of the legislation, each of which formed a count on the complaint. The offence is punishable, on summary conviction, by a fine not exceeding 500 penalty units. At the relevant time a penalty unit was $157, making the maximum fine for each count $78,500, a total maximum of $235,500.
The Building Act, s 189, provides that a person must not perform demolition permit work unless there is a valid demolition permit in force. A breach of the provision is punishable by a fine not exceeding 100 penalty units, in this case $15,700. By his plea, the applicant admitted that the demolition, or partial demolition, of the buildings at the property was demolition work which required a permit under the Building Act, and that he did not have a permit. By s 180 of that Act, permit demolition work may only be performed by a person who holds a licence under the Occupational Licensing Act, or a person who holds a prescribed qualification, that authorises the person to perform the permit demolition work. The applicant was neither licensed nor qualified and thus could not, at the time of the breach, have obtained a permit to perform the work.
The Building Regulations, reg 15, imposes requirements for demolition of buildings. Three of the requirements are applicable to this case. Regulation 15(1)(a) imposed a requirement that the applicant not demolish a building on the property without having first removed, in accordance with the Building Act or any other Act, all known hazardous substances and materials. Regulation 15(1)(b) imposed a requirement that the applicant not demolish a building without written advice from the electricity supplier that the supply of electricity to the property had been disconnected. Regulation 15(1)(c) imposed a requirement that the applicant not demolish a building without having given written notice to the general manager of the Council in respect of the timetable for capping any stormwater services on the premises.
None of the requirements of reg 15 were complied with. The asbestos, a hazardous substance, had not been removed. The electricity was still connected when the house was demolished. No notice had been given to the Council for capping the stormwater services. A breach of the regulation is punishable, in the case of a natural person, by a fine not exceeding 50 penalty units, in this case $7,850, a total maximum fine for all three counts of $23,500.
By the Environmental Management and Pollution Control Act, s 53(1), a person who wilfully and unlawfully causes an environmental nuisance is guilty of an offence. By his plea of guilty to that offence the applicant admitted that he had emitted, discharged, deposited or disturbed a substance, the asbestos, that unreasonably interfered with, or was likely to unreasonably interfere with, a person's enjoyment of the environment, and that he did so wilfully and without lawful excuse. A breach of the provision is punishable by a fine not exceeding 300 penalty units, in this case $47,100. The mental element for an offence under s 53(1), wilfulness, serves to distinguish it from the lesser offence under s 53(2), unlawfully causing an environmental nuisance, the maximum penalty for which is 100 penalty units, $15,700.
The final offence to which the applicant pleaded guilty was against the Occupational Licensing Act, s 22A(1). That Act applies to those who perform "building services work": s 7(1BA). That term is defined to include the construction, or demolition, of buildings or temporary structures: par(1) of Pt 4, Sch 2. By s 22(1) the Act provides that a person must not carry out work that is usually carried out in the course of an occupation or trade to which the Act applies, in this case building demolition, unless the person holds a relevant licence or has undergone approved training. By demolishing the dwelling, garage and carport at 55 Mt Stuart Road, when he did not hold a licence to perform the work, the applicant thereby breached the provision. A breach of the provision is punishable by a fine, in the case of an individual, not exceeding 200 penalty units, in this case $31,400.
The total maximum fine for the offences which were subject to the eight counts on the Hobart City Council complaint amounted to $321,800. The maximum fine for the remaining count was $31,400, resulting in a total of $353,200.
The applicant's personal circumstances and plea in mitigation
At the time of sentence the applicant was aged 32. He lived in Hobart with his partner and five young children. He conducted his own business providing property maintenance services. His counsel informed the magistrate that the applicant's taxable income over the previous few years had averaged about $40,000. He had mortgages on his residence as well as the Mt Stuart property. He complied with the notice issued by the Council after the offences were committed requiring him to engage a licensed asbestos removal contractor to clean up the site at a cost of about $48,000. The applicant had previously undertaken owner builder projects, but had not held a builder's licence in Tasmania or any other State. In 2016 he applied for a builder's licence, but had been refused because he had insufficient demonstrated experience. Since the offences he had undertaken training and obtained a certificate in asbestos removal.
