Port Macquarie-Hastings Council v Notley (No 2)
[2013] NSWLEC 220
•20/12/2013
| Land and Environment Court New South Wales | |
| Medium Neutral Citation | Port Macquarie-Hastings Council v Notley (No 2) [2013] NSWLEC 220 |
| Hearing Dates | 19 December 2013 |
| Decision Date | 20/12/2013 |
| Jurisdiction | Class 5 |
| Before | Pepper J |
| Decision | See orders at [109]. |
| Catchwords | SENTENCE: offence of carrying out development without consent contrary to s 76A(1)(a) of the Environmental Planning and Assessment Act 1979 - no actual environmental harm - low objective seriousness - mitigating factors - late guilty plea and subsequent conduct diminishing utility of plea - capacity to pay. |
| Legislation Cited | Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A Criminal Procedure Act 1986, ss 257B, 257G Environmental Planning and Assessment Act 1979, ss 5, 76A(1), 79BA, 125(1) Fines Act 1996, ss 6, 7, 10 Port Macquarie-Hastings Local Environmental Plan 2011 |
| Cases Cited | Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 Burwood Council v Doueihi [2013] NSWLEC 196 Byron Shire Council v Fletcher [2005] NSWLEC 706; (2005) 143 LGERA 155 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 Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 Elias v The Queen [2013 HCA 31; (2013) 298 ALR 637 Environment Protection Authority v Barnes [2006] NSWCCA 246 Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65 Environment Protection Authority v Queanbeyan City Council (No 3) [2012] NSWLEC 220 Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2006) 148 LGERA 299 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Gore v The Queen [2010] NSWCCA 330 Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 Hurstville City Council v Naumcevski [2011] NSWLEC 226 Kiama v Furlong [2009] NSWLEC 139 Ku-ring-gai Council v Abroon (No 3) [2012] NSWLEC 12 Lane Cove Council v Wu [2011] NSWLEC 43 Magaming v The Queen [2013] HCA 40 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 Plath v Hunter Valley Property Management Pty Ltd [2010] NSWLEC 264 Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 Port Macquarie-Hastings Council v Notley [2013] NSWLEC 193 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v Wickham [2004] NSWCCA 193 Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 |
| Category | Sentence |
| Parties | Port Macquarie-Hastings Council (Prosecutor) Mr Benjamin Lloyd Notley (Defendant) |
| Representation | Lindsay Taylor Lawyers (Prosecutor) Pikes & Verekers Lawyers (Defendant) Mr M Bonanno (Solicitor) (Prosecutor) Mr R Tassall (Solicitor) (Defendant) |
| File Number(s) | 50152 of 2013 |
Ex tempore Judgment
Mr Notley Pleads Guilty to an Offence of Carrying Out Development Without Consent
The defendant, Mr Benjamin Notley, was charged with having carried out development absent the necessary development consent, contrary to s 76A(1)(a) of the Environmental Planning and Assessment Act 1979 ("the EPAA") by the erection of a dwelling house, or part thereof, on land owned by him. He was charged with an offence pursuant to s 125(1) of the EPAA by summons filed on 4 March 2013 by the prosecutor, Port Macquarie-Hastings Council ("the council").
The dwelling consisted of a three bedroom house on land purchased by himself and his then wife, Ms Tracy Notley.
Having regard to the objective seriousness of the offence and the subjective circumstances of Mr Notley, a fine of $12,000 is imposed and Mr Notley is ordered to pay the council's costs of the proceedings.
The Circumstances Giving Rise to the Offence
As stated in the agreed statement of facts, the land the subject of the offence is Lot 120 in DP 754444 located at Queens Lake in Bonny Hills, New South Wales ("the property"). The property falls within the council's local government area and is subject to the Port Macquarie-Hastings Local Environmental Plan 2011 ("the LEP"), which came into effect on 24 January 2011.
The property is located wholly within the RU1 Primary Production Zone under the LEP. Clause 2.3 of the LEP deals with the types of development permitted in each zone by reference to land use tables. Pursuant to cl 2.3(1)(c), the construction of a "dwelling house" is development that may be carried out only with development consent in the relevant RU1 Zone. The property also falls within "bush fire prone land", enlivening certain additional requirements for consent pursuant to s 79BA of the EPAA.
