Moseley v Queanbeyan-Palerang Regional Council (No 2)

[2017] NSWLEC 52

Land and Environment Court

New South Wales

Medium Neutral Citation:	Moseley v Queanbeyan-Palerang Regional Council (No 2) [2017] NSWLEC 52
Hearing dates:	10 February 2017
Date of orders:	09 May 2017
Decision date:	09 May 2017
Jurisdiction:	Class 6
Before:	Pain J
Decision:	(1) The conviction appeal in relation to Local Court file no 16/3540 is dismissed. (2) The sentencing appeal in relation to Local Court file no 16/3540 is upheld. (3) The Appellant is fined $4,000 and required to pay Local Court costs of $12,000. (4) The Appellant is to pay the Respondent’s costs of the conviction appeal. (5) Order 4 is postponed for 12 months. (6) The exhibits be returned.
Catchwords:	APPEAL – appeal from Local Court against severity of sentence – objective seriousness of offence of carrying out excavation and fill development without development consent in rural zone – mitigating factors – application of s 10(1) of Crimes (Sentencing Procedure) Act 1999 considered – capacity to pay a fine taken into account in setting penalty
Legislation Cited:	Crimes (Appeal and Review) Act 2001 ss 31, 49, 70, 72 Crimes (Sentencing Procedure) Act 1999 ss 3A, 10, 19, 21A Environmental Planning and Assessment Act 1979 ss 5, 76A, 125, 125A, 125B, 125C, 127 Fines Act 1996 ss 4, 7, 10 Palerang Local Environmental Plan 2014 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Cases Cited:	Advanced Arbor Service Pty Ltd v Strathfield Municipal Council [2006] NSWLEC 485 Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34 Burwood Council v Doueihi (2013) 200 LGERA 152; [2013] NSWLEC 196 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Council of the City of Sydney v Adams [2015] NSWLEC 206 Council of the Municipality of Kiama v Pacific Real Estate (Warilla) Pty Ltd [2009] NSWLEC 191 Environment Protection Authority v Barnes [2006] NSWCCA 246 Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419 Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242 Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 Kirzner v Manly Council [2009] NSWLEC 13 Ku-ring-gai Council v Steve Nolan Constructions Pty Ltd [2012] NSWLEC 258 Latoudis v Casey (1990) 170 CLR 534 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Moseley v Queanbeyan-Palerang Regional Council [2016] NSWLEC 165 Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89; [2002] NSWLEC 132 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v Paris [2001] NSWCCA 83 Secretary Department of Planning and Environment v Boggabri Coal Pty Limited [2014] NSWLEC 154 Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14
Category:	Sentence
Parties:	Benjamin Moseley (Appellant) Queanbeyan-Palerang Regional Council (Respondent)
Representation:	COUNSEL: C Bolger (Appellant) N Hammond (Respondent)   SOLICITORS: N/A (Appellant) Bradley Allen Love Lawyers (Respondent)
File Number(s):	16/227474
Decision under appeal	Court or tribunal: Queanbeyan Local Court Jurisdiction: Criminal Date of Decision: 21 June 2016 Before: Magistrate Antrum File Number(s): 2016/3540

Judgment

Sentencing appeal

1. I dismissed the Appellant’s appeal against his conviction in the Local Court in Moseley v Queanbeyan-Palerang Regional Council [2016] NSWLEC 165. Accordingly, the Appellant is guilty of the offence of carrying out development without consent contrary to ss 76A and 125(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) on land at Royalla. The Appellant also appeals against the penalty of $15,000 and the order to pay Queanbeyan-Palerang Regional Council’s professional costs imposed by the magistrate in the Local Court on 21 June 2016, which I am now considering. This appeal is enabled by s 31 of the Crimes (Appeal and Review) Act 2001 (Appeal and Review Act).