He was interviewed on 28 April 2017 by officers of Consumer, Building and Occupational Services. He told them that his initial intention was to remove the trees and the outbuildings, but when he started on the house he "caused more damage than planned", leaving only the front façade. He claimed to not know that the house was heritage listed, but admitted having made no inquiries about the processes he was required to go through. The applicant's counsel submitted to the magistrate that he had been instructed by the applicant at an early stage to express his contrition. He co-operated to bring the charges to completion at an early stage. He pleaded guilty on his first appearance in court, not long after the complaints were filed. He submitted that the applicant accepted responsibility for his actions and expressed remorse to the magistrate. It was submitted that "his actions demonstrate that he's learnt his lesson. It's cost him dearly and he realises how silly he was …", and that a large financial penalty would have a significant impact on him and his family.
The applicant had no prior convictions for offences against the legislation under which he had been charged. However, in 2012 he was fined for failing to comply with a direction contained in an order made by a member of the Tasmanian Industrial Commission. Favourable personal references were shown to the magistrate.
The applicant's counsel asserted that the applicant had arrived at the auction of the property late and had not heard the auctioneer's announcement about the planning restrictions arising from the listing of the house and the trees, and that he signed the contract without looking at the relevant conditions. It was submitted that his actions on the day were taken "largely out of ignorance of the laws relating to demolition".
Some issue was taken by the applicant's counsel as to whether, and if so to what extent, the value of the property had been increased by removal of the house and the trees. The debate centred on the extent to which the property, notwithstanding the status of the house and the trees, had pre-existing development potential. The applicant submitted to the magistrate that when the expenses he had incurred for clean-up and legal costs were taken into account, he had most likely made a loss rather than a windfall gain. It was submitted that the trees were not dead, that both had new growth "eventually forming new crowns". It was contended that the bay tree had been "lopped" by someone else prior to the auction, a submission presumably made to support the inference that its aesthetic significance was already somehow less.
The magistrate's sentencing remarks
The magistrate pronounced sentence on 5 December 2017. He made detailed sentencing remarks. After reciting the circumstances of the offences and referring to the applicant's antecedents and personal and financial circumstances, his Honour said this:
"The only matter I can identify as mitigating at all is your early plea of guilty. I give that plea appropriate weight, although the case against you I must say was overwhelming. The expressions of remorse, such as they are, are completely inconsistent with your conduct on the day in question. In my view, this is very serious offending indeed. You released asbestos dust, or dust that actually contained asbestos into the air, it was an actual threat to your neighbours. Your actions were a flagrant and deliberate breach of the law and you knew it. You had three opportunities to desist on the 26th February from your course of conduct but continued and in so doing displayed an utter disregard for both the law and the rights of your neighbours. Your response to your neighbour and the council officer make this abundantly plain. It is important to bear in mind that any penalty must be proportionate to the gravity of the offending. It should be clear from what I have said that, in my view, your offending was a very serious example indeed of this type of offending. Any sentence imposed, necessarily, must serve competing ends, rehabilitation, personal deterrence, general deterrence, denunciation and so on. In this case, in my view, general deterrence is the overriding consideration consistent with authority. The penalty I impose must be of such magnitude, given that I may only fine that it will serve to deter anyone else inclined to flout with utter contempt as you did the planning laws.
… It should be clear from what I have said that this offending is, in my view, as bad an example imaginable of its type. It must be marked with very large fines indeed."