Mr Notley and Ms Notley had lived in New South Wales prior to 2003 and then in Queensland between 2003 and 2008, moving several times within Queensland after Mr Notley was declared bankrupt on 9 June 2006. Mr and Ms Notley moved back to New South Wales in 2008, whereupon he suffered serious health issues.
Mr Notley became a licensed builder in 1992 and has held a number of building and contractor licences at various times.
He is currently the director and shareholder of a small company called Blend Constructions Pty Ltd ("Blend").
Mr Notley and Ms Notley purchased the property in 2010. A deposit of $80,000 was paid on 29 March 2010 by Ms Notley from her own monies.
Formal settlement on the property took place on 15 December 2010. The balance of the purchase monies came from a finance arrangement with the vendors, Mr David Latham and Ms Robin Clenton, the former of which Mr Notley had a pre-existing business relationship with.
The certificate of title shows that Mr and Ms Notley own the property as tenants in common in equal shares. It also records a mortgage registered to Mr Latham and Ms Clenton.
Evidence of the Council
On behalf of the council the following affidavits were filed:
(a) two affidavits of Ms Tracy Notley sworn 14 February and 31 October 2013;
(b) two affidavits of Mr Craig Henderson, a Development Compliance Officer with the council. The first affirmed on 31 January 2013, provided evidence of the council's investigation into the unlawful development; and the second, affirmed 12 December 2013, was relevant to the question of Mr Notley's remorse; and
(c) an affidavit of Mr Thor Aaso, a Natural Resources Officer with the council, affirmed 12 December 2013.
Ms Notley deposed that shortly after she had paid the deposit for the purchase of the property, she camped at the property on several occasions and made several observations about development works carried out on the property:
(a) on April 2010, she observed a small clearing of between a quarter acre to one acre in area and large logs had been placed near the outside of the clearing. Mr Notley told her that the area had been used as a "logging dump";
(b) on July 2010, she observed that a small storage shed had been erected on the eastern boundary of the site near the lake. She deposed that she had asked Mr Notley about the development of the property and he had informed her that he had built the storage shed on during June and July 2010. He stated that he had spoken to the council and a small storage shed below a "certain size" was permitted without approval; and
(c) on the third occasion in September 2010, she observed two shipping containers on the site.
Mr and Ms Notley separated on 12 March 2011, after what can fairly be described as a tumultuous relationship ending in acrimony. Ms Notley deposed at the time, that she advised Mr Notley that she required the property to be sold and the proceeds of sale returned to her.
Following their separation, Ms Notley observed the following further work undertaken on the property:
(a) between 15 and 20 March 2011, she noted further clearing on the property;
(b) between 9 and 12 May 2011, she attended the property and noticed the framework of a "cabin", as well as further tree clearing that had taken place; and
(c) on 12 June 2011, she attended the property and observed that a dwelling had been erected on the property.
During the latter visit Ms Notley saw a three bedroom house with a deck. It appeared to her that Mr Notley and his two sons now were living there. This was based on her observation of their personal effects in the house, and three beds, a television, a new washing machine and dryer, the presence of clean and dirty dishes on a makeshift bench, a variety of food, including breakfast cereals, and curtains across the windows. Further, she saw solar panels had been installed on the roof and two gas bottles were located outside the dwelling.
At no time did Mr Notley consult her about the works on the property nor did she give permission for them to be carried out.
In her second affidavit, Ms Notley reiterated that she had neither purchased building materials nor provided money towards the works on the property.
In his written evidence, Mr Henderson deposed that he and a council ranger, Mr Tony Newell, had initially attended the property on 23 June 2011 but were unable to obtain access. After a telephone conversation with Mr Notley they obtained access later that day, at which point Mr Henderson informed Mr Notley that the council was investigating an allegation that Mr Notley had built a house on the property without approval.
During the inspection Mr Henderson observed a three bedroom house on the site, three beds, a lounge, a television, computers and a kitchen area as well as personal effects. He also observed water tanks, a septic system, cleared trees, building materials, two shipping containers, an excavator, rainwater tanks, an electricity generator and an inverter on the property. Mr Henderson took photographs of the development and these were attached to the agreed statement of facts. The photographs demonstrate that the dwelling was being lived in.