2. The Appellant was not present at the Local Court on the day of sentencing and did not otherwise put forward any material or submissions relevant to sentencing. The magistrate was satisfied that the Appellant was aware of the proceedings and determined that it was appropriate to proceed with the sentence hearing in his absence. The Council’s solicitor provided written submissions and authorities on sentencing to the magistrate. The Council informed the magistrate that the Appellant had no prior convictions. The magistrate stated that general deterrence was of principal concern in this matter and that no discount for a plea of guilty was available to the Appellant. I am sentencing the Appellant afresh based on evidence before me rather than determining if there was any error in approach to sentencing by the presiding magistrate.

Particulars of the offence

3. The period of the offence was between 30 December 2014 and 12 June 2015. The particulars of the offence relevant to this sentencing judgment following my first decision are B, C, D, E and G. Particular B related to the clearing and excavation of a proposed shed site, approximately 15 m wide and 50 m long. Particular C was the creation of four stockpiles of spoil and other materials with one of those stockpiles being approximately 5 m high and 10 m wide. Particular D concerned the construction of a creek crossing with pipes, soil, rocks and excavated fill. The crossing was approximately 10 m high, 4 m wide and 15 m in length. Particular E concerned the construction of a track from the creek crossing to an area approximately 500 m up the hillside. Particular G involved the carrying out of earthworks associated with the construction of a dam approximately 15 m wide and 20 m long.

4. Particular A was withdrawn by the Council during the hearing on conviction and Particular F was not proven in the conviction appeal.

Evidence in sentence hearing

5. The evidence tendered in the conviction hearing is identified in that judgment at [32] and was referred to in part in this sentence hearing.

6. A statement of the Council officer Mr Eichler dated 12 May 2016 is contained in the Court Book. Extracts follow:

…

7.   On Wednesday morning 28 April 2015 I attended the land…

8.   …

I said “Hi Ben [Appellant], I’m making inquiries into the land clearing and excavation going on at this property. What’s going on here?”

He said “Hi Roger, I’m getting ready to build my house and shed there on my property. I’ve excavated a shed site at the bottom where you are and a house site at the top of the hill, I’ve spoken to Haydon in your office. He told me all the work I am doing is permissible because it is zoned rural. I’ve also checked on the web and it says I’m ok to do what I’m doing”.

I said “Ok, I’m not too sure about this but what I would like to do if that’s ok with you is to take a look around and get some photos, take these back to the office and let you know if this is all ok or not. Is that ok with you?”

He said “Sure, no problem, help yourself”.

…

I said “Ok, what I’ll do is go around and get my photos; I shouldn’t be any more than 10-15 minutes then I’ll leave. But what I will ask is that you cease all work until I get back to you. By that I mean stop all excavation works until after I speak to Haydon and the other planners to confirm if this is exempt development. This might be a day or two. Is that ok?”

He said “That’s fine, I’ll let my Dad know.

…

17.   I arranged with Mr Moseley to re-inspect the premises with himself and Belinda McManus, a planner from Palerang Council, on 29 May 2015. When we arrived at the land we met a person I now know as Benjamin Moseley. We had a discussion with Mr Moseley who then showed us some plans of his proposed dwelling for these premises. He said “I am in the process of getting all my papers together to submit a DA for my house but it will take a few weeks”. We agreed to drive around the premises and inspect the premises with him.

…

21.   We drove to the house site and I observed that the excavations were greater than 600mm deep. Again I said, “Ben, this looks like it is deeper than 600mm, just like the shed site. Did you seek approval to excavate deeper than 600mm?”

22.   He said “No, but I’m sure under the SEPP I don’t need approval anyway”.

29.   We completed the inspection and drove back down to the bottom of the land, near the entrance I said, “Ben, please don’t do any more works on the land except to install the erosion and sediment controls which I pointed out to you. We will make further inquiries about the works you have done and be in touch. Do you understand?”

30.   Mr Moseley said “I really don’t agree because the works are exempt development, it’s zoned rural and according to what I have researched it’s all exempt”.

…

36.   As a result of the two inspections it was apparent to me that development upon the premises had continued between the two inspections including the construction of the “house dam” at the top of the development, the further development of the land just below the house site, and new tracks around the house site. In accordance with Palerang Council’s Enforcement Policy I drafted a Notice of Proposed Order under the EP&A Act and a Notice of Preventative Action under the POEO Act, and on 11 June 2015 I posted these documents, along with PIN 3081790920, to Mr Moseley. Copies of these documents are attached at annexure “F”.