Manifest excess
The circumstances which justify intervention in an appeal on the ground that a sentence imposed by a magistrate is manifestly excessive or inadequate have been stated many times. I stated them in Garcie v Lusted [2014] TASSC 27 and Barrett v Wilson [2015] TASSC 3, 69 MVR 333. However, in matters such as this, they are worthy of recall. The ground can only succeed if it is established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen (1992) 1 Tas R 234 at [13]; Lusted v Kenway [2008] TASSC 47 at [38]; Visser v Smart [1998] TASSC 151. The applicant must show that the sentence is so obviously excessive that the sentencing discretion must have miscarried; or, to put it another way, the sentence is plainly outside the proper limits of the wide discretion vested in the magistrate: Allen v Kerr [2009] TASSC 10, 19 Tas R 132; 193 A Crim R 262. Magistrates have a very wide sentencing discretion: Whittle v McIntyre [1967] Tas SR (NC 6) 263. Sentencing courts are to be allowed a wide measure of latitude that is to be viewed with respect and restraint by appeal courts: Postiglioni v The Queen (1997) 189 CLR 295 per Kirby J at 336–337. An appeal court may not substitute its own opinion for that of the sentencing magistrate merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing magistrate exercised his or her discretion: Whittle v McIntyre; Lowndes v The Queen [1999] HCA 29, 195 CLR 665 at [15]; Director of Public Prosecutions v CSS [2013] TASCCA 10. As was recently re-stated by the High Court in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41, the discretionary nature of the judgment required of a sentencing court means that there is no single sentence that is just in all the circumstances. Sentencing judges must take account of and balance many different and competing factors to arrive at a single result: Veen v The Queen(No 2) (1988) 164 CLR 465 at 476, Wong v The Queen [2001] HCA 64, 207 CLR 584 per Gaudron, Gummow and Hayne JJ at 611 [75]; Markarian v The Queen [2005] HCA 25, 228 CLR 357 at 373-375 [37].
However, as was pointed out in Director of Public Prosecutions v Dalgliesh at [7], "it is well understood that a sentence may be so clearly unjust, because it is either manifestly inadequate or manifestly excessive, that it may be inferred that the sentencing discretion has miscarried".
Sentencing considerations
The Land Use Planning and Approvals Act is part of a scheme of legislation in Tasmania which has at its heart the furtherance of the objectives of the resource management and planning system of Tasmania. Those objectives are set out as a schedule to the Act and include the promotion of the sustainable development of natural and physical resources, to provide for the fair, orderly and sustainable use and development of land, and to encourage public involvement in resource management and planning. The Act also sets out objectives for the planning processes established under the Act, which are:
"(a)to require sound strategic planning and co-ordinated action by State and local government; and
(b)to establish a system of planning instruments to be the principal way of setting objectives, policies and controls for the use, development and protection of land; and
(c)to ensure that the effects on the environment are considered and provide for explicit consideration of social and economic effects when decisions are made about the use and development of land; and
(d)to require land use and development planning and policy to be easily integrated with environmental, social, economic, conservation and resource management policies at State, regional and municipal levels; and
(e)to provide for the consolidation of approvals for land use or development and related matters, and to co-ordinate planning approvals with related approvals; and
(f)to promote the health and wellbeing of all Tasmanians and visitors to Tasmania by ensuring a pleasant, efficient and safe environment for working, living and recreation; and
(g)to conserve those buildings, areas or other places which are of scientific, aesthetic, architectural or historical interest, or otherwise of special cultural value; and
(h)to protect public infrastructure and other assets and enable the orderly provision and co-ordination of public utilities and other facilities for the benefit of the community; and
(i)to provide a planning framework which fully considers land capability."
The prohibition on development without application for, and grant, of a valid planning permit, ensures that proposed development may be assessed by the planning authorities, with public involvement, against these objectives. By demolishing the house and cutting down the trees without applying for and being granted a permit, the applicant permanently and irretrievably subverted consideration by the planning authority and the public of what was proposed, against the significance of the house and the trees which the planning scheme provisions were specifically designed to protect. The planning controls exist for the benefit of the whole community. As was observed by Hasluck J in Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81 at [74] in relation to penalties for planning offences:
"Planning controls exist for the benefit of the community as a whole. Their efficacy depends not only upon formal enforcement but also on a pervasive culture of general observance and respect for the underlying communal purpose. This requires that breaches of the law be underpinned by significant penalties in order to deter infringements".
It was submitted for the applicant that he had already suffered a significant financial impost, and that there was, as a result, less need for a sentence of specific deterrence. However, in my view, the learned magistrate was correct to conclude that general deterrence was the predominant aspect of punishment. That is, the principal purpose of sentence was to deter others from acting in disregard of the planning laws, thus placing personal interest ahead of public interest. That is particularly so when, as here, the offending development work involves a commercial aspect. There is a strong need to ensure compliance with planning laws in respect of such developments. In this case, the planning restrictions on the land imposed a greater than usual barrier to commercial development of the property. On the day of the offences the applicant commented, after having done the unlawful work, that he could "start building four townhouses". It was not submitted to the sentencing magistrate that this was not an accurate statement of his intention, although some issue was taken about the development potential of the site prior to performance of the unlawful work, and whether the applicant would in fact achieve any gain.