On the same day, Mr Henderson asked Mr Notley if he had obtained consent to construct the dwelling, to which Mr Notley replied "I know I need approval to build a house but I want to make a safe place for myself and the boys to live".
On 2 August 2011 Mr Notley attended the council's offices and participated voluntarily in a recorded interview with Mr Henderson and a council ranger, Mr Chris Townsend. Mr Notley agreed that he had "knocked up the hut" for the boys and that it had been constructed in the last few months. When asked what his occupation was, Mr Notley replied that he did building and design work and worked "basically across the board".
Mr Henderson confirmed that no consent had been sought or obtained by Mr Notley for any development on the property. He confirmed that an ecological impact statement would have been required before consent would be granted for the construction of a dwelling at the property.
On 7 October 2011 Mr Henderson phoned Mr Notley and had a conversation in which Mr Notley said that he had vacated the property about a month ago and that there was "nothing there but a table and a couple of chairs" and that he was "using it for storage". Mr Notley said that he planned to have the property signed over to him by November and that he intended to lodge a development approval by Christmas 2011. Mr Henderson asked for this information in writing. However, by 10 November 2011 he had not received anything and in a further phone conversation with Mr Notley, Mr Notley appeared to deny that the council had any jurisdiction over his property but he agreed that he had not done anything to remove the building.
On 16 November 2011 Mr Henderson had a telephone conversation during which Mr Notley again agreed that he had not done anything about removing the building, he again challenged the council's jurisdiction, and moreover, he asserted that he would charge the council with trespass if they entered upon the property.
Further correspondence was exchanged between the parties and on 6 December 2011 Mr Henderson issued another Notice of Intention to Enter Premises. The entry date was 13 December 2011. Mr Henderson telephoned Mr Notley on 12 December 2011, and a series of emails followed in which Mr Notley denied that the council had any authority to enter upon his land.
Nevertheless, on 13 December 2011 Mr Henderson and a council compliance officer, Mr Andrew Rock, attended the property. Mr Notley prevented them from entering and called the police. As the police were not able to attend that day, Mr Henderson did not enter the property. A request for Mr Notley to consent to a short taped interview with respect to the state of the property was also denied by him.
Aerial photographs of the property taken in March 2012 by Mr Aaso were attached to the agreed statement of facts and showed structures, including a dwelling house, still clearly present on the property as at that date.
Evidence of Mr Notley
Mr Notley relied upon an affidavit sworn by him on 9 December 2013, which was consistent with the agreed facts, but which primarily deposed to the circumstances leading up to the commission of the offence. In summary, in his affidavit he deposed to the considerable financial, health and relationship difficulties he had experienced in the years leading up to the purchase of the property and the construction of the dwelling.
He stated that as a result of these difficulties he had been "very depressed and anxious" at the time of the commission of the offence and he had sought assistance at that time from a medical practitioner for his "mental health". He deposed that a primary reason for these difficulties was the breakdown of his relationship with Ms Notley.
He explained that he had decided that as a result of his problems he wanted a place for himself and two of his four children from a first marriage who still lived with him, to reside in. The property appealed to him because it was isolated and it afforded him a "sense of security". He therefore decided to build a dwelling on the property and to inhabit it with his two sons. He deposed that he now realised that "at that time [he] was not thinking logically or correctly" when he decided to erect the dwelling and that he did not properly consider whether he should obtain a consent from the council to do so.
Mr Notley deposed that he had seen a general practitioner and raised his mental health issues with him sometime in 2011, that is to say, around the time of the commission of the offence. However, he could not remember the exact timing of when he had first sought treatment for his depression and anxiety. His lack of memory, he explained, was a symptom of his mental illness.
In July 2013 Mr Notley consulted a psychologist about his mental health issues.
Mr Notley acknowledged that he had been mistaken and misguided in initially thinking that he did not need development consent and later in thinking that the council had no power to regulate development on his property. He also realised that he had been "wrong" not to allow the council's investigators onto his property after their initial visit in mid 2011.
He stated that he now "accept[ed] that development consent was required before [he] could erect a dwelling on the Bonny Hills property". He also "accept[ed] that in erecting the dwelling without development consent [he] did the wrong thing".
He deposed that he had written to the specific council officers concerned in order to apologise. He attached a copy of a letter to Mr Henderson and Mr Aaso dated 6 November 2013 in which he "apologised unreservedly" for his misguided views and his behaviour towards them. He expressed his "embarrassment and contrition" and that he was "mortified". The letter, however, was never sent.
Mr Notley stated that he continued to suffer stress and anxiety but was nevertheless "feeling much better and more in control" than he had been in 2010 and 2011.
He deposed that he anticipated that he will receive nothing from the proceeds of sale of the property given the vendor finance arrangements, the costs of the sale itself and the repayment of deposit monies to Ms Notley.
Mr Notley further stated in his affidavit that, other than personal effects and clothing, his only other asset is a Mazda BT50 truck worth about $25,000, but which was subject to finance to BMW Finance for about $30,000.
Mr Notley stated that he currently has cash in the bank of about $2,100.
With leave of the Court, Mr Notley gave oral evidence as to his current financial impecuniosity. Again, he was not able to remember the timing of some matters about which he gave evidence due to the nature of his illness.
In his oral evidence, he explained that only a few thousand dollars had been paid off the original mortgage. He agreed that the vendors, Mr Latham and Ms Clenton, had been remarkably tolerant in not foreclosing on the mortgage or demanding repayment of the loan.
He further explained that there are two accounts associated with his business, Blend. He engages in the occasional building work through Blend for which he receives payment. For example, he recently completed some design work and constructed a deck, for which he received payments in instalments totalling approximately $14,000. It appears that he draws personal funds from both Blend accounts, however, one of these accounts is currently in debit in the amount of approximately $1,800.
Mr Notley receives social security in the form of a family benefit payment of approximately $400 per fortnight. He estimates his average weekly income is about $500 per week.
Mr Notley has not completed tax returns for the past two financial years and has not prepared business accounts for the current financial year.
Despite his parlous financial state, however, he has received loans from his family to enable him to travel overseas to undertake charitable work, in respect of which he has repaid $7,000 to his parents.
Although the objective documentary evidence as to his financial affairs was unsatisfactory insofar as it lacked completeness and detail, and notwithstanding his recent overseas travel, I nevertheless find that Mr Notley is a person of insubstantial financial means.
Sentencing Principles
A basic principle of sentencing law is that the sentence imposed for an offence must 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 instinctive synthesis method is the correct method of sentencing an offender. The Court identifies all the factors relevant to the sentence and weighs their significance to arrive at an appropriate penalty (Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 at [26] and Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [35]-[39], [50]-[84] and [136]-[139]).
Section 3A of the Crimes (Sentencing Procedure) Act 1999 ("the CSPA") sets out the purposes of sentencing an offender. Relevant purposes in this case are those contained in s 3A(a), (b), (e) and (f).
In addition, s 21A of the CSPA identifies the matters that the Court must take into account when determining the appropriate sentence, including factors in aggravation under s 21A(2) and factors in mitigation under s 21A(3).
Relevant subjective circumstances or mitigating factors in the present case are those contained in s 21A(3)(e), (f), (g), (h), (i), and (k) of the CSPA. These are discussed further below in the context of the offence.
Although Mr Notley's plea of guilty entails acceptance of the proof beyond reasonable doubt of the elements of the offence, the council nevertheless still carries the onus of proving beyond reasonable doubt any aggravating factors for the purpose of sentencing (Gore v The Queen [2010] NSWCCA 330 at [27] and [105] and R v Wickham [2004] NSWCCA 193 at [26]).
For mitigating factors the onus of proof lies upon Mr Notley on the balance of probabilities (Wickham at [26] and R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27]).
In determining an appropriate sentence, the Court considers the objective and subjective circumstances of the offence in the context of the relevant legislative framework (Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 and Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65 at [42]). In this regard the Court has had regard to the objects of the EPAA as set out in s 5 of that Act.
The legislative scheme enshrined in the EPAA requires that the integrity of the system of planning is not subverted, irrespective of any actual environmental harm occasioned by a given offence (Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 at [46] and Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [104]-[105].