Additional evidence in sentence hearing

First affidavit of Appellant

7. The Appellant sought leave to rely on his affidavit sworn 8 November 2016 which was granted. In his affidavit the Appellant stated that he is currently employed as a senior project officer in a department of the Commonwealth Government. His de facto partner is employed as a teacher. The couple have four children who live at their rented home and who attend a fee-paying school. His partner is the owner of the land in Royalla where the offence occurred which is mortgaged to a bank. In addition to school fees and mortgage repayments, the Appellant and his partner have expenses associated with their several vehicles and general household expenses. The Appellant is pursuing a postgraduate degree for which he pays university fees. Their collective expenses are high in relation to their income and the couple is currently under financial pressure.

8. The property at Royalla was purchased in March 2015. The property was chosen as it was zoned RU1 and provided an opportunity for them to operate a business selling produce grown on the land, such as herbs, preserves, sauces and baked goods. The Appellant and his partner also intend to run alpacas on the land in the future. The Appellant and his partner registered a company in April 2015 for the purpose of operating the business. The Appellant stated that the development application for a dwelling house to be constructed on the land was approved by the Council on 29 February 2016.

9. The Appellant attached to the affidavit a sediment control and erosion plan dated 17 July 2015. A bushfire assessment report dated 1 August 2015 was also annexed to the affidavit. The Appellant attested that over $20,000 had been spent on the cost of the reports and implementation of the plan.

10. The Appellant stated that he was late to the Local Court sentence hearing on 21 June 2016 as he had recorded the wrong date in his diary. He realised his mistake when he contacted his former solicitor to confirm the date. When he arrived before 10:30 am he was advised that the matter had been dealt with in his absence.

Second affidavit of Appellant

11. The Appellant sought leave to rely on his affidavit sworn 10 February 2017 which was granted. In his affidavit the Appellant said that his employment at a Commonwealth Government department had recently ended and that he had not found alternative employment. His family is under more financial strain and pressure than before as they are now reliant on the income of his de facto partner. The Appellant said that he had been diagnosed with mental health conditions and that he was currently attending monthly counselling sessions to treat these. Attached to the affidavit were a series of reports from the Appellant’s psychologist which supported this statement.

Purposes of sentencing

12. Section 3A of the Crimes (Sentencing Procedure) Act 1999 (CSP Act) identifies the purposes of sentencing. It states:

3A Purposes of sentencing

The purposes for which a court may impose a sentence on an offender are as follows:

(a)   to ensure that the offender is adequately punished for the offence,

(b)   to prevent crime by deterring the offender and other persons from committing similar offences,

(c)   to protect the community from the offender,

(d)   to promote the rehabilitation of the offender,

(e)   to make the offender accountable for his or her actions,

(f)   to denounce the conduct of the offender,

(g)   to recognise the harm done to the victim of the crime and the community.

13. Section 21A of the CSP Act identifies numerous matters which a court must take into account when sentencing including in relation to aggravating (s 21A(2)) and mitigating (s 21A(3)) factors.

Objective seriousness of the offence

14. Relevant factors to determine the objective gravity of an offence under the EPA Act were identified in Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34 at [163] and Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242 at [110], including the maximum penalty, objective harmfulness of the defendant's actions, reasons for the commission of the offence and state of mind of the offender. The foreseeability of the risk of harm is relevant, as are the practical measures that could have been taken to avoid harm and the defendant’s control over the causes of the harm, per Council of the Municipality of Kiama v Pacific Real Estate (Warilla) Pty Ltd [2009] NSWLEC 191 at [67].

The nature of the offence

15. An important consideration in this case is upholding the statutory scheme for orderly planning in NSW under the EPA Act, as identified in numerous cases including Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89; [2002] NSWLEC 132 at [35] and Burwood Council v Doueihi (2013) 200 LGERA 152; [2013] NSWLEC 196 at [10]. The objects of the EPA Act are outlined in s 5 and include:

5 Objects

The objects of this Act are:

(a)   to encourage:

(i)   the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment,

(ii)   the promotion and co-ordination of the orderly and economic use and development of land,

…

(vi)   the protection of the environment, including the protection and conservation of native animals and plants, including threatened species, populations and ecological communities, and their habitats, and

…

16. These objects are achieved partly through the system of planning approval in NSW, which requires that a person have development consent to carry out development (other than development that does not require consent) before carrying it out. This system ensures through public consultation and proper assessment of applications the efficient and sustainable development of NSW. This consideration informs the assessment of the seriousness of the offence based on the objective circumstances. As stated in Secretary Department of Planning and Environment v Boggabri Coal Pty Limited [2014] NSWLEC 154 at [19] offences which undermine the integrity of the regulatory scheme are objectively serious.

Maximum penalty

17. The maximum penalty for the offence committed is a relevant consideration reflecting the seriousness of the offence as nominated by the Parliament of NSW, per Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698; see also Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at 372. The maximum penalty at the date of the offence was $1,100,000. For completeness I note that the maximum penalty for this offence, as a tier two offence, for individuals has been reduced since the time of the offence to $500,000 as part of amendments to the EPA Act introducing a three tier offence regime in ss 125A, 125B and 125C which commenced on 31 July 2015. Section 19(2) of the CSP Act states that if the penalty for an offence is reduced, the reduced penalty applies to offences committed before the commencement of the provision reducing the penalty, but does not affect any penalty imposed before its commencement. For the reasons identified by Preston CJ in Council of the City of Sydney v Adams [2015] NSWLEC 206 at [22]-[30] this section does not apply to this offence under s 125(1).

18. When the Appellant was sentenced in the Local Court that court was subject to the jurisdictional limit imposed by s 127(3) of the EPA Act of $110,000.

19. In an appeal against severity of sentence the Court may increase or decrease the sentence imposed by the Local Court. There is an established practice that if the Court considers there is a possibility of increasing the sentence it should first warn the appellant as a matter of fairness. This warning affords the appellant an opportunity to consider whether or not to apply for leave to withdraw the appeal against severity of the sentence, Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 at 295; Gittany at [210]. I have not considered it necessary to provide such a warning to the Appellant.

Environmental harm

20. The Council submitted and I accept given the evidence before me in the conviction hearing that there was risk of environmental harm resulting from the excavation and fill undertaken in the creek area where the amount of fill placed was substantial (Particular D). The track work undertaken also raised concerns about erosion for the Council officers attending (Particular E).

21. The Appellant was required to obtain and implement a sediment and erosion control plan because of the Council officer’s concerns about erosion occurring following their site visits.

Control over causes

22. The Appellant accepts he had control over the causes of the offence.

Appellant’s state of mind and reasons for committing offence

23. The offence charged is a strict liability offence. It is not part of the elements of the offence that the Appellant intended to commit the offence. A defendant’s reasons for committing an offence are relevant in determining the appropriate penalty, see Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366. A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one not so committed, Gittany at [123].

24. As recorded in Mr Eichler’s statement (extracted above in par 6) during the first visit to the land on 28 April 2015 the Appellant said that he spoke to an officer at the Council Mr Murdoch and was told all the work is permissible because it is zoned rural. The Appellant is also recorded in the statement as saying that he checked the web and it says “I’m ok to do what I’m doing”. The precise terms of the conversation with Mr Murdoch are unknown in the evidence. Mr Eichler cautioned him on the first visit that it was possible he did need development consent for the excavation and fill work. Mr Murdoch did not give evidence in the Local Court hearing. The Appellant did not give evidence about the precise terms of the conversation in the Local Court hearing. No such evidence was adduced in the conviction hearing or in this sentencing hearing by either party.

25. During the second visit by Mr Eichler on 29 May 2015 the Appellant again stated that he believed the work was exempt as the land is zoned rural and did not need consent as a result of his research. Mr Eichler told him not to do any more work on the land except to install erosion and sediment controls. The Appellant did additional work after the first visit of Mr Eichler.

Parties’ submissions

26. The Council submits that the offence was committed intentionally for the whole period of the offence or alternatively after the first inspection by Council officers on 28 April 2015 when the Appellant was warned about the possibility the work did require development consent and asked to stop work. Mr Eichler identified that further work had been undertaken after his first visit when he visited the land again on 29 May 2015. The exempt and complying development provisions of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (SEPP) and Palerang Local Environmental Plan 2014 (LEP) are complicated. The conviction hearing took more than the day allocated due in large part to the complexity of understanding how the relevant statutory provisions applied to the development work constituting the particulars of the offence. It is improbable that a Council officer would give approval over the telephone for such expansive work.

27. The Appellant submits that he acted unintentionally, being mistaken as to the effect of the law namely the application of the exempt and complying development provisions under the SEPP and LEP. He also believed he had the go-ahead from a Council officer “Haydon” (Mr Murdoch) who he spoke to on the telephone before he commenced work. He understands the need to obtain development consent as demonstrated by his development application for a dwelling house on the land. When requested by the Council, the Appellant obtained a report and undertook the sedimentation work required of him.

No intentional act before first visit of Council officer

28. The application of the exempt and complying development provisions under the SEPP and LEP are not necessarily straightforward. I set out the detailed provisions of these instruments in the conviction appeal judgment at [12]-[15]. The lengthy judgment identifies at [41]-[90] the application of these provisions to the six particulars relevant to the offence.

29. Considering firstly whether the Council has established that the Appellant acted intentionally, meaning with awareness that he was breaching the EPA Act, before the first visit of a Council officer, the statement of Mr Eichler adduced at the Local Court hearing records the Appellant’s reference to the conversation with Mr Murdoch. The Appellant submits that the Council has the onus of proving that he did not get approval from Mr Murdoch over the telephone in order for the Court to make a finding of intentional conduct.

30. The High Court set out the principles concerning the exercise of fact finding in sentencing proceedings in Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14. A sentencing judge may not take into account facts adverse to an offender unless those facts have been established beyond reasonable doubt by the prosecution. Facts that are in favour of an offender need be proved on the balance of probabilities, see Weininger at [18] citing R v Olbrich (1999) 199 CLR 270; [1999] HCA 54. The High Court in Weininger stated that it can be difficult, if not impossible, for a sentencing judge to make findings one way or another about all matters relevant to the circumstances describing how an offender came to commit the offence, at [19]-[20].

31. In this case, although I accept the Council’s submission that it is highly unlikely that a Council officer would have suggested the works carried out by the Appellant the subject of the charge were exempt or complying development this does not satisfy the standard required of the Council to establish intentional conduct of the Appellant. I am not satisfied, as I am required to be according to Weininger at [18], that the Council has proved this fact beyond reasonable doubt in relation to the work undertaken before the first visit of Mr Eichler on 28 April 2015.

32. Indeed the statements of the Appellant recorded by Mr Eichler suggest that he did attempt to make inquiries about the lawfulness of the work through telephoning Mr Murdoch and searching online, suggesting he was not intentionally acting in breach of the EPA Act up to that point.

Intentional/imprudent act before second visit of Council officer

33. The statement of Mr Eichler at [8] in par 6 above identifies that during his first visit to the land he asked the Appellant to cease further work until he got back to him. He further stated that this meant stopping all excavation works until Mr Eichler had spoken to Mr Murdoch and the other planners to confirm if the work was exempt development. Mr Eichler said he would get back to the Appellant in a couple of days. Mr Eichler formed the view during his second visit on 29 May 2015 that further excavation work had taken place with the construction of the house dam (Particular G), further development of the land just below the house site and new tracks around the house site, see [36].

34. I do not accept the submissions of the Appellant that the Council has not established beyond reasonable doubt that work carried out after the first visit by the Council was intentional in the sense of knowing there was potential for further work undertaken by him to be in breach of the EPA Act. While no written stop work order was issued to the Appellant following the first visit on 28 April 2015 by Mr Eichler a clear verbal statement was made to the Appellant identifying the officer’s concern with the work and the Appellant was asked to stop work until the Council officer had made further inquiries. The most apt description of the Appellant’s actions is that they were imprudent. That the Appellant was not contacted by the Council for some four weeks after the first visit to arrange a further inspection does not excuse the Appellant’s actions.

35. That during the second visit the Appellant continued to state (erroneously) that he believed the work did not require consent as the land was zoned rural suggests he was resistant to the views of the officer. After the second inspection an email was sent to the Appellant stating that he stop work and he complied with this.

Appellant has not discharged onus of proof on balance of probabilities that Council approved actions

36. The Appellant must establish matters favourable to him on the balance of probabilities. I accept that the Appellant telephoned Mr Murdoch and spoke to him about work intended to be undertaken on the land. I also accept that the Appellant undertook online research about exempt and complying development. I do not know precisely what the Appellant said to Mr Murdoch and vice versa nor what precise research he undertook.

37. Mr Eichler’s record of the first visit to the land including the Appellant’s statement concerning the conversation with Mr Murdoch does not support the Appellant counsel’s submission that the Appellant was told he could undertake the work that was the subject of the charge in the rural zone. In the absence of the precise terms of the conversation, whether Mr Murdoch understood the precise works which the Appellant intended to undertake without development consent are unknown.

38. The excavation and fill works the subject of the charge are specified above in par 3. I have already stated above in par 28 that the exempt and complying provisions of the SEPP and LEP are complicated to apply. As the Council submitted, it is improbable that a Council officer would have identified over the telephone that all aspects of the work undertaken by the Appellant were exempt or complying development. For example, the work undertaken in relation to the creek crossing was substantial involving several metres of fill being placed in the creek bed. That work was conducted well within the 40 m buffer within which excavation and fill work should not be undertaken without approval (Particular D).

39. I am not satisfied that the Appellant can use his conversation with Mr Murdoch to the extent this is known on the evidence to exculpate his actions. The detail of what was said about the scope of works intended to be undertaken by the Appellant during that conversation is unknown. The Appellant could have included the details of the conversation in an affidavit but has not. As the precise content of this telephone conversation is unknown it does not support the Applicant’s submission that he believed he could do all the work he undertook as exempt and complying development. Adopting Weininger at [19]-[20] I am not able to draw any conclusion about the contents of the conversation beyond accepting that a conversation occurred with Mr Murdoch and the Appellant about work on the land. Accordingly, the Appellant has not established that a Council officer suggested that the work he undertook the subject of the charge was acceptable as exempt and complying development.

No aggravating factors

40. No aggravating factors specified under s 21A(2) are relevant to the offence.

Conclusion on objective seriousness

41. The Council’s decision to impose a Penalty Infringement Notice (PIN) on the Appellant was relied on by him as suggesting the matter was of minor objective seriousness. The relatively substantial work in the creek bed and other track work giving rise to erosion concerns when Council officers visited the land suggest the objective seriousness of the offence is not trivial. I have found the Appellant acted imprudently following the first visit of a Council officer when he was requested to stop excavation work. I consider the offence to be at the low to mid range of low objective seriousness.

Subjective factors

42. Section 21A(3) of the CSP Act identifies some of the relevant mitigating factors as follows:

21A Aggravating, mitigating and other factors in sentencing

…

(3)   Mitigating factors

The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

(a)   the injury, emotional harm, loss or damage caused by the offence was not substantial,

…

(e)   the offender does not have any record (or any significant record) of previous convictions,

(f)   the offender was a person of good character,

(g)   the offender is unlikely to re-offend,

(h)   the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise,

(i)   the remorse shown by the offender for the offence, but only if:

(i)   the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii)   the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),

…

(k)   a plea of guilty by the offender (as provided by section 22),

…

(m)   assistance by the offender to law enforcement authorities (as provided by section 23).

Prior record and good character of Appellant

43. I accept the Appellant is of good character and has no prior record.

Likelihood of re-offending

44. This appeal stems from the Appellant’s decision to contest a PIN in the Local Court issued in relation to the excavation work on his partner’s land on a project for their mutual benefit. The Appellant’s actions were misguided, to give his behaviour the least critical description in the circumstances. I consider this process is likely to be a salutary lesson in the need to ensure development work of this type is lawful. I consider it is unlikely the Appellant will re-offend.

Remorse and contrition

45. The Appellant chose not to plead guilty by contesting the PIN in the Local Court. There is no express statement of remorse and contrition in his affidavits. To the extent that action taken by the Appellant can be considered I accept that he has taken the necessary steps to implement sediment and erosion controls on the land. That he complied with the EPA Act in obtaining development consent for the proposed house is a neutral factor given that is complying with the law in any event.

Assistance to authorities

46. I accept that the Appellant was open with the Council’s investigating officers and assisted them with their inquiries.

Deterrence

General

47. A sentence should operate as a powerful factor in preventing the commission of similar offences by those who might otherwise be tempted by the prospect that only light punishment will be imposed, per Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419 at [228].

48. General deterrence is relevant in these circumstances. It is of upmost importance that the Court upholds the integrity of the planning system in NSW. The exempt and complying development provisions are an important part of that planning framework.

Specific deterrence

49. Specific deterrence is not relevant to the Appellant in the circumstances of this offence as I discuss later in the context of likelihood of reoffending.

Application of s 10(1) Crimes (Sentencing Procedure) Act refused

50. The Appellant submits that the Court should make an order under s 10(1)(b) of the CSP Act. Section 10 states:

10   Dismissal of charges and conditional discharge of offender

(1)   Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders:

(a)   an order directing that the relevant charge be dismissed,

(b)   an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years,

(c)   an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program.

(2)   An order referred to in subsection (1) (b) may be made if the court is satisfied:

(a)   that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or

(b)   that it is expedient to release the person on a good behaviour bond.

…

(3)   In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors:

(a)   the person’s character, antecedents, age, health and mental condition,

(b)   the trivial nature of the offence,

(c)   the extenuating circumstances in which the offence was committed,

(d)   any other matter that the court thinks proper to consider.

51. Reliance was placed on the Appellant’s good character, no prior offences, the application and approval of the development consent for the house and compliance with the sediment and control plan, his mental difficulties as identified in his second affidavit and his limited financial means. Extenuating circumstances are that a Council officer stated to him that the Appellant could undertake the work that was the subject of the charge as the land was zoned rural.

52. The Council submits that it would not be appropriate to make a s 10 order in this matter. It notes that s 10(1)(a) is rarely applied for strict liability offences given the deterrent purpose of punishment for such offences and the need to give effect to the statutory system of planning controls, Ku-ring-gai Council v Steve Nolan Constructions Pty Ltd [2012] NSWLEC 258 at [71] (the order sought by the Appellant is under s 10(1)(b)). The offence was not trivial and had the potential to cause actual harm to the environment including waterways. The Appellant has shown no contrition or remorse and there are no extenuating circumstances that would mitigate in favour of a s 10 order. The Appellant’s personal circumstances and mental difficulties are outweighed by the fact that the offence was carried out intentionally, within the full control of the Appellant and that there was foreseeable risk of harm to the environment.

53. The factors in s 10(3) are disjunctive and non-exhaustive per R v Paris [2001] NSWCCA 83 at [42]. The Court can exercise the power granted by s 10 where there has been an appeal against conviction, Advanced Arbor Service Pty Ltd v Strathfield Municipal Council [2006] NSWLEC 485 at [18], [20]. An appeal against conviction was filed in the present matter therefore I am able to exercise this power under s 10.

54. I largely accept the Council’s submissions as set out in par 52 above on why I should not exercise my discretion to make a s 10 order noting that I have found that the Appellant acted imprudently following the first visit of a Council officer to the land. There are no extenuating circumstances in this case based on my finding above in par 39 that the Appellant has not proved on the balance of probabilities that in the telephone conversation he had with Mr Murdoch all of the work that he intended to undertake (the subject of the charge) was identified to that officer. The offence is not trivial, the circumstances were under the full control of the Appellant and there was an obvious risk of harm to the environment. I will take into account the lack of capacity to pay a fine in determining penalty, as I identify below. That is not a matter so relevant to the application of s 10(1) in my view. That the Appellant complied with the EPA Act in obtaining development consent for the proposed house is simply complying with the law in NSW. Similar observations can be made in relation to obtaining the sediment and erosion control plan. I decline to make an order under s 10(1)(b).

Capacity to pay a fine

55. The Appellant has very recently lost his job as attested to in his second affidavit. He and his partner have substantial debts and outgoings for various living expenses such as school fees for four children as identified in his first affidavit which they are now managing on one income. I accept that the Appellant has a very limited ability to pay a fine at present.

Finding on penalty

56. When sentencing the Court must apply the instinctive synthesis approach by identifying all the relevant factors, discussing their importance and making a “value judgment as to what is the appropriate sentence given all the factors of the case”, Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26] unanimously following Markarian at [51] per McHugh J. The sentence must reflect all the relevant objective circumstances of the offence and subjective circumstances of the defendant, see Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 at 490 and Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 472-473, 490-491. The sentence should not exceed what is “justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances”, per Veen (No 2) at 472, 485-486, 490-491, 496 and Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 at 354 per Mason CJ, Deane, Dawson, Toohey and McHugh JJ.

57. The Appellant has been ordered to pay substantial costs in the Local Court proceedings. That is also a relevant factor to consider in assessing penalty per Environment Protection Authority v Barnes [2006] NSWCCA 246. In addition I am particularly mindful of the Appellant’s current limited financial capacity which is much reduced since the Local Court hearing. I will impose a penalty of $4,000. The Appellant’s appeal on sentence is upheld as I have varied the Local Court sentence. Under s 7(1) of the Fines Act 1996 fines are payable within 28 days. An application for time to pay the penalty under s 10 of the Fines Act can be made to the Registrar of this Court.

Costs in the Local Court

58. The Appellant was ordered to pay the Council’s professional costs of $12,000 which the Appellant requests be reduced. The magistrate reduced the amount from the tendered solicitor’s record of billing of approximately $16,000. No basis for further varying the order made by the magistrate has been demonstrated. Such costs are also defined as a fine in s 4 of the Fines Act. Consequently application for time to pay the Local Court costs can be made to the Registrar of this Court under s 10 of the Fines Act.

Costs of the conviction and sentencing appeals

59. I have yet to determine costs in the conviction appeal and must determine costs in relation to this sentencing appeal. Pursuant to s 49(4) of the Appeal and Review Act the Court may make such order as to costs to be paid by either party as it thinks just. Section 70 concerning limitations on the award of costs against public prosecutors is not relevant as I did not uphold the conviction appeal. Under s 72(b) the Court must order costs be paid within a stated time. Costs are compensatory not punitive per Latoudis v Casey (1990) 170 CLR 534 at 543. As the Appellant has been unsuccessful in the appeal against conviction it is appropriate to make an order that the Appellant pay the Council’s costs. That order will be suspended for 12 months to allow the Appellant time to pay those costs.

59. The Appellant was successful to some extent in his sentencing appeal due to the additional material placed before this Court not before the Local Court. As discussed in Kirzner v Manly Council [2009] NSWLEC 13 at [42]-[46] it is appropriate that each party pay their own costs of the sentencing appeal in these circumstances.

60. As an administrative matter, the penalty and both sets of costs should be paid to the Land and Environment Court Registry.

Orders

62. I did not make final orders at the completion of the conviction appeal judgment Moseley v Queanbeyan-Palerang Regional Council [2016] NSWLEC 165. The Court orders:

1. The conviction appeal in relation to Local Court file no 16/3540 is dismissed.

2. The sentencing appeal in relation to Local Court file no 16/3540 is upheld.

3. The Appellant is fined $4,000 and required to pay Local Court costs of $12,000.

4. The Appellant is to pay the Respondent’s costs of the conviction appeal.

5. Order 4 is postponed for 12 months.

6. The exhibits be returned.

**********

Decision last updated: 15 May 2017