As to general deterrence, I have no difficulty in concluding that imposition of heavy financial penalties in cases such as this one will cause others weighing up the potential risks and benefits of development, to think twice before acting in breach of the planning laws. Substantial deterrent penalties are appropriate where the development involves a commercial aspect to avoid any possibility that the risk of being prosecuted will be treated as merely a business cost: Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASC 431. A statement to much the same effect was made in this jurisdiction by Crawford J (as he then was) in Reeves v Ranson [1999] TASSC 52. That case concerned the owners of a large house in Launceston who used the second floor for the purposes of hostel accommodation without the required planning permit. At [24] his Honour said:
"The applicant's offence was committed in the course of a business carried on by him and his wife for the purpose of profit. Deliberate offending against the planning laws by the owners of businesses generally require significant penalties. Small fines will not act as a real deterrent to those engaged in business."
The maximum penalties provided for in the Land Use Planning and Approvals Act for breach of this provision indicate a legislative intention that breaches may be visited with heavy fines. Sentencing courts have a duty not to impose a fine that is disproportionate to the means of an offender: Broughton v Lowe [1979] Tas R 309 (NC 7), 20/1979; Devlyn v Lowe 31/1980; Kaye v Vagg (No 2) (1984) 11 A Crim R 127; Maynard v White A108/1994, [1994] TASSC 169; R v McNamara (1978) 2 Crim LJ 170; Young v Geddie (1978) 45 FLR 400; Reeves v Ranson (above) at [18]; Venn v White [2003] TASSC 115. The applicant's counsel submitted that imposition of a large fine would impose significant financial hardship, but, in this case, the amount of the fine is to be balanced against the risk that it will otherwise be treated as a cost to achieve a development potential not otherwise available.
The requirement for licensing under the Occupational Licensing Act is to further the purpose of that legislation stated, in its Long Title, to ensure that "contractors, practitioners and other persons engaged in certain occupations, trades or callings are appropriately qualified, licensed and regulated to perform their work safely and in accordance with established benchmarks". The provisions of the Building Act, s 189, and the Building Regulations, reg 15, requiring a valid demolition permit and imposing other requirements on performance of the work, exist for a similar reasons, to ensure that building work is performed safely, in compliance with applicable laws and regulations, and to a proper standard. The requirement for a permit enables the regulatory authorities to consider and assess what is proposed for compliance, supervise what is done, and require rectification of breach. There are obvious safety reasons for removal of hazardous material and disconnection of electricity supply. The reason for notice enabling capping of stormwater services is protection of local government infrastructure and the avoidance of interruption to the service.
The Environmental Management and Pollution Control Act serves the same resource management and planning system objectives as the Land Use Planning and Approvals Act, extended to include to regulate, reduce or eliminate the discharge of pollutants and hazardous substances to the air: Sch 1, Pt 2. The grave risk posed by release of respirable asbestos fibres into the air is well known. This was a very serious breach. Clouds of dust were released into the atmosphere. It cannot be determined whether the dangerous asbestos fibres were inhaled by any person but, given the time of day, the proximity of nearby residences and the volume of dust created, the risk of inhalation was considerable. The applicant was reminded of the presence of asbestos immediately before undertaking the work. By proceeding anyway he displayed a contemptuous disregard for the health and safety of others and thumbed his nose at the law.
Is the sentence manifestly excessive?
I see no error in the learned magistrate's statement that the applicant "displayed an utter disregard for both the law and the rights of [his] neighbours". His Honour had in mind the need for proportionality, and for his sentence to serve the competing sentencing ends of rehabilitation, personal and general deterrence and denunciation. For reasons I have already given, I agree with his Honour's statement that general deterrence was the "overriding consideration".