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 offence. The circumstances to which the Court may have regard include:
(a) the nature of the offence;
(b) the maximum penalty for the offence;
(c) the harm, if any, caused to the environment by the commission of the offence;
(d) Mr Notley's state of mind in committing the offence;
(e) Mr Notley's reasons, if any, for committing the offence;
(f) the foreseeability of the risk of harm to the environment by the commission of the offence;
(g) the practical measures available to avoid harm to the environment; and
(h) Mr Notley's control over the causes of harm to the environment: (Bentley at [163]; Gittany at [110] and Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [48]).
Nature of the Offence
The offence of undertaking development without consent involved Mr Notley taking action that undermines the integrity of the system of planning and development controls enacted in NSW: "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" (Scahill at [46]. See similar statements in Gittany at [104]-[105]; Byron Shire Council v Fletcher [2005] NSWLEC 706; (2005) 143 LGERA 155 at [60]-[61]; Lane Cove Council v Wu [2011] NSWLEC 43 at [17]; Cessnock City Council v Bimbadgen Estate Pty Ltd (No 2) [2011] NSWLEC 140 at [62] and Hurstville City Council v Naumcevski [2011] NSWLEC 226 at [49]).
Maximum Penalty
The maximum penalty for an offence reflects the seriousness with which the Parliament views the offence (Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 and Plath at [67]).
The maximum penalty for this offence is $1,100,000 (s 126 of the EPAA). It provides a point of comparison or yardstick when determining the appropriate penalty, but there is a spectrum of offending behaviour covered by this provision (Markarian at [31]).
As Mr Notley submitted, the maximum penalty is reserved for the worst case of offending. Mr Notley submitted that this offence falls at the lower end of the scale. The council submitted that it fell in the mid range.
Environmental Harm
The environmental harm caused by the commission of an offence is a central consideration in determining the objective gravity of the offence. The concept of harm in the context of environmental offences is broad (Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2006) 148 LGERA 299 at [145]-[147]).
In the present case, the council conceded that there was no evidence of any actual harm occasioned to the environment by the commission of the offence, but submitted that at the time the dwelling house was built on the property, the council was not given the opportunity to assess the development, in particular, its impact on the environment or its suitability given the surrounding area, especially given its location in a bush fire prone area. The council correctly, in my view, contended that the integrity of the planning system was therefore harmed by the commission of the offence, in accordance with the line of authorities that regard this as an element of environmental harm (Wu at [45]; Ku-ring-gai Council v Abroon (No 3) [2012] NSWLEC 12 at [90]; Bimbadgen at [62] and North Sydney Council v Perini (No 2) [2013] NSWLEC 91 at [137]).
Nevertheless I accept that the environmental harm caused by the commission of this offence was low. In this regard, I note that the unlawful structure has since been demolished.
Mr Notley's State of Mind
The offence is one of strict liability, which means that mens rea is not an element of the offence. However, the state of mind of an offender at the time of committing an offence is a relevant consideration when imposing a sentence.
A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one committed accidentally (Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [42]-[43] and Gittany at [123]).
Mr Notley accepts that at the time he committed the offence he knew that development consent was required, and that therefore, he accepted that the offence was committed intentionally. The evidence bears this out.
However, Mr Notley submitted that the evidence of his personal, health, relationship and financial difficulties leading up to and at the time of the offence, including his anxiety and depression at the time of the commission of the offence, should be taken into account with respect to the consideration of his state of mind in committing the offence. He further submitted that because of his anxiety and depression he was not thinking or acting rationally in his decision-making and it could not be said that he intended to defy the authorities or planning laws. This is discussed further below.
Reasons for Offending
The objective seriousness of an offence may also be measured by reference to the reasons for its commission (Axer at 366; Gittany at [140]-[141]; Bentley at [237], [246]-[247] and Rae at [47]). For example, an offence committed for financial gain increases its objective seriousness (CSPA s 21A(2)(o)).
In the present case, there is no evidence that the offence was committed for any reason that would increase the objective seriousness.
As stated above, Mr Notley submitted, and I accept, that he did not intend "to subvert or thumb his nose at the planning laws". Rather, I find that his reason for committing the offence was that he was anxious and in a depressed state and felt he needed a safe and secure place to live for himself and his two sons.
Foreseeability of the Risk of Harm
The extent to which Mr Notley could have reasonably foreseen the risk of harm to the environment caused by the commission of the offence is a relevant objective circumstance in determining an appropriate sentence (Camilleri's Stock Feeds at 700 and Plath at [48]).
The council, while conceding no actual environmental damage had occurred, submitted that it was foreseeable that the integrity of the planning system would be harmed if he constructed a dwelling absent the necessary consent. I agree.
Practical Measures Available to Avoid or Mitigate Harm
The council submitted that by not complying with the council's directions and by not undertaking development on the property prior to lodging a development application, any potential for harm could have readily been avoided. This is undeniably correct, as Mr Notley accepted during the course of the hearing.
Control Over the Causes of the Harm
Mr Notley had complete control over the causes of any potential harm to the environment insofar as he undertook the construction of the dwelling.
Conclusion on Objective Gravity
Having regard to all of the factors discussed above, I find that, contrary to the submissions of the council, the offence is one of low objective gravity.
Subjective Circumstances
A proportionate sentence requires the Court to take into account any mitigating factors that are personal to Mr Notley (Rae at [55]; Gittany at [144] and s 21A(3) of the CSPA).
Relevant subjective circumstances include:
(a) whether Mr Notley has a prior criminal record (s 21A(3)(e) of the CSPA);
(b) whether Mr Notley is of good character (s 21A(3)(f) of the CSPA);
(c) whether Mr Notley is unlikely to re-offend (s 21A(3)(g) of the CSPA);
(d) whether Mr Notley has demonstrated remorse for the commission of the offence (s 21A(3)(i) of the CSPA);
(e) whether, and when, Mr Notley entered a guilty plea (ss 21A(3)(k) and 22 of the CSPA);
(f) whether Mr Notley provided assistance to the regulatory authorities in the investigation and prosecution of the offence (ss 21A(3)(m) and 23 of the CSPA);
(g) whether Mr Notley is likely to pay the prosecutor's costs of the proceedings; and
(h) Mr Notley's financial capacity to pay any monetary penalty imposed (s 6 of the Fines Act 1996).
Mr Notley's Lack of Prior Criminality and His Good Character
Mr Notley has no antecedents and, as a written character reference from a former associate and current friend, Mr Harold Isberg, reinforced, he is, other than the commission of this offence, of good character.
Demonstration of Remorse
Mr Notley expressed remorse for the offence in his affidavit sworn 9 December 2013. Further, as referred to above, he attached a letter to his affidavit he had planned to, but did not, send to officers of the council expressing his regret and remorse for his commission of the offence and for his behaviour during the council's attempts to investigate the offence.
Two affidavits were filed by the council in response to Mr Notley's evidence. These were the affidavits of Mr Aaso and Mr Henderson, both affirmed 12 December 2013. Both deposed to the fact that neither council officer had received a copy of Mr Notley's letter and that no such letter had been received by the council.
In oral evidence, Mr Notley explained that he had attached the letter to his affidavit and that he believed that he had previously handed a copy to the council's solicitor. He acknowledged that the council had not received the letter and that he should have sent the letter by mail.
Although belated and somewhat limited, I accept Mr Notley's statements of contrition as genuine expressions of his remorse for the commission of the offence.
Likelihood of Re-offending
Mr Notley's acceptance of responsibility, his expression of contrition, his improved mental health subsequent to committing the offence, and his recognition of wrongdoing, all point towards almost no likelihood that he will re-offend.
Guilty Plea
Mr Notley did not plead guilty to the offence until the sixth directions hearing and consistently indicated until this time that he would contest the charge.
Mr Notley entered a plea of guilty on 11 October 2013. On that day, the proceedings were also listed for a sentence hearing on 11 November 2013.
However, on 11 November 2013 Mr Notley, who was then unrepresented, sought to change his plea to not guilty. The intention to change his plea was only foreshadowed to the council late on the night prior to the hearing. The Court was therefore obliged to vacate the hearing date in order to permit Mr Notley to apply to withdraw his plea. The application to withdraw his guilty plea was set down for hearing on 28 November 2013 (Port Macquarie-Hastings Council v Notley [2013] NSWLEC 193). Subsequently, Mr Notley obtained legal representation and the application was not proceeded with. The sentence hearing was therefore re-listed for 19 December 2013.
By his conduct, the utilitarian value of Mr Notley's guilty plea was eroded. The full discount of 25% on sentence cannot therