Ku-ring-gai Council v Abroon (No 3) - [2012] NSWLEC 12

Land and Environment Court

New South Wales

Medium Neutral Citation: Ku-ring-gai Council v Abroon (No 3) [2012] NSWLEC 12
Hearing dates: 3 and 6 December 2010, 20 and 21 January, 3 and 11 February 2011
Decision date: 10 February 2012
Jurisdiction: Class 5
Before: Pepper J
Decision:
The orders of the Court are as follows:
(1) Mr Abroon is convicted of both offences as charged;
(2) in respect of the first offence (no 50079 of 2009) Mr Abroon is fined the sum of $22,500;
(3) in respect of the second offence (no 50078 of 2009) Mr Abroon is fined the sum of $11,250;
(4) pursuant to s 257B of the Criminal Procedure Act 1986 Mr Abroon is to pay the council's legal and investigation costs as determined under s 257G(b) of that Act in respect of both offences; and
(5) the exhibits are to be returned.

Catchwords: SENTENCING: staged development -development without operative consent -- guilty plea - relevant sentencing principles - no environmental harm - offences committed intentionally - fine imposed
Legislation Cited: Civil Procedure Act 2005
Crimes (Sentencing Procedure) Act 1999, ss 3A, 10, 21A, 22, 23
Criminal Procedure Act 1986, ss 257B, 257G
Fines Act 1996, s 6
Environmental Planning and Assessment Act 1979, ss 5(a)(ii), 125, 126
Cases Cited: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Bankstown City Council v Taouk Constructions Pty Ltd [2004] NSWLEC 402
Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234
Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 lgera 304
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Cessnock City Council v Bimbadgen Estate Pty Ltd (No 2) [2011] NSWLEC 140
Council of the Municipality of Kiama v Furlong [2009] NSWLEC 139
Council of the Municipality of Kiama v Micallef [2009] NSWLEC 202
Council of the Municipality of Kiama v Pacific Real Estate (Warilla Pty Ltd) [2009] NSWLEC 191
Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121
Environment Protection Authority v Barnes [2006] NSWCCA 246
Garrett v Freeman (No 5) [2009] NSWLEC 1; (2009) 164 LGERA 287
Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189
Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 272 ALR 465
Holroyd City Council v Shi [2007] NSWLEC 797
Hurstville City Council v Naumcevski [2011] NSWLEC 226
Keir v Sutherland Shire Council [2004] NSWLEC 754
Kiama Municipal Council v Gerroa Boat Fisherman's Club Ltd [2010] NSWLEC 72
Lahood v Strathfield Municipal Council [2007] NSWLEC 714
Lane Cove Council v Wu [2011] NSWLEC 43
Lee v Office of Environment and Heritage [2012] NSWLEC 9
Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89
North Sydney Council v Littlemore [2003] NSWLEC 336; (2003) 132 LGERA 116
Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289
Plath v Glover [2010] NSWLEC 119
Plath v Hunter Valley Property Management Pty Ltd [2010] NSWLEC 264
Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253
R v AB [2011] NSWCCA 229; (2011) 59 MVR 356
R v Olbrich [1999] HCA 54; (2000) 49 NSWLR 383
R v Thomson; R v Houlton [2000] NSWCCA 309
Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629
Category: Principal judgment
Parties: Ku-ring-gai Council (Prosecutor)
Mr Abbas Abroon (Defendant)
Representation: Mr T Howard (Prosecutor)
Mr A Djemal (Defendant) (3 and 6 December 2010) and Ms H Irish (20 and 21 January and 3 February 2011)
HWL Ebsworth (Prosecutor)
M E McMahon & Associates (Defendant)

File Number(s): 50078 and 50079 of 2009

Judgment

Mr Abroon Builds Two Townhouses Without Consent

By summonses issued on 14 December 2009, Mr Abbas Abroon pleads guilty to two offences against s 125(1) of the Environmental Planning and Assessment Act 1979 ("the EPAA").

Each summons alleges that Mr Abroon erected a dual occupancy dwelling on land known as 23-25 Stanley Street, St Ives ("the property") absent an operative development consent authorising the erection of that building.

Formerly, the property comprised two separate residential lots (No 23 and No 25 Stanley Street) with a single residential dwelling on each lot. Abby's Real Estate Pty Ltd ("Abby's") purchased the property for the purpose of redeveloping it.

The property is located in the Ku-ring-gai Council ("the council") local government area and is zoned Residential 2(c) under the Ku-ring-gai Planning Scheme Ordinance. Development consent was granted by the council for the erection of each of the two dwellings the subject of the charges, viz , on Lot C ("the first offence", no 50079 of 2009) and Lot E ("the second offence", no 50078 of 2009), as part of the staged development of the property. However, each consent was expressed to be the subject of a deferred commencement condition that had not been fulfilled at the time of the erection of the dwellings.

Mr Abroon is a real estate agent and a property developer and the owner-builder for the purpose of the development the subject of the offences. He is the principal of Abby's. He and his wife are the sole directors and shareholders of that company. His wife has not been charged.

This judgment concerns the appropriate sentence to be handed down pursuant to the pleas of guilty to the respective charges. I have determined that a total monetary penalty of $33,750 should be imposed in respect of both offences.

The Conduct of the Sentence Hearing

From the outset some observations must be made about the conduct of these proceedings by Mr Abroon, who, it must be recalled, elected to plead guilty to the offences, thereby admitting the elements of the offences.

As this judgment reveals, the proceedings were not overly complex, there being no environmental harm occasioned by the commission of the offences and the principal issue requiring resolution being the state of mind of Mr Abroon at the time of commission of the offences. In short, Mr Abroon asserted that at all times he relied on his principal certifying authority ("PCA"), Mr John Tsiontsis, a registered building certifier, who authorised the unlawful development in his capacity as PCA. Mr Tsiontsis denied this allegation.

No doubt it was because of the relatively simple nature of the contest, and because many of the facts underpinning the proceedings had been agreed, that the parties originally indicated to the Court that two days would be sufficient to hear the matter. In my view, this estimate remained, at all times, an entirely reasonable one.

Unacceptably, the proceedings took six days to conclude. This is so notwithstanding that, at its core, the issues agitated during the trial remained incomplex. The reason for the three-fold increase in the time required for the hearing was because the proceedings were effectively conducted as if criminal liability was in issue, resulting in misdirected evidence being put before the Court, misconceived applications being run and Court time being used inefficiently. The result was an excessively protracted sentence hearing with very little, if any, forensic or financial advantage flowing to Mr Abroon.

The concern that further Court resources would be unnecessarily consumed is ultimately what led the Court to reject receipt of Mr Abroon's written closing submissions on the fifth day of the hearing. The submissions totalled approximately 49 pages of densely typed material which were extensively footnoted. The rejection of the written submissions was over the objection of Mr Abroon, who indicated that to do so might constitute a breach of procedural fairness, although no authority for this proposition was proffered to the Court.

The Court's view, expressed at the time, and reiterated here, is that in circumstances where the prosecutor had not filed any closing written submissions, where the parties, although invited to furnish the Court with written submissions, had been expressly told that a lengthy document would neither be welcome nor of assistance (the Court explicitly stated that it did not "want...50 pages or 100 pages of submissions on what I can only emphasise is still in my view a fairly simple sentence matter": T289.47), and where Mr Abroon was told that he would be afforded as much time as he required to make whatever oral closing submissions he desired, no unfairness, procedural or otherwise, has resulted.

While the Civil Procedure Act 2005 has no application to criminal trials, and while a defendant to a sentencing hearing has every right to robustly challenge disputed facts and points of law, this does not mean that courts are obliged to disregard conduct that unnecessarily prolongs the duration of what should be a straightforward sentence proceeding. As was observed by the Court of Criminal Appeal in R v AB [2011] NSWCCA 229; (2011) 59 MVR 356 (at [2] per Bathurst CJ and [27]-[33] per Johnson J):

2. In par [33] of his judgment, Johnson J emphasises that, as a matter of general principle, the Court should state that the utilitarian value flowing from a plea of guilty is not a fixed element and is capable of erosion as a result of the manner in which the sentencing hearing is conducted. I agree. Whilst, as Spigelman CJ pointed out in R v Thomson & Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [152], the primary consideration for the extent of a utilitarian discount was the timing of the plea this should not obscure the fact that there may be circumstances as Johnson J has pointed out where the utilitarian value may be eroded. Equally, there may be some exceptional circumstances in which it is appropriate to give a full utilitarian discount for a plea, notwithstanding the fact that it has not been entered at the earliest opportunity.

...

27. Where a sentencing Court is required to undertake a lengthy hearing in circumstances where there is an unsuccessful application for leave to withdraw the plea of guilty ( R v Wilkinson (No. 5) [2009] NSWSC 432 at [75]), or where, as in this case, there are disputed questions of fact which are resolved adverse to an offender, then a sentencing Court is entitled, if not required, to have regard to these practical events in assessing the utilitarian value flowing from the pleas of guilty.

28. It might be said in the present case that the time ultimately taken to deal with the Respondent's matters in the District Court, was close to the time which would have been occupied if he had gone to trial.

29. Further, DW was required to give evidence. The utilitarian discount for pleas of guilty does not reflect any other consideration arising from the plea, such as saving witnesses from giving evidence, but this is relevant to remorse: R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 at 10 [32]. It might be thought that the Respondent's insistence that DW give evidence at the contested sentencing hearing would operate against the Respondent on the question of remorse.

30. A person who pleads guilty to a criminal offence is, of course, entitled to dispute facts (beyond the elements of the offence) for the purpose of sentence. Where such a dispute occurs, any contested questions of fact adverse to an offender, must be established to the criminal standard of proof: O'Neil-Shaw v R [2010] NSWCCA 42. An offender is not to be penalised because he or she disputes certain facts on sentence and requires the Crown to prove those facts.

31. The position is analogous to that of a person who goes to trial, who may not be penalised for the manner in which the defence at trial was conducted: Siganto v The Queen [1998] HCA 74; 194 CLR 656 at 666-667 [30] - [34]. However, as is made clear in Siganto v The Queen , a person who goes to trial is not entitled to mitigation for a plea of guilty.

32. Likewise, a person who pleads guilty but puts the Crown to proof on certain factual issues and who loses that dispute, is not entitled to the same discount for a plea of guilty, on utilitarian grounds, as a person who does not require such a contested hearing.

33. These observations will have no application to the determination of the present Crown appeal. However, as a matter of general principle, this Court should state that the utilitarian value flowing from a plea of guilty is not a fixed element, and is capable of erosion as a result of the manner in which the sentencing hearing is conducted. This involves no more than an acknowledgment of the fact that what may be gained in utilitarian terms as a result of the avoidance of a trial may be lost, also in utilitarian terms, by way of a protracted sentencing hearing involving the adducing of evidence and the consumption of public resources for a purpose ultimately determined adversely to an offender.

These comments resonate loudly in the present proceedings.

The Unlawful Development

The following facts were not controversial and were contained in an agreed statement of facts.

In June 2008, Abby's lodged eight development applications with the council, seeking approval under State Environment Planning Policy 53 for an eight state residential redevelopment of the property, involving the demolition of the two existing residential dwellings on each of the separate residential lots and staged the construction of five dual occupancy dwellings and the subdivision of the property into five separate lots, such that no more than two dwellings were present on a single lot.

In late February and early March 2006, the council determined each of the eight development applications by granting consents subject to conditions. These conditions relevantly included deferred commencement conditions in the case of three of the development consents.

The development consents granted for each stage were described in the statement of agreed facts as follows:

9.1. On 27 February 2006, the Council granted development consent for Stage 1 of the development [DA0689/05]. Stage 1 involved the demolition of the existing dwellings, swimming pool and out buildings, the consolidation of the two then-existing lots (No. 23 & No. 25) into one lot and the erection of an attached dual occupancy Dwellings A and B.

9.2. On 21 March 2006, the Council granted development consent for Stage 2 of the development. Stage 2 involved the Torrens Title subdivision of the Land so as to create separate lots for Dwellings A and B (Lot A and Lot B). That consent was subject to a condition that the subdivision certificate would not be issued until Stage 1 of the development had been completed to lock-up stage.

9.3. On 21 March 2006, the granted development consent for Stage 3 of the development. Stage 3 involved the erection of dwelling C as a detached dual occupancy on Lot A. That consent contained a deferred commencement condition as follows:

"1. Submission of documentary evidence that the Plan of Subdivision of proposed Lot A and Lot B has been registered at the Department of Lands. A copy of the registered title documents shall be submitted to Council for approval.

Note: The matters referred to in Schedule A must be completed to Council's satisfaction within two years from the date of this deferred commencement approval before the consent operates."

9.4. On 21 March 2006, the Council granted development consent for Stage 4 of the development. Stage 4 involved the Torrens Title subdivision of the Land so as to create separate lots for Dwellings A and C (i.e., to split Lot A into Lots A and C). As at the commission of the offence, that consent was subject to conditions that the subdivision certificate would not be issued until the developer had complied with all conditions of the development consents for Stage 1 (construction of dwelling A and B) and for Stage 3 (construction of dwelling C) had been complied with and a final occupation certificate had been issued for Dwellings A, B and C by the Principal Certifying Authority.

9.5. On 21 March 2006, the Council granted development consent for Stage 5 of the development. Stage 5 involved the erection of Dwelling D as a detached dual occupancy. That consent contained a deferred commencement condition:

"1. Submission of documentary evidence that the Plan of Subdivision of proposed Lot A and Lot B has been registered at the Department of Lands. A copy of the registered title documents shall be submitted to Council for approval.

Note: The matters referred to in Schedule A must be completed to Council's satisfaction within two years from the date of this deferred commencement approval before the consent operates."

9.6. On 21 March 2006, the Council granted development consent for Stage 6 of the development. Stage 6 involved the Torrens Title subdivision of the Land to create separate lots for dwellings B and D (i.e., to split Lot B into Lots B and D). As at the commission of the offence, that consent was subject to a condition that the subdivision certificate would not be issued until Stage 5 of the development (erection of Dwelling D) had been completed to lock-up stage.

9.7. On 21 March 2006, Council granted development consent for Stage 7 of the development. Stage 7 involved the erection of Dwelling E as a detached dual occupancy. That consent contained a deferred commencement condition:

"1. Submission of documentary evidence that the Plan of Subdivision of proposed Lot B and Lot D has been registered at the Department of Lands. A copy of the registered title documents shall be submitted to Council for approval.

Note: The matters referred to in Schedule A must be completed to Council's satisfaction within two years from the date of this deferred commencement approval before the consent operates."

9.8. On 21 March 2006, the Council granted development consent for Stage 8 of the development. Stage 8 involved the Torrens Title subdivision of the Land to create separate lots for dwellings D and E (i.e., to split Lot D into Lots D and E). As at the commission of the offence, that consent was subject to conditions that the subdivision certificate would not be issued until

9.8.1. the developer had complied with all conditions of the development consents for Stage 5 (construction of dwelling D) and for Stage 7 (construction of dwelling E); and

9.8.2. a final occupation certificate had been issued for dwellings D and E by the Principal Certifying Authority.

In summary:

(a) the first stage of the development (DA 689/05) involved the demolition of the pre-existing structures on the property and the erection of the first two dwellings (dwelling A and dwelling B). This stage of the development was lawfully carried out;

(b) the second stage of the development (DA 687/05) involved the Torrens title subdivision of the property into Lot A and Lot B such that dwelling A and dwelling B were situated on separate lots. This was required to occur before the erection of dwelling C, which was the third stage of the development;

(c) the erection of dwelling C (DA 688/05) was the subject of stage three of the development. Pursuant to the deferred development conditions attached to the relevant notice of determination, the consent did not become operative until such time as a plan of subdivision of Lot A and Lot B had been registered and documentary evidence of the subdivision and registration had been submitted to the council. Mr Abroon did not follow the sequence mandated by the staged consents. Instead he erected dwelling C without having effected the subdivision of Lot A and Lot B, and therefore, absent an operative development consent; and

(d) the erection of dwelling E (DA 693/05) was stage seven of the development. Pursuant to the deferred commencement conditions attached to the relevant notice of determination, the consent did not become operative until such time as a plan of subdivision of Lots B and D had been registered and documentary evidence of the subdivision and registration had been submitted to the council. Again, Mr Abroon did not follow the sequence mandated by the staged consents. He erected dwelling E without having effected the subdivision of Lots B and D. Furthermore, he had not completed the subdivision of Lot A and Lot B when dwelling E was erected.

It was not in dispute that after the commencement of these Class 5 proceedings, Abby's commenced Class 1 proceedings in the Land and Environment Court to regularise the unlawful development and that orders were made by consent on 28 June 2010, which included provision for the issuing of building certificates for the buildings constructed on Lots C and E. An unchallenged affidavit sworn by Mr Michael McMahon on 30 August 2010 (who was the solicitor instructed by Abby's in the proceedings) stated that the legal costs paid by Abby's in respect of these Class 1 proceedings amounted to approximately $41,486.

On 5 July 2010, the council issued building certificates for dwellings C and E.

Subsequently, on 14 September 2010, subdivision certificates were issued by the council.

Was Mr Abroon Aware That He Was Not Authorised to Build the Dwellings on Lots C and E?

As foreshadowed above, the overwhelming majority of the evidence at the hearing concerned the resolution of the factual contest between the version of events posited by Mr Abroon, and the conflicting factual account given by Mr Tsiontsis.

Evidence of the Council

In support of its submission that Mr Abroon was aware at the time of the construction of the dwellings on Lots C and E that the development was unlawful, the council relied on the evidence of two witnesses, first, Ms Kim Greenshields, and second, Mr Tsiontsis.

Ms Greenshields, the Development Compliance Officer with the council, swore an affidavit dated 30 October 2009. She deposed that on 19 February 2009, she conducted a formal interview at council chambers with Mr Abroon. Curiously, the affidavit indicated that, in error according to Ms Greenshield's oral evidence (and which is apparent from the content of the affidavit), "the purpose of the interview was to clarify queries in relation to stormwater works for the subject premises". Plainly it was not.

Ultimately, in my view, nothing turned on the mistake, the purpose of the interview clearly being to discuss with Mr Abroon the unauthorised development that had taken place on the property. Mr Abroon in no way suggested that he had attended the interview at the council under false pretences.

During the course of the interview Mr Abroon is alleged to have said to Ms Greenshields that:

(a) he was aware that the consents for the construction of dwellings C and E were deferred commencement consents that had not yet become operable. Furthermore, he was aware that no construction certificates for these approvals existed;

(b) he had been advised by "his builder" that his certifier, Mr Tsiontsis, had approved the commencement of the works;

(c) he started to construct dwellings A and B and because that consent gave approval to construct the driveway and to do landscaping, in order to complete these aspects of the development, "we got to the point where we had to commence the others", namely, dwellings C and E;

(d) it was only later that Mr Tsiontsis advised him that he had not given consent for the construction of the dwellings on Lots C and E; and

(e) he had spoken to Mr Tsiontsis, but not during the construction of dwellings C and E.

Ms Greenshields deposed that during the interview very brief handwritten notes were made by herself in order to make a contemporaneous typed memorandum of the conversation immediately after the meeting.

Attached to Ms Greenshields' affidavit were photographs of the development, including of the construction of dwellings C and E.

Also attached to Ms Greenshields' affidavit was a typed record of a telephone conversation between herself and Mr Tsiontsis on 20 May 2009. The record was constructed in a manner similar to the interview notes of her conversation with Mr Abroon, referred to above. In that conversation, Mr Tsiontsis told Ms Greenshields that:

(a) he was the PCA in relation to the dwellings constructed at the rear of the property, namely, A and B, and that he issued a construction certificate for the construction of these dwellings only;

(b) he was not aware that the dwellings at the front of the site were being constructed;

(d) he only dealt with Mr Abroon, although he acknowledged that Mr Abroon had a supervisor for the development;

(e) he did not recall having any conversations with Mr Abroon about the dwellings at the front of the property; and

(f) somewhat inconsistent with his earlier evidence, he recalled that the construction of the dwellings at the front of the property had commenced at the same time as the construction of the dwellings at the rear of the property.

Ms Greenshields was cross-examined to the following effect:

(a) that the purpose of the interview with Mr Abroon was not to discuss stormwater works associated with the construction on the property;

(b) that at all times Mr Abroon had provided assistance to and cooperated with the council in relation to its enquiries;

(d) that she had had prior dealings with Mr Tsiontsis when she had been employed by Parramatta Council and that on this basis she had formed an adverse assessment of his work practices, although she stopped short of describing him as "shonky";

(e) that her usual practice was to make brief handwritten notes either contemporaneously or immediately after important conversations and thereafter to turn the handwritten notes into a more detailed file note of the conversation. Ms Greenshields stated that the record of interview with Mr Abroon was constructed in this manner. Specifically, Ms Greenshields stated that she typed a file note of the conversation a few hours after it had occurred, that is to say, "while it was still fresh in my mind". Ms Greenshields was also able to confirm that the handwritten notes taken as a precursor to the reconstruction of the interview used by her in her affidavit had been written contemporaneously during her conversation with Mr Abroon;

(f) that when Mr Abroon referred to his "builder", he could have meant his construction foreman or supervisor; and

(g) that she recalled swearing another version of her affidavit that had omitted certain paragraphs, but that she was not certain and there was no evidence to substantiate this recollection.

With respect to this latter issue, the council relied on three further affidavits to demonstrate that, albeit as a matter of inference, no further affidavit of Ms Greenshields in relation to these proceedings existed. These were an affidavit of Mr David Taylor, the corporate counsel of the council, sworn 6 December 2010 and two affidavits of Ms Lesley Finn, a solicitor employed by HWL Ebsworth Lawyers, the solicitors of the council, sworn 6 and 23 December 2010 respectively.

These three affidavits were to the effect that comprehensive searches had been made of both the council's records and electronic communications between Ms Greenshields and HWL Ebsworth, and that no record could be found of any additional affidavit signed by Ms Greenshields, as suggested by her, in relation to these proceedings.

Ms Finn was cross-examined presumably in order to elicit evidence in support of a submission that either there was a further sworn affidavit of Ms Greenshields which had been rejected by the council and that it had not been produced in answer to a subpoena issued by Mr Abroon to HWL Ebsworth, or alternatively, that Ms Finn had been somewhat cavalier in her attempts to locate the so-called 'missing' affidavit.

The oral evidence of Ms Finn in this regard was emphatic. She stated that she had searched "through my file, my paper file and through file site and down at the IT desk to ascertain whether or not such an affidavit did exist". I have no hesitation in finding that the efforts of Ms Finn to locate the additional affidavit, if it ever existed, were more than reasonable in the circumstances.

Notwithstanding the strength of this testimony, Ms Greenshields was recalled by Mr Abroon and further cross-examined on the possibility that there was a further affidavit prepared and sworn for the purpose of these proceedings. In the result, Ms Greenshields, while nevertheless continuing to entertain "doubts", became considerably less certain that such an affidavit existed.

On the basis of the evidence of Mr Taylor and Ms Finn, and on the increasingly equivocal evidence of Ms Greenshields, I have no hesitation in dismissing the suggestion that there was a second affidavit sworn by Ms Greenshields in these proceedings. The evidence of her having signed a further affidavit rose no higher than a vague recollection about which even she conceded she was not "100% sure".

To the extent that there was an attempt to impugn the integrity and competency of Ms Finn in this regard, it is wholly without foundation and is emphatically rejected.

Mr Tsiontsis provided oral evidence pursuant to a subpoena to attend.

Mr Tsiontsis stated that he had had prior dealings with Mr Abroon in a professional capacity. In particular, he had acted as Mr Abroon's PCA on a number of previous developments, including a development at 347 Mona Vale Road, St Ives.

In relation to the present development, Mr Tsiontsis was adamant that he had only been appointed by Mr Abroon as the PCA for the construction of the dwellings at the rear of the property, namely, A and B. While he had noted that other dwellings were being constructed at the front of the property (specifically, dwellings C and E, the subject of the charges), he did not concern himself with these buildings because he had been told by Mr Abroon that another certifier had been appointed in respect of their construction.

Mr Tsiontsis categorically denied that he had ever advised Mr Abroon, as alleged by Mr Abroon, that construction certificates for dwellings C and E could be issued after their construction had been completed.

He also denied ever having had a conversation with Mr Abroon in December 2007 - although he accepted that he was in Sydney at the time - wherein he is alleged to have said to Mr Abroon, after Mr Abroon complained to him about the difficulty of complying with development conditions requiring him to build all driveways, install all water tanks, connect all utilities and complete all landscaping prior to constructing dwellings C, D and E, the following:

You go ahead and build the other townhouse. You already have a construction certificate for A and B, I will issue a construction certificate for the other [town]houses on completion, but you still have to book me for mandatory inspections as you have done for the other [town]houses A and B. You will also have to get your Structural Engineer to certify each structural stage.

It followed that Mr Tsiontsis vehemently refuted the claim by Mr Abroon that he had attended the property on 16 May 2008, for the purpose of carrying out an inspection on dwellings C and E, or for any other purpose. But Mr Tsiontsis was not able to recollect, without recourse to his records of inspection and date stamped photographs, when he had attended the property. In this regard, it is noted that Mr Tsiontsis kept no diary other than a calendar on a mobile phone, which had since been destroyed. Neither any of the photos of the property taken by him, nor his records of inspection, could confirm whether Mr Tsiontsis had attended the property for the purpose of an inspection on that day.

Finally, Mr Tsiontsis stated that he did not know who Mr Martin Motahari was (the construction foreman engaged by Mr Abroon to supervise the development on the property), and when the identity of Mr Motahari was pointed out to him in the courtroom, he denied ever having met the man.

However, it is fair to conclude that the cross-examination of Mr Tsiontsis impacted adversely on his credit with the result that, in my opinion, little, if any, reliance can be placed on his testimony. This conclusion is reached for the reasons below.

First and foremost, a series of emails were produced in which Mr Abroon had specifically requested Mr Tsiontsis to inspect (among others) dwellings C and E. On each occasion, the request was made by Mr Abroon, and on each occasion, while not expressly confirming that he would undertake the inspection as requested in the email, Mr Tsiontsis neither - as would be expected in light of his oral evidence - denied that he was the PCA for dwellings C or E nor did he state that he would not inspect the dwellings as requested. It was Mr Abroon's evidence that a number of inspections of dwellings C and E were carried out by Mr Tsiontsis in apparent conformity with the arrangement adverted to in the emails.

For example, an email sent by Mr Abroon on 30 March 2008 and responded to by Mr Tsiontsis on 2 April 2008 stated as follows:

23- 25 Stanley St St Ives inspections required

Abby Gail Abroon to john show detail 3/30/08 Reply

Dear John

Hi and how are you?

On Friday 4 th April, if it is ok with you, I am ready for an inspection for House C and D first floor slab and House E ground floor slab. I can meet you from 5am onwards on the same day. I hope this is suitable for you. Please confirm.

Regards

Abby

Reply Forward

John Tsiontsis to me

See you at 5am.

Regards,

John

Likewise an email dated 10 and 12 May 2008 stated:

Inspection 23-25 Stanley St, St Ives

Abby Gail Abroon to john show detail 5/10/08 Reply

Dear John

I would like to book an inspection for house A and B timber roof framing and house E first floor slab on Friday 16 th May, my birthday by the way. I wonder if an early inspection is ok with you,

concrete is booked for 7am so let me know what time you would like.

Regards Abby

Reply Forward

John Tsiontsis to me

Hi Abby,

I shall be onsite at 6am.

Regards, John

An email sent by Mr Abroon to Mr Tsiontsis on 7 September 2008 and responded to by Mr Tsiontsis on 8 September 2008 was in similar terms:

23-25 Stanley st St Ives

Abby Gail Abroon to john show detail 9/7/08 Reply

Dear John

Hi and how are you I hope you've been well. I was unable to contact you I've a question for you.

What is the minimum width required for the drive way at the boundary of the property to the councils land? I've looked at all our plans and I can't find any specifications. I intend to allow minimum six meters width for the drive way at 25 Stanley st, (this drive way will be shared by four town-houses) for the other drive way at 23 Stanley st I intend to allow a minimum of four metres width, (this is used by only one town-house). If you recall we've allowed similar dimensions at the previous project last year. As far as the progress of the project all storm water sever tanks and underground electrical cables have been installed internal and external doors have been installed, we are almost at the lock-up stage and the town-houses A, B and C all the bathroom tiling has been completed. I will need you to inspect shortly for bathroom water proofing of town-houses D and E.

Regards: Abby

Reply Forward

John Tsiontsis to me show detail 9/8/08 Reply

Hi Abbey,

Sorry Im just away on leave until next Monday.

The width of the driveway at the boundary is determined with your application for driveway crossing made to Council. Council will provide you the driveway specification adjoining the boundary.

Please contact me next Tuesday Morning to arrange preliminary final.

Best Regards

John Tsiontsis

When confronted with the emails, Mr Tsiontsis replied that he simply ignored the request from Mr Abroon to inspect dwellings C and E because he was not the certifier, a matter about which Mr Abroon was aware.

I do not find this explanation credible. This is because it is inconsistent with the repeated nature of the requests. That is to say, if Mr Abroon knew that Mr Tsiontsis would not certify dwellings C and E then why did he keep asking Mr Abroon to inspect them? Furthermore, the language used in the emails is inconsistent with any understanding between Mr Tsiontsis and Mr Abroon that Mr Tsiontsis would not inspect those dwellings because he was not the certifier. For example, in the first email quoted above (dated 30 March 2008) Mr Abroon says that he is "ready for an inspection for House C and D first floor slab and House E ground for slab" and asks if "5am onwards" is a suitable time. Mr Tsiontsis' reply "see you at 5am" is consistent with an acceptance of the invitation to inspect the dwellings referred to in the email. Other than to do as requested in the email, why else would Mr Tsiontsis agree to be on site at the time suggested by Mr Abroon?

In my view, the emails are suggestive of a contrary understanding between Mr Abroon and Mr Tsiontsis to that asserted by Mr Tsiontsis, namely, that Mr Tsiontsis would inspect dwellings C and E and would act, in a de facto capacity at least, as the certifier for the construction of those dwellings.

Second, under cross-examination Mr Tsiontsis conceded that he did "informally" attend dwellings C and E when he was at the property to "look at them" as a matter of "courtesy" to Mr Abroon. While Mr Tsiontsis stated that these visits were not inspections because he was not the PCA in respect of those dwellings, as indicated above I do not accept Mr Tsiontsis' explanation of the benign purpose of these visits.

Third, the evidence demonstrated that Mr Tsiontsis had unlawfully issued a retrospective construction certificate after works had commenced for the building of the dual occupancy dwellings at 347 Mona Vale Road. Mr Tsiontsis had been appointed the PCA for this development by Mr Abroon.

Fourth, Mr Tsiontsis acknowledged that apart from signage, identifying his certification company was on site, no other signage from another certifier had been observed by him displayed at the property.

Fifth, notwithstanding his evidence that he had never met or even laid eyes on Mr Motahari before, Mr Motahari gave compelling evidence that from time to time he witnessed Mr Tsiontsis inspect "various townhouses" under construction, including dwellings C and E. In particular, Mr Motahari saw Mr Tsiontsis inspect and criticise the waterproofing of the upstairs first floor main bathroom of dwelling C, and on 16 May 2008 he recalled seeing Mr Tsiontsis with Mr Abroon inspecting the first floor of dwelling E.

Notwithstanding that under cross-examination Mr Motahari agreed that not only had his affidavit been prepared with the considerable assistance of Mr Abroon, but moreover, that during the course of its preparation he and Mr Abroon had discussed its contents, his eyewitness accounts of Mr Tsiontsis' activities on the property in relation to dwellings C and E remained compelling and Mr Motahari resolutely adhered to his evidence. Overall, I found Mr Motahari to be a truthful witness with no demonstrated motive to lie. There being no reason presented to the Court to disbelieve his evidence, I accept it.

Sixth, Mr Tsiontsis' testimony to the Court was not consistent with Ms Greenshields' evidence, who I found to be a reliable witness.

As a consequence, I find that Mr Tsiontsis, while not having been formally appointed as the PCA in respect of dwellings C and E, acted as the de facto certifier in relation to the construction of those townhouses and, as Mr Abroon submitted, told Mr Abroon that he was willing to issue a construction certificate for the dwellings upon completion of their construction provided Mr Tsiontsis was afforded the opportunity to carry out mandatory inspections during each stage of the construction and provided that structural engineering certification was obtained.

But for the reasons expressed below, this does not equate to a finding that Mr Abroon was unaware that the construction of the dwellings on Lots C and E was not authorised. On the contrary, it is my firm finding that he was fully apprised of this knowledge at all relevant times.

Evidence of Mr Abroon

Mr Abroon swore an affidavit on 3 September 2010. In summary, his written evidence was to the effect that, first, he had engaged Mr Tsiontsis to be his PCA for the construction of all five townhouses (that is to say, all stages of the development), including those on Lots C and E. Second, when it became apparent to Mr Abroon that to construct the dwellings in the manner mandated by the staged development consents would create logistical problems and cause him to incur extra building expenses, he had built the townhouses in nonconformity with the conditions attached to the staged development consents. Third, Mr Abroon further testified that at all times he had relied on the advice given to him by Mr Tsiontsis, to the effect that this could be done, and at no time did he believe that what he was doing was unlawful.

Relevantly, Mr Abroon stated in his affidavit that:

(a) on 17 October 2007, Abby's engaged and appointed Mr Tsiontsis from Construction Certifiers Pty Ltd as the PCA for the development. The documentation attached to the affidavit evidenced the appointment of Mr Tsiontsis as PCA for a development of the following description pursuant to development consent "689/05 & S96":

PREMISES: 23-25 STANLEY STREET, ST IVES

DESCRIPTION: DEMOLITION OF EXISTING DWELLING, SWIMMING POOL AND OUTBUILDINGS AND ERECTION OF AN ATTACHED DUAL OCCUPANCY

(b) in December 2007, he telephoned Mr Tsiontsis and had a conversation with him to the following effect:

I said: "John, I am looking at these D/A's before starting to build the next townhouses, and it appears that I have to build all driveways, OSD tanks, landscaping, all the sewer, utilities such as gas, telephone and water and register the sub-division of A and B".

He said: "I know, I have read those conditions".

I said: "If I build these concrete driveways and OSD tanks and all the infrastructure then all of the concrete trucks and delivery trucks have to have access to it and drive over it".

He said: "you normally do these things at the end and not the beginning".

I said: "John, can you do something about this?".

He said: "I think I can help you".

I said: "what do you mean".

He said: "you go ahead and build the other townhouses".

I said: "what about the construction certificate and inspections".

He said: "you already have a construction certificate for A and B, I will issue a construction certificate for the other T/houses on completion, but you still have to book me for mandatory inspections as you have done for the T/houses A and B. You also have to get your Structural Engineer to certify each structural stage".

I said: "ok, thank you, I will call you for inspections as I need you."

(c) as a result of this conversation, he understood that Mr Tsiontsis, as the PCA, stood in the position of the council and that he could vary the terms of the development consents. Accordingly, when Mr Tsiontsis advised him that he could build dwellings C and E without first fulfilling the relevant deferred commencement conditions, Mr Abroon believed that he had authorised the construction of those dwellings. At no time did Mr Abroon "believe I was breaking the law";

(d) from time to time he telephoned Mr Tsiontsis and booked him in advance for mandatory inspections. If Mr Tsiontsis' phone was unattended, Mr Abroon sent Mr Tsiontsis an email in terms similar to those quoted above;

(e) on 30 March 2008, he sent an email (as quoted earlier in the judgment) to Mr Tsiontsis requesting an inspection on 4 April 2008 of the first floor suspended concrete slabs for townhouses C and D and the ground floor concrete slab for dwelling E. Mr Tsiontsis responded by email on 2 April 2008 stating that he would "see" Mr Abroon "at 5am";

(f) on 4 April 2008 at 5.00 am, Mr Tsiontsis inspected the first floor slab of dwelling C and told Mr Abroon that "it's all good, go ahead and pour concrete". The inspection lasted approximately one hour;

(g) on 10 May 2008, he sent an email to Mr Tsiontsis (also quoted above) requesting an inspection for 16 May 2008 for the timber roof framing for dwellings A and B and the first floor concrete slab for E, before 7am. Mr Tsiontsis replied by email stating "I will be onsite at 6am";

(h) at 6.00 am on 16 May 2008, Mr Tsiontsis inspected the first floor slab of dwelling E, together with the other townhouses, as requested by Mr Abroon;

(i) between 10 November and 17 December 2008, various council inspections of the site and dwellings took place and Mr Abroon filed a sub-division certificate application for townhouses A and B;

(j) on 23 December 2008, due to the fact that the council would not release the sub-division documents in respect of dwellings A and B (as they had been constructed prior to registering the sub-division), Mr Abroon telephoned Mr Tsiontsis to raise the issue with him and Mr Tsiontsis said to him that, notwithstanding his "inspections and certifications" of these dwellings, he would tell the council, if asked, that he did not "know anything about the front T/houses", but that Mr Abroon should not "worry too much" and that once construction was completed he could apply for a building certificate;

(k) accordingly, on 28 January 2009, Mr Abroon applied for a building certificate for dwellings C and E with the council;

(l) on 19 February 2009, Mr Abroon had a conversation with Ms Greenshields at the council wherein Ms Greenshields informed him that the council was concerned with the unauthorised construction of the townhouses at the front of the property (C and E). Mr Abroon told Ms Greenshields that the "entire job has been authorised, approved and inspected by the PCA and council officer". Upon being told that Mr Tsiontsis was Mr Abroon's PCA Ms Greenshields is alleged to have said "I know him, when I was working at Parramatta Council I had a dealing with him on another matter. He is shonky". Mr Abroon told Ms Greenshields that there were emails and correspondence passing between himself and Mr Tsiontsis proving Mr Tsiontsis' inspection and approval of the front townhouses;

(m) on 25 February 2009, Ms Greenshields and Mr Greg Evans of the council inspected all of the dwellings. Ms Greenshields told Mr Abroon that the townhouses were "quality built"; and

(n) on 15 July 2009, Ms Greenshields and Mr Evans inspected the property. Ms Greenshields said to Mr Abroon that notwithstanding his "honesty", the council would in all likelihood prosecute and fine him for the unlawful erection of dwellings C and E, but she reiterated that the dwellings were built to "a good standard and generally according to the approved plans".

In his affidavit Mr Abroon apologised to the Court and to the council, and stated that "at no time did I plan to break the law and I believed my PCA's advice was correct and lawful". He deposed that since he had discovered that the development was in breach of the consent, he had made every attempt to assist the council "and have not tried to hide information".

The cross-examination of Mr Abroon, however, did much to diminish the credibility of his sworn testimony.

First, it revealed that, contrary to the impression Mr Abroon sought to cultivate, he was in fact a sophisticated and experienced property developer. For example:

(a) Abby's was in the business of property development;

(b) Abby's owned three properties in St Ives: the old post office at 235 Mona Vale Road, where Abby's carried out development which comprised alterations and additions to convert the old post office into several commercial properties; the staged development of the property at 347 Mona Vale Road; and the property at 23-25 Stanley St. Each of these properties had been developed by Abby's in the period since 2004 or 2005;

(d) Mr Abroon had been engaged in a large development in Artarmon in 1987;

(e) Mr Abroon had experience in relation to property development extending over a period of between 15 to 20 years; and

(f) during 2005 and 2006 Mr Abroon actively lobbied the council on behalf of both himself and other commercial stakeholders in the St Ives precinct regarding the development of the St Ives Town Centre Master Plan and a new draft local environmental plan.

This evidence considerably undermined, in my opinion, Mr Abroon's written evidence, repeated in cross-examination, that he relied wholly on the advice given to him by Mr Tsiontsis, and that as a consequence, he believed that he could lawfully construct the dwellings in a manner contrary to the terms of the consent.

Second, it was revealed during cross-examination that Mr Abroon knew that dwellings C and D could only be built after the subdivision of Lots A and B had been registered and that dwelling E could only be constructed upon the erection of dwellings C and D and the further subdivision, and registration of that subdivision, of those townhouses.

Third, the questioning demonstrated that Mr Abroon was aware that the townhouses were not constructed by him in conformity with the sequence mandated by the consents, although he sought to justify his actions on the basis that: first, it would have been "impractical" and "almost impossible" to do so because it would have meant that a driveway and other infrastructure would have had to be built twice in order to satisfy the deferred commencement conditions; and secondly, because "this was all being waived by the PCA".

Fourth, Mr Abroon refused to concede that the consents were breached for financial reasons. Given the resultant financial savings to Mr Abroon by avoiding the duplication of associated construction costs consequential upon the breach of the consent, this position is, in my view, difficult to maintain.

Fifth, and inconsistent with the justification he gave to the Court for the unlawful construction, incredibly Mr Abroon stated that he was not aware at the time the development application was lodged that a staged development was being proposed, but believed that the application that was lodged was for a dual occupancy development. Mr Abroon stated that he relied on his town planner, Mr Glendinning, to prepare the application, which he did not read thoroughly before it was lodged.

Sixth, it demonstrated that Mr Abroon had previous experience with staged developments. In particular, the redevelopment of the property at 347 Mona Vale Rd. Prior to the construction certificate being issued for that development, Mr Abroon had received confirmation from the council that that the deferred commencement conditions had been satisfied. It could not, therefore, be suggested that he had had no prior experience with staged development and that, accordingly, he had failed to understand that the deferred commencement conditions required strict compliance.

Seventh, throughout his cross-examination Mr Abroon was non-responsive to the point of evasiveness.

Sentencing Principles and the Correct Approach to Sentencing

Section 3A of the Crimes (Sentencing Procedure) Act 1999 ("the CSPA") sets out the purposes of imposing a sentence on an offender. The most relevant purposes for which a sentence should be imposed on Mr Abroon are, in my view, those contained in ss 3A(a), (b), (e), (f) and (g) of that Act.

It is a basic principle of sentencing law that the sentence imposed by the Court for an offence must both reflect, and be proportionate to, the objective circumstances of the offence and the personal or subjective circumstances of the offender (Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 at 490 and Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472).

The correct method of sentencing is the instinctive synthesis method wherein the judge identifies all the factors relevant to the sentence and weighs their significance in determining an appropriate sentence (Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [35]-[39], [50]-[84] and [136]-[139]).

Section 21A of the CSPA further identifies matters that the Court must take into account when sentencing, including those in aggravation (s 21A(2)) and those in mitigation (s 21A(3)).

For reasons that will become apparent below, it is worth repeating the principles stated in the High Court in Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629 concerning the exercise of fact finding in sentencing proceedings. As was observed in Weininger (at [1]), typically this discussion falls under the rubric of onus and standard of proof in sentencing. Thus, a sentencing judge may not take into account facts adverse to an offender unless those facts have been established beyond reasonable doubt; and conversely, facts that are in favour of an offender need only be proved on the balance of probabilities ( Weininger at [18] citing the seminal decision in R v Olbrich [1999] HCA 54; (1999) 199 CLR 270).

But as the Court went on to state in Weininger, sometimes it is difficult, if not impossible, for a sentencing judge to make findings one way or the other about all matters relevant to the circumstances describing how an offender came to commit the offence (at [19] and [20], footnotes omitted):

19. For present purposes, however, attention to questions of onus and standard of proof may distract attention from another important aspect of the decision in Olbrich . Framing the question in terms of the onus and standard of proof may suggest that all disputed issues of fact related to sentencing must be resolved for or against the offender. That is not so. As was recognised in Olbrich , some disputed issues of fact cannot be resolved in a way that goes either to increase or to decrease the sentence that is to be imposed. There may be issues which the material available to the sentencing judge will not permit the judge to resolve in that way.

20. It had been submitted in Olbrich that, in sentencing a person knowingly concerned in the importation of narcotic drugs into Australia, it was necessary to classify that person's participation in the importation as that of a principal or a courier, and it was further submitted that, if it was not established beyond reasonable doubt that the offender was a principal, the offender should be sentenced as a courier. As the majority pointed out in Olbrich at 278, prosecuting authorities and a sentencing judge will often have only the most limited and imperfect information about how it was that the accused came to commit the offence for which he or she is to be sentenced. Although Crimes Act 1914 (cth) requires a sentencing judge to take account of the nature and circumstances of the offence, that requirement is not absolute. They are to be taken into account only to the extent that they are relevant and known to the court. The sentencing judge may not be able to make findings about all matters that may go to describe those circumstances. In particular, an offender may urge a particular view of the nature and circumstances of the offence, favourable to the offender. The sentencing judge may be unpersuaded that the view urged is, more probably than not, an accurate view of the circumstances. In such a case, it is not correct that the judge is bound to sentence the offender on that favourable basis, unless the prosecution proves the contrary beyond reasonable doubt at 280. Accordingly, in the particular facts of Olbrich , where the offender asserted that he was no more than a courier of the drugs, but the sentencing judge disbelieved him, it was neither necessary nor appropriate to sentence him on the basis that he was a courier.

In the present case, Mr Abroon asserted that his commission of the offences was inadvertent because Mr Tsiontsis had, as the PCA for the entire development, authorised the construction of the dwellings out of sequence from that mandated by the staged development consent conditions. Mr Tsiontsis, on the other hand, claimed that neither by his conduct, nor by his words, was any such authorisation or, for that matter, any such succor, provided to Mr Abroon that would give rise to such an understanding.

For the reasons given in this judgment, the factual account given by Mr Abroon as to his state of mind at the time of the commission of the offences is rejected. But as indicated above, equally I cannot find Mr Tsiontsis' evidence to be wholly reliable.

Ultimately, the Court will never know the precise terms of the arrangement between Mr Abroon and Mr Tsiontsis with respect to Mr Tsiontsis' role in certifying the development, however, and as Weininger makes clear, for present purposes this does not matter. It is sufficient that I, as I have, find beyond reasonable doubt that, at the time he constructed the townhouses on Lots C and E, Mr Abroon knew that he was building the dwellings in a manner contrary to the consents, and moreover, that Mr Abroon knew that Mr Tsiontsis could not authorise any alteration to the terms of the consents, even if he was the PCA for the entire development.

The Objective Circumstances of the Offence

The primary factor the Court must consider in determining an appropriate sentence is the objective gravity or seriousness of the offences. In determining the objective seriousness of the offences, the circumstances of any offences to which the Court may have regard include (Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [163], Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [110] and Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [48]):

(a) the nature of the offence;

(b) the maximum penalty for the offence;

(d) the offender's state of mind in committing the offence;

(e) the offender's reasons for committing the offence;

(f) the foreseeability of the risk of the harm to the environment;

(g) the practical measures available to the offender to avoid the harm to the environment;

(h) the offender's control over the causes of harm to the environment; and

(i) the offender's capacity to pay any monetary penalty imposed on him or her.

Nature of the Offences

A fundamental consideration of relevance to environmental offences is the degree to which the offender's conduct would offend against the legislative objectives expressed in the establishment of the statutory offence (Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [15] and Rawson at [49]).

The actions of Mr Abroon in carrying out the development of dwellings C and E absent operative development consents had the effect of undermining the planning controls enshrined in the EPAA. As was stated in Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 by Preston J, "there is a need for the upholding of the integrity of the system of planning and development control" (at [46]) (a similar sentiment was expressed in Gittany at [105]). In addition, Mr Abroon's conduct offended against the legislative objectives in s 5 of that Act, in particular, the promotion and coordination of the orderly and economic use and development of land (s 5(a)(ii)).

Maximum Penalty

The maximum statutory penalty is of significance in determining the objective gravity of the offences (Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698). The maximum penalty for each of the offences in question is $1,100,000 (s 126 of the EPAA). This demonstrates the seriousness with which Parliament views such offences.

Having said this, it must be recognised that there is a broad spectrum of matters that can give rise to an offence under s 125 of the EPAA (Council of the Municipality of Kiama v Pacific Real Estate (Warilla Pty Ltd) [2009] NSWLEC 191 at [71] and Cessnock City Council v Bimbadgen Estate Pty Ltd (No 2) [2011] NSWLEC 140 at [59]). The offences the subject of these proceedings are, for the reasons given below, at the lower end of spectrum.

Harm to the Environment

The extent of harm caused, or likely to be caused, by the commission of an offence can increase the objective seriousness of the offence.

The commission of the offences in this instance resulted in a contravention of the staging requirements of the development consents with the consequence that:

(a) dwellings C and E were erected without an operative development consent which precluded the grant of construction certificates and occupation certificates for those dwellings; and

(b) the erection of the dwellings without having registered the subdivisions which were supposed to precede their construction meant that there were multiple dwellings on a single lot contrary to the planning scheme proposed for the development for a period of approximately 10 weeks between 25 February and 7 May 2009.

However, while the commission of the offences by Mr Abroon clearly had the effect of derogating from the planning controls legislated by the EPAA (Lane Cove Council v Wu [2011] NSWLEC 43 at [45], Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89 at [35] and Bimbadgen at [62]), no actual harm resulted to the environment by their commission. For example, there was no evidence that any adjoining residential occupant had suffered any diminution to the amenity of their land as a consequence of the unlawful construction: building certificates were issued by the council for the townhouses constructed on Lots C and E; and subdivision certificates were ultimately issued by the council.

Moreover, and as was properly conceded by the prosecutor, this was not an instance where the council, as the consent authority, was denied the opportunity to consider and assess the proposed development. Nor were the adjoining occupants denied the opportunity of participating in the planning process culminating in the approval of the development.

In addition, the fact that what was ultimately constructed did not deviate from that which was approved by the council and was generally considered to be of good quality, must be taken into account.

Mr Abroon's State of Mind

A strict liability offence, such as those in question, that is committed intentionally, negligently or recklessly will be objectively more serious than one committed accidentally or inadvertently (Rae at [42], Gittany at [123] and Garrett v Freeman (No 5) [2009] NSWLEC 1; (2009) 164 LGERA 287 at [68]).

As the evidence demonstrates, it was a matter of considerable debate whether or not Mr Abroon had, as the prosecutor submitted, committed the offences deliberately or, as was advanced by Mr Abroon, inadvertently.

The council submitted that Mr Abroon was aware at the time of the commission of the offences that the construction of buildings C and E was in breach of the deferred commencement conditions and, critically, that he knew that Mr Tsiontsis could not "waive" these conditions.

By contrast, Mr Abroon submitted that at all times he had relied on the advice given to him by Mr Tsiontsis, who he believed was not only the PCA for each stage of the development, including the construction of the dwellings on Lots C and E, but who was authorised to amend the terms of the consents.

As is apparent from the criticisms I have made above concerning the truthfulness of Mr Abroon's evidence, I am unable to accept Mr Abroon's submissions in this regard and find to the requisite degree that Mr Abroon knew at the time he constructed dwellings C and E that he was doing so in breach of the consents. Mr Abroon admitted as much to Ms Greenshields during his interview with her and to the Court during his oral evidence. I also do not accept that Mr Abroon believed that Mr Tsiontsis could "waive" or amend the relevant conditions in the manner proposed, thereby sanctioning Mr Abroon's conduct.

As found above, Mr Abroon is, despite his protestations to the contrary, an experienced property developer. He has had at least 15 to 20 years of property development experience prior to embarking upon the project at 23-25 Stanley Street. He has been involved in at least three other property developments, including the staged development at 347 Mona Vale Rd. He has lobbied the council on planning policy.

In support of his argument that the offences had been committed inadvertently, Mr Abroon drew upon the circumstances leading to the successful development of 347 Mona Vale Rd. Mr Abroon contended that because the council was not concerned with the irregularities surrounding the construction of the dwellings on that property, given the similarities between that development and the subject development, he never once contemplated that his actions at 23-25 Stanley St were unlawful.

These irregularities included non-compliance with some of the deferred commencement conditions of the staged development and the issuing of a construction certificate by Mr Tsiontsis after building work had commenced on one of the dwellings forming part of the development. Despite the council seemingly having knowledge of these irregularities (a council officer had visited the site on several occasions), the council was nevertheless prepared to issue a subdivision certificate and to determine that the deferred commencement conditions had been satisfied. In relation to the latter determination, Mr Abroon relied on curious correspondence sent from the council to Abby's notifying it of the non-compliance with the conditions both before and after the council determined that the deferred commencement consent conditions had been satisfied.

Thus, Mr Abroon submitted, by reason of council's inaction over the irregularities associated with the development at 347 Mona Vale Rd, or at the very least its preparedness to be flexible with respect to the timing of compliance with the deferred commencement conditions, Mr Abroon did not believe that he was acting improperly in respect of the Stanley St development, and therefore, he had been "misled as to the state of the law" by the council's conduct.

But in my opinion this contention cannot be sustained. As the prosecutor submitted, the development at 347 Mona Vale Rd tolerably demonstrated to Mr Abroon that it was not the PCA's responsibility to relieve Mr Abroon from compliance with his obligations under the staged development consents, it was the council's. In my view, the correspondence plainly establishes this. Furthermore, it transpired that during the course of that development Mr Abroon had attended a meeting with the council (and not Mr Tsiontsis) to amend a condition requiring the creation of a drainage easement prior to occupation certificates being issued. In addition, although Mr Tsiontsis was prepared to issue a retrospective construction certificate for one of the dwellings, he had not been prepared to do so prior to notification from the council that the deferred commencement conditions had been satisfied. In my opinion, this demonstrated to Mr Abroon that Mr Tsiontsis was neither willing to, nor capable of, waiving the requirements of the deferred commencement consent.

There can be no doubt, therefore, that based on his experiences at 347 Mona Vale Rd, Mr Abroon understood with abundant clarity the respective roles of the PCA and the council in the context of a staged property development. Specifically, it may be inferred that Mr Abroon properly understood that any variation of the deferred commencement conditions could only be effected by the council.

In these circumstances, and in light of the difficulties expressed above concerning Mr Abroon's credit, I find it inconceivable that Mr Abroon truly believed that Mr Tsiontsis could, even if it were accepted that Mr Tsiontsis was the PCA for all of the dwellings, and irrespective of the previous development at 347 Mona Vale Rd, amend the deferred commencement conditions imposed by the council to permit Mr Abroon to carry out the development in a more expedient and practical manner.

It follows that for the reasons expressed above, I find beyond reasonable doubt that Mr Abroon committed the offences intentionally.

But having found this, I unable to accept the evidence of Mr Tsiontsis in its entirety. In particular, I reject his assertions that he either never inspected dwellings C and E or, to the extent that he did, it was only done as a matter of "courtesy" to Mr Abroon. As reasoned above, the email evidence and the evidence of Mr Motahari invites the strong inference that he did exactly as requested by Mr Abroon.

But to find that Mr Tsiontsis inspected Lots C and E does not equate to a finding that he was the PCA appointed in respect of those townhouses. In this regard the evidence is equivocal. On the one hand, all of the documentation issued by Mr Tsiontsis refers to a single dual occupancy dwelling, which supports his claim that he was only appointed as the PCA for Lots A and B. On the other hand, I have found that Mr Tsiontsis did in fact carry out inspections on the dwellings at Lots C and E. The better inference, and one which I am prepared to entertain on the balance of probabilities, is that, absent any formal appointment of Mr Tsiontsis as the PCA in relation to Lots C and E, for all intents and purposes he was prepared to act as the de facto PCA for the construction of those townhouses and to issue construction certificates in respect of them. In this regard, I accept as accurate the conversation Mr Abroon claims he had with Mr Tsiontsis in December 2007.

I also accept as accurate the conversation that Mr Abroon had with Mr Tsiontsis on 23 December 2008, wherein Mr Tsiontsis told Mr Abroon that he could apply for a building certificate in relation to the dwellings on Lots C and E once the construction was completed but that, if pressed, he would deny any knowledge of the construction on those Lots.

However, and as I reiterate, these findings do not assist Mr Abroon given the conclusion I have reached as to his state of mind at the time of the commission of the offences.

The fact that Mr Abroon intentionally committed the offences to which he has pleaded guilty serves to augment the objective gravity of the criminal acts. As McClellan J observed in Bankstown City Council v Taouk Constructions Pty Ltd [2004] NSWLEC 402 (at [20]):

20. It is a very serious matter particularly when an experienced developer decides, for its own financial gain, to proceed to construct part or all of a development knowing that consent is required and also knowing that that consent has not been obtained. If many people were to take that course, the system of development control which has existed in this State now for more than fifty years would be seriously undermined to the disadvantage of the whole community.

Reasons for the Commission of the Offences

A factor by which the objective seriousness of an offence may be augmented is the reason for its commission (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366; Bentley at [237]; Gittany at [140]; Rae at [47]). If the offence is found to be committed for financial gain this will increase its objective seriousness (Gittany at [141], Bentley at [246]-[247], Scahill at [82] and CSPA s 21A(2)(o)).

Notwithstanding Mr Abroon's submission to the contrary, there can be no doubt that the deliberate decision made by Mr Abroon to construct the buildings in breach of the terms of the consents was made for reasons of financial advantage or, put another way, the commission of the offences was commercially motivated. This commercial motivation was the reduction of his construction costs. Even if, as Mr Abroon stated in his written and oral evidence, the dwellings were constructed contrary to the consents as a matter of practical necessity, I find beyond reasonable doubt that this resulted in a tangible financial saving to him and in this sense, Mr Abroon derived a financial benefit from his unlawful acts. The avoidance of these additional costs is, on any view, a commercial gain to Mr Abroon and an aggravating factor increasing the objective seriousness of the offences (s 21A(2)(o) of the CSPA).

Foreseeability of the Risk of Harm

The extent to which Mr Abroon could reasonably have foreseen the harm caused by the commission of the offences is a relevant factor to be taken into account in the determination of sentence (Plath at [48]).

Having regard to the circumstances surrounding the construction of the dwellings as found above, I find that Mr Abroon could reasonably have foreseen that to construct the townhouses in a manner contrary to the terms of the consents would cause harm to the integrity of the planning system.

Practical Measures to Prevent Harm

In light of the Court's findings concerning Mr Abroon's state of mind at the time of the commission of the offences, Mr Abroon could have ensured that the dwellings on Lots C and E were constructed in accordance with the conditions of the consents. In other words, Mr Abroon could have prevented the harm caused by his unlawful behaviour by constructing the buildings in the sequence required by the staged development approval irrespective of how "impractical" it was to do so.

Control Over the Causes of Harm

Mr Abroon, as the owner-builder of the development on the property and as the person who, according to the evidence of Mr Motahari, directed what work was to performed and, as the emails to Mr Tsiontsis demonstrate, organised the contractors and arranged the inspections, had complete control over the events that that gave rise to the offences and caused the ensuing harm.

The Offences Are of Low to Moderate Objective Gravity

Having regard to the factors discussed above, and in particular, allowing for the limited degree of harm caused by the commission of the offences but bearing in mind their deliberate nature, I find that the offences committed are of low to moderate objective gravity.

Subjective Circumstances of Mr Abroon

A proportionate sentence requires the Court to take into account any mitigating factors that are personal to Mr Abroon (Rae at [55] and s 21A(3) of the CSPA).

The subjective circumstances of Mr Abroon to be considered relevantly include:

(a) whether Mr Abroon has a prior criminal record (s 21A(3)(e) of the CSPA);

(b) Mr Abroon's good character, if any (s 21A(3)(f));

(c) whether Mr Abroon cooperated with, and provided assistance to, the regulatory authorities in the investigation and prosecution of the offences (s 21A(3)(m));

(d) whether, and if so when, Mr Abroon entered his pleas of guilty (21A(3)(k));

(e) whether Mr Abroon has expressed contrition and remorse for the commission of the offences (s 21A(3)(i));

(f) whether Mr Abroon is likely to pay the prosecutor's legal and investigation costs of the proceedings; and

(g) whether Mr Abroon has the financial capacity to pay any likely monetary penalty imposed (s 6 of the Fines Act 1996).

Prior Criminality of Mr Abroon

Mr Abroon has no prior convictions for any offence (s 21A(3)(e) of the CSPA).

Prior Good Character of Mr Abroon

I accept, absent any evidence to the contrary, that Mr Abroon is a person of good character (s 21A(3)(f) of the CSPA). A number of references attesting to his good character notwithstanding the commission of the offences were put before the Court, which the Court has considered.

Mr Abroon's Assistance to and Cooperation With the Prosecutor

As the evidence of Ms Greenshields revealed, Mr Abroon has cooperated fully with the prosecutor throughout the conduct of this matter. This commenced with the council's initial investigation, continued through to the voluntary submission to an interview with the council, and culminated in the filing of the statement of agreed facts (ss 21A(3)(m) and 23 of the CSPA).

Early Pleas of Guilty

Mr Abroon pleaded guilty to the offences at a very early stage in the proceedings, but not at the first available opportunity. Having said this, were it not for the protracted conduct of the sentence proceedings by Mr Abroon, the utilitarian value of the very early pleas of guilty would have remained high, warranting a discount of close to the full 25% (R v Thomson; R v Houlton [2000] NSWCCA 309 (2000) 49 NSWLR 383 at [152]-[155]; , Rae at [63] and see also ss 21A(3)(k) and 22(1)(a) of the CSPA).

However, for the reasons discussed earlier in this judgment, the subsequent conduct of Mr Abroon during the course of the sentence hearing resulted in this utilitarian value being severely eroded. In these circumstances, a discount of no more than 20% is appropriate.

The Contrition and Remorse Expressed by Mr Abroon

The contrition and remorse of an offender is able to be taken into account as a mitigating factor in determining the appropriate sentence for an offence (s 21A(3)(i) of the CSPA). Remorse for the commission of the offences with which Mr Abroon has been charged has been expressed by him in his affidavit and orally during cross-examination. I take this into account.

I do not, however, give these expressions of contrition significant weight. This is because it cannot be said that Mr Abroon has demonstrated that he has accepted full responsibility for his actions. On the contrary, Mr Abroon has sought, wherever possible, to blame others for the commission of the offences, for example, Mr Tsiontsis, Mr Glendinning and the council. Further, I am also troubled by Mr Abroon's admission in cross-examination that he did not initially want to plead guilty but only did so upon the advice of his barrister (T287.28):

I said if I come to you for advice and you said to me plead guilty to this offences which my barrister said Mr Djemal and I didn't want to originally, I said this is what happened. He says there's a thing called strict liability my friend.

Of course it is not uncommon, upon subsequent reflection, for an offender to come to accept full responsibility for his or her unlawful acts and to genuinely feel contrition and remorse for what has occurred. But the inference to be drawn from Mr Abroon's conduct during the proceedings was that of an individual who was reluctant to admit that he was in the wrong.

Costs

There is no question that this Court is empowered to order an offender to pay the prosecutor's legal and investigation costs of the proceedings (as specified or as may be determined pursuant to ss 257B and 257G of the Criminal Procedure Act 1986).

The payment of a prosecutor's costs is an aspect of punishment (Environment Protection Authority v Barnes [2006] NSWCCA 246 at [78] and Rae at [68]) and may be considered in the determination of the appropriate penalty, including as a factor that acts in the reduction of any penalty to be imposed.

Mr Abroon has agreed to pay the prosecutor's reasonable costs of the proceedings. However, Mr Abroon disputes that the council is entitled to all of the costs it claims (estimated to be over $117,000 as at 3 February 2011). No criticism is made of Mr Abroon in this regard. To the extent that Mr Abroon cavils with the quantum of these costs, this is ultimately a matter for assessment.

Mr Abroon also submitted that the Court ought to have regard to the payment by Abby's of $41,486 in legal fees in respect of the Class 1 proceedings commenced by it to regularise the development the subject of the charges. I do not agree. These costs represent no more than the cost of Mr Abroon complying with the staged consents, something he was always obliged to do in any event.

Mr Abroon's Financial Capacity to Pay a Fine

In support of a submission that he had limited capacity to pay anything other than a fairly nominal monetary penalty, Mr Abroon adduced evidence in the nature of balance sheets and financial statements of Abby's, a statement of assets and liabilities of himself and his wife, Mrs Gail Abroon, prepared by a chartered accountant, a NAB bank statement for an account in the name of himself and his wife, and income tax returns for both himself and his wife.

Not only was this material not attached to Mr Abroon's affidavit, it was served too late to be tested by the prosecutor in the traditional way, that is, by the issuing of notices to produce and subpoenas. Although the material was admitted into evidence without objection from the council, an application to reopen Mr Abroon's case to permit further evidence on this topic to be given by him in chief was, however, refused by the Court on the grounds of prejudice to the prosecutor.

I find that there is no cogent evidence that Mr Abroon will be unable, or indeed have any difficulty, satisfying any monetary penalty imposed by the Court. To the extent that the Court was requested to infer otherwise by reason of the financial information provided by him, the following observations may be made. First, I consider the financial information provided on behalf of his wife, and albeit to a lesser extent, Abby's, to be largely irrelevant. These proceedings concern the appropriate penalty to be imposed on Mr Abroon and not on either of these entities. Second, because of the prosecution's inability to properly test the financial material, I cannot be confident that it represents a complete picture of Mr Abroon's finances. Third, the statement of assets and liabilities demonstrates that Mr Abroon has net assets of approximately $1.5 million. On any view, this is adequate to pay any fine likely to be imposed by the Court. Fourth, while the liquidity of the assets may be a relevant consideration, for example, if the quantum of the fine imposed would force the sale of the family home, this cannot be a serious consideration in the present case.

Conclusion on Subjective Considerations

The subjective considerations of Mr Abroon operate to mitigate the penalty to be imposed.

The Appropriate Sentence to be Imposed on Mr Abroon

The imposition of a sentence serves a number of purposes. As s 3A of the CSPA sets out, these purposes include retribution and denunciation, as well as deterrence, both specific and general.

Deterrence, Denunciation and Retribution

The sentence must be sufficient to specifically deter the offender from repeating the conduct that resulted in the commission of the offence in the future in the hope that only nominal penalties will be applied. There is also a need for the sentence to have embedded in it an element of general deterrence to promote the objects of the EPAA and to ensure that others engaged in the building trade do not carry out unapproved works (Plath v Hunter Valley Property Management Pty Ltd [2010] NSWLEC 264 at [34], Scahill at [109] and Axer at 367). In Scahill Preston CJ appositely stated (at [46]-[47]):

46 There is a need for the upholding of the integrity of the system of planning and development control. This system depends on persons taking steps to obey the law by ascertaining when development consent is required and then obtaining development consent before carrying out development: Byron Shire Council v Fletcher [2005] NSWLEC 706; (2005) 143 LGERA 155 at [60]-[61]; Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349 at [72]-[80]; Byers v Leichhardt Municipal Council [2006] NSWLEC 82 at [83], [85]; Gittany Constructions Pty Ltd v Sutherland Shire Council at [104]; and Garrett v Freeman (No 5) (2009) 164 LGERA 287 at [58]. Development must be carried out in accordance with the terms of the development consent obtained: Gittany Constructions Pty Ltd v Sutherland Shire Council at [105].

47 The sentencing purpose of general deterrence is particularly relevant where the offender is in a business or industry that undertakes development or action that is regulated by the system of planning and development control. Persons and corporations engaged in demolition, excavation, and building and development work need to be warned by the sentence imposed by courts in cases involving unlawful demolition, excavation, and building and development work that all necessary consents must be obtained and complied with: Mosman Municipal Council v Menai Excavations Pty Ltd at [2002] NSWLEC 132; (2002) 122 LGERA 89 at [31], [32], [35]; Sutherland Shire Council v Nustas [2004] NSWLEC 608 at [18]; Byron Shire Council v Fletcher [2005] NSWLEC 706; (2005) 143 LGERA 155 at [62]; Kari & Ghossayn Pty Ltd v Sutherland Shire Council [2006] NSWLEC 532; (2006) 150 LGERA 231 at [68(e)].

Similar sentiments were expressed in Keir v Sutherland Shire Council [2004] NSWLEC 754 (at [12], [13] and [15]), Lahood v Strathfield Municipal Council [2007] NSWLEC 714 (at [20]) and Holroyd City Council v Shi [2007] NSWLEC 797 (at [11]). These comments were more recently echoed by Biscoe J in Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 (at [47]).

The prosecution submitted that an element of specific deterrence was warranted. Mr Abroon submitted that the inconvenience and expense of the Class 1 proceedings was sufficient deterrence and the exercise ensured that similar offences would not be committed by him in the future. Notwithstanding Mr Abroon's submission, the Court is convinced that consideration ought to be given to this element in the determination of an appropriate sentence. This conviction derives from Mr Abroon's lack of full candour in describing his state of mind at the time he committed the offences and his continual attempts to deflect blame away from himself.

Accordingly, the Court takes into account the need for specific deterrence in relation to Mr Abroon.

The sentence of this Court is a public denunciation of Mr Abroon and must ensure that he is held accountable for his actions and is adequately punished (Rae at [8]--[9], Plath v Glover [2010] NSWLEC 119 at [67] and ss 3A(a) and (e) of the CSPA).

Consistency in Sentencing

A relevant consideration in sentencing is the ascertainment of the existence of a general pattern of sentencing by the Court for offences such as the offences in question ( Gittany at [179]-[182] and Rae at [69]). The proper approach is for the Court to look at whether the sentence is within the range appropriate to the gravity of the particular offences and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range ( Gittany at [182]).

Of course care must be taken because each case is different and a sentence in one case does not demonstrate the limits of a sentencing judge's discretion (Axer at 365, Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at 312 and Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 272 ALR 465 at [54]).

Despite numerous authorities warning against the vice of unauthorised construction, the cases are replete with sentences of varying severity that have been imposed on offenders who have engaged in construction either absent, or contrary to, development consent.

For present purposes, the available range of penalties for offences of a similar nature has been usefully summarised in a number of recent decisions of this Court (Council of the Municipality of Kiama v Furlong [2009] NSWLEC 139 at [35]-[41] per Pain J, Pacific Real Estate (Warilla) at [112]-[115], Bimbadgen at [99]-[102] and Hurstville City Council v Naumcevski [2011] NSWLEC 226 at [89]-[91]).

For the sake of brevity I do not repeat in full the summary contained in the curial quartet referred to above. Suffice it to say that I have had regard to the analyses of comparable sentences referred to in those cases in determining Mr Abroon's penalty.

I also note that in Naumcevski , the offender carried out excavation works that had not been authorised by the development consent. He was fined $14,000 after applying a discount of 30% in circumstances where he committed the offence recklessly (the offender failed to clarify ambiguous plans), where the offence was not committed for reasons of financial gain, where he genuinely expressed sorrow for his actions, where he provided assistance to the authorities and where he pleaded guilty early and had no prior convictions.

The Court was also referred to the following three additional authorities concerning breaches of deferred development consents, which, Mr Abroon submitted, were of greater relevance. First, in Kiama Municipal Council v Gerroa Boat Fisherman's Club Ltd [2010] NSWLEC 72, the offence involved three occasions upon which a club used part of its premises to hold functions absent consent to do so. A deferred development consent had been granted by the council to hold functions on the premises but the deferred commencement conditions had not been satisfied by the club and thus the hosting of functions had been, on each occasion, unlawful. Although the Court found that the breaches were intended, the subjective circumstances of the club mitigated to a considerable degree the penalty to be imposed, which was a fine of $14,000. The club had agreed to pay the council's costs in the agreed sum of $15,000.

Second, in the Council of the Municipality of Kiama v Micallef [2009] NSWLEC 202, the Court fined the offender $8,000 and ordered him to pay the council's costs of $10,000. The offender obtained a deferred development consent to demolish and replace a dwelling house on a property he owned. The deferred commencement conditions required the furnishing of a hydrological report to the council for approval prior to work commencing. This was not done. The offender committed the offence either recklessly or negligently, but not intentionally, regularised the completion and use of the house, expressed remorse, pleaded guilty early and cooperated fully with the authorities.

Third, in North Sydney Council v Littlemore [2003] NSWLEC 336; (2003) 132 LGERA 116, no conviction was recorded against an offender who allowed building work to proceed for the erection of a dwelling house without a construction certificate having been issued. The conditions attaching to the consent demanded that various subsidiary matters be completed to the satisfaction of the council, or an accredited certifier, prior to the issue of a construction certificate. The consent operated so that these matters had to be completed before the certificate could issue and the building work could commence. One of the matters included the need to obtain an easement. The offender authorised the work to commence absent having obtained the easement. Later, and after he received advice, the consent was modified to remove this condition, a change that, had it been incorporated into the original consent, would have removed the problem giving rise to the commission of the offence. Notwithstanding that the offender was of limited financial means, he agreed to pay the council's costs, estimated to be in the order of $28,000. He entered a guilty plea at the earliest opportunity, was contrite, and, although he intentionally committed the offence, did not seek to gain any personal benefit from his actions. Rather, at all times he was seeking to manage a practical problem in an effective way. Given the trivial nature of the offence and having regard to the personal circumstances of the defendant, the Court exercised its discretion under s 10 of the CSPA and found the offender guilty of the offence without any additional sentence being imposed.

I do not accept, as Mr Abroon submitted, that there is, at least on the facts of these proceedings, anything unique about his breach of the deferred commencement conditions that would warrant the Court focusing exclusively on this more narrow category of cases for the purpose of any priority in sentencing. On any description, the present facts have given rise to a development without operative consent sufficiently analogous to cases where there has been breach of an operative consent, such that assistance may be derived from a study of the pattern of sentencing in that broader category of decisions.

I also reject, to the extent that it was suggested by Mr Abroon, that the offences in question ought, as they were in Littlemore , to be characterised as so trivial that they would attract only a nominal fine. Having said this, it is acknowledged, notwithstanding their deliberate nature, that the commission of the present offences is towards the lower end of the spectrum of seriousness.

Totality Principle

It was submitted by Mr Abroon that, because the two offences arose out of the same factual substratum, the totality principle should apply. I accept this submission (Gittany at [196], [199]-[200]).

Accordingly, in reviewing the aggregate penalty assessed by reference to the individual penalties imposed for the offences, the Court must justly and appropriately impose a sentence that reflects the overall total criminality of Mr Abroon (Lee v Office of Environment and Heritage [2012] NSWLEC 9 at [67]).

In the present case, the commission of the two offences effectively arose out of the same act and comprised a single course of criminal conduct by Mr Abroon. In this context it is necessary that the penalty for the second offence (the constructions of dwelling E) be reduced.

The Appropriate Penalty

In my view, the appropriate penalty for each offence is a fine. The amount of the fine is determined by, as stated above, the instinctive synthesis of all of the relevant objective and subjective circumstances of the offence and the offender.

Taking into account each of the objective circumstances, as mitigated by the subjective factors referred to above, and in particular, the absence of actual environmental harm caused by the commission of the offences, the intentional nature of the commission of the offences and the fact that, as found, the offences were committed for financial gain, the utilitarian value of the early plea of guilty, albeit diminished by Mr Abroon's conduct of the proceedings, the application of the totality principle and having regard to the sentences imposed in comparable cases, I consider that the appropriate penalty in respect of the first offence is a fine of $30,000 discounted by a total of 25%, which amounts to a total of $22.500. In respect of the second offence, I consider a fine of $20,000 discounted by 25% is appropriate, or $11,250. This brings the total fine in respect of both offences to $33,750.

Orders

The orders of the Court are therefore as follows:

(1) Mr Abroon is convicted of both offences as charged;

(2) in respect of the first offence (no 50079 of 2009) Mr Abroon is fined the sum of $22,500;

(3) in respect of the second offence (no 50078 of 2009) Mr Abroon is fined the sum of $11,250;

(4) pursuant to s 257B of the Criminal Procedure Act 1986 Mr Abroon is to pay the council's legal and investigation costs as determined under s 257G(b) of that Act in respect of both offences; and

(5) the exhibits are to be returned.

**********

Decision last updated: 22 February 2013

Medium Neutral Citation:	Ku-ring-gai Council v Abroon (No 3) [2012] NSWLEC 12
Hearing dates:	3 and 6 December 2010, 20 and 21 January, 3 and 11 February 2011
Decision date:	10 February 2012
Jurisdiction:	Class 5
Before:	Pepper J
Decision:	The orders of the Court are as follows: (1) Mr Abroon is convicted of both offences as charged; (2) in respect of the first offence (no 50079 of 2009) Mr Abroon is fined the sum of $22,500; (3) in respect of the second offence (no 50078 of 2009) Mr Abroon is fined the sum of $11,250; (4) pursuant to s 257B of the Criminal Procedure Act 1986 Mr Abroon is to pay the council's legal and investigation costs as determined under s 257G(b) of that Act in respect of both offences; and (5) the exhibits are to be returned.
Catchwords:	SENTENCING: staged development -development without operative consent -- guilty plea - relevant sentencing principles - no environmental harm - offences committed intentionally - fine imposed
Legislation Cited:	Civil Procedure Act 2005 Crimes (Sentencing Procedure) Act 1999, ss 3A, 10, 21A, 22, 23 Criminal Procedure Act 1986, ss 257B, 257G Fines Act 1996, s 6 Environmental Planning and Assessment Act 1979, ss 5(a)(ii), 125, 126
Cases Cited:	Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Bankstown City Council v Taouk Constructions Pty Ltd [2004] NSWLEC 402 Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 lgera 304 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Cessnock City Council v Bimbadgen Estate Pty Ltd (No 2) [2011] NSWLEC 140 Council of the Municipality of Kiama v Furlong [2009] NSWLEC 139 Council of the Municipality of Kiama v Micallef [2009] NSWLEC 202 Council of the Municipality of Kiama v Pacific Real Estate (Warilla Pty Ltd) [2009] NSWLEC 191 Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 Environment Protection Authority v Barnes [2006] NSWCCA 246 Garrett v Freeman (No 5) [2009] NSWLEC 1; (2009) 164 LGERA 287 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 272 ALR 465 Holroyd City Council v Shi [2007] NSWLEC 797 Hurstville City Council v Naumcevski [2011] NSWLEC 226 Keir v Sutherland Shire Council [2004] NSWLEC 754 Kiama Municipal Council v Gerroa Boat Fisherman's Club Ltd [2010] NSWLEC 72 Lahood v Strathfield Municipal Council [2007] NSWLEC 714 Lane Cove Council v Wu [2011] NSWLEC 43 Lee v Office of Environment and Heritage [2012] NSWLEC 9 Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89 North Sydney Council v Littlemore [2003] NSWLEC 336; (2003) 132 LGERA 116 Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 Plath v Glover [2010] NSWLEC 119 Plath v Hunter Valley Property Management Pty Ltd [2010] NSWLEC 264 Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 R v AB [2011] NSWCCA 229; (2011) 59 MVR 356 R v Olbrich [1999] HCA 54; (2000) 49 NSWLR 383 R v Thomson; R v Houlton [2000] NSWCCA 309 Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629
Category:	Principal judgment
Parties:	Ku-ring-gai Council (Prosecutor) Mr Abbas Abroon (Defendant)
Representation:	Mr T Howard (Prosecutor) Mr A Djemal (Defendant) (3 and 6 December 2010) and Ms H Irish (20 and 21 January and 3 February 2011) HWL Ebsworth (Prosecutor) M E McMahon & Associates (Defendant)
File Number(s):	50078 and 50079 of 2009