In his submissions in support of the motion, counsel for the applicant placed emphasis on a number of particular factors. The applicant contends that the magistrate was wrong to conclude that the only mitigation arose from the plea of guilty, that not enough weight was given to the plea, and erred in his assessment of the level of the applicant's criminality. The contentions concern the magistrate's treatment of the applicant's expression of remorse, and the magistrate's description of the offences as "as bad an example imaginable of its type". I will address those contentions in these reasons. However, in the absence of a ground asserting specific error, the question for determination is whether the sentence is manifestly excessive when all factors relevant to sentence are taken into account: Hili v The Queen [2010] HCA 45, 242 CLR 520 at 539. As Gleeson CJ and Hayne J stated in Dinsdale v The Queen [2000] HCA 54, 202 CLR 321 at [6], "inadequacy or excess is, or is not, plainly apparent".
The applicant contends that an important aspect of considering the sentence is his plea of guilty. Pleas of guilty should ordinarily attract a reduction, a discount, in sentence: Ilic v Tasmania [2009] TASSC 94, 19 Tas R 201. In sentencing the applicant the magistrate commented that he gave the plea "appropriate weight, although the case against [the applicant] was overwhelming". In his submissions in support of the motion, counsel for the applicant correctly submitted that the plea carried mitigation. That is so even if the case against an accused is strong and the plea "was born of nothing other than acceptance of the inevitable": Director of Public Prosecutions v Harris [2013] TASCCA 5, 22 Tas R 448, per Estcourt J at 458 [41]. In this case it provided some indication of acceptance of responsibility and facilitated the course of justice: Cameron v The Queen [2002] HCA 6, 209 CLR 339 at [14]. See also DPP (Cth) v Thomas [2016] VSCA 237, 315 FLR 31 and Xiao v The Queen [2018] NSWCCA 4, in which intermediate courts of appeal in Victoria and New South Wales considered the mitigatory effect of a plea of guilty in federal offences. The applicant pleaded guilty at an early stage and the preparation for and conduct of a defended hearing was avoided.
However, in this case, the plea gave little indication of remorse. Genuine remorse, when demonstrated, is a mitigating factor: Neal v The Queen (1982) 149 CLR 305 per Murphy J at 314. That is so because it indicates realistic prospects of rehabilitation and a reduced need for specific deterrence: Cameron v The Queen [2002] HCA 6, 209 CLR 339 at [65]; Phillips v The Queen [2012] VSCA 140, 37 VR 594, 222 A Crim R 149; C D v The Queen [2013] VSCA 95. It can be evidenced by a plea of guilty, but, as Geason J pointed out in Director of Public Prosecutions v Broad [2018] TASCCA 5, a plea does not ipso facto evidence remorse. Care must be taken to distinguish between genuine remorse and expediency or self-pity: Whyte [2004] VSCA 5, 7 VR 397 at 403. It is a distinction which the learned magistrate no doubt had in mind, because he said, in his sentencing remarks, that the "expressions of remorse, such as they are, are completely inconsistent with your conduct on the day in question". The comment his Honour made was open to him. He was entitled to take the applicant's expression of remorse as unconvincing and to attribute little weight to it. It was not a factor which detracted from the predominance of general deterrence as a sentencing factor.
In support of the motion, the applicant challenged the magistrate's comment that the offending was "as bad an example imaginable of its type". The submission drew a distinction between the applicant's offences and the "worst case of offending". He contended that he was to be sentenced as a person with no prior convictions under the subject legislation, who offended during one course of conduct in a period of a few hours, was an individual not involved in a large scale corporate or commercial venture, and, despite "recklessly" committing some of the offences, was not to be dealt with as a person who deliberately set out to flout the laws. A worse case of offending may be imagined, he submitted, by:
· a repeat offender;
· repeated or sustained breaches;
· a deliberate and knowing breach with insight into the "full seriousness" of the laws which were broken;
· a large scale commercial or corporate offender;
A number of sentences imposed in other States were referred to in support of the contention that the applicant was fined too much. I find the cases of little assistance. The circumstances of each, and the legislation involved, is so diverse as to provide no reliable indication. I would form my own assessment of the gravity of the offending in this case.
The matters relied on by the applicant carry some, but limited, weight. As I have already explained, even if the applicant disclaimed express knowledge of the planning laws he was breaking, he offered no explanation for why he apparently made no enquiry during the five months between the date of the auction and the date of the work or why he proceeded with the work after having been told, on the day, of the requirement for a permit. The magistrate described his offending as "deliberate" and as showing utter contempt for the law. Again, no specific error in that characterisation is claimed. As to the building and regulatory requirements, common human experience would suggest that the requirements should at least have been checked before proceeding. He had applied unsuccessfully for a builder's licence, and could hardly claim to be ignorant of the requirement for one at least in some circumstances. The applicant was, at least, wilfully blind to the true position as to those requirements. Moreover, as to the offence under the Environmental Management and Pollution Control Act, wilfulness was admitted. Some of the offences to which the applicant pleaded guilty provided for substantially higher fines for corporations.
In any event, the criticism of the magistrate's remark gets the applicant nowhere. It draws on concepts similar to those addressed in the judgment of Mason CJ, Brennan, Dawson and Toohey JJ in Veen v The Queen (No 2) (above) at 478:
"… the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed … That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognizably outside the worst category."
However, it is the maximum sentence enacted by the legislature which provides a sentencing yardstick and which invites comparison "between the worst possible case and the case before the court at the time": Markarian v The Queen (above) at [30]-[31]. In R v Kilic [2016] HCA 48, 91 ALJR 131, the High Court said:
"What is meant by an offence falling within the 'worst category' of the offence is that it is an instance of the offence which is so grave that it warrants the imposition of the maximum prescribed penalty for that offence. Both the nature of the crime and the circumstances of the criminal are considered in determining whether the case is of the worst type. Once it is recognised that an offence falls within the 'worst category', it is beside the point that it may be possible to conceive of an even worse instance of the offence ...
Where, however, an offence, although a grave instance of the offence, is not so grave as to warrant the imposition of the maximum prescribed penalty ... a sentencing judge is bound to consider where the facts of the particular offence and offender lie on the 'spectrum' that extends from the least serious instances of the offence to the worst category, properly so called. It is potentially confusing, therefore, and likely to lead to error to describe an offence which does not warrant the maximum prescribed penalty as being 'within the worst category'. It is a practice which should be avoided."
Despite saying that he described the applicant's offending as "the worst case imaginable", the magistrate did not impose the maximum prescribed penalty. On the complaint involving multiple counts, the magistrate did not ascribe any particular penalty, or any proportion of the total, to a particular offence. The total fine imposed was about 62% of the maximum. Across the two complaints, the proportion of the fine imposed to the maximum was roughly equivalent. This is not a case which requires determination of whether the maximum penalty was properly imposed.
The aspect of this motion which has given me most reason for hesitation is the application of the principle of totality, which requires a court sentencing an offender for a number of offences to have regard to the total effect of the sentences, the final penalty, to ensure it is a just and appropriate measure of the totality of the criminal behaviour: Mill v The Queen [1988] HCA 70, 166 CLR 59 at 63; Postiglione v The Queen (above). In is in the nature of a final check or consideration, intended to ensure that in the course of aggregating penalties the court has not arrived at an aggregate that is disproportionate to the seriousness of the offending conduct taken as a whole: R v Walkuski [2010] SASC 146 per Doyle CJ at [5]-[6]. The offences to which the applicant pleaded guilty all involved separate criminality or culpability. Each of the legislative provisions he breached served a different purpose which was to be upheld and vindicated. However there was some overlap. For example, the Building Act and regulation offences, and the offence under the Occupational Licensing Act, all have, at their heart, the object of ensuring safe and competent work. The release of asbestos fibres into the air is an example of the potential for drastic and harmful consequences when unlicensed and careless or incompetent people do work they should not be doing. As to the planning offences, the three breaches all took place at the same property over a relatively short period. In a sense, the applicant engaged in a single course of conduct which manifested disregard of all of the many legislative and regulatory controls which applied to him and the work he did. In those circumstances, care is required to avoid duplication of punishment. Even so, I find myself unable to conclude, when the applicant's conduct is taken as a whole, and all factors relevant to sentence are taken into account, that the total fine is excessive to the point of error.
Result and orders
To me, manifest excess is not clearly apparent. The ground of appeal is not made out. The motion is dismissed.
0
32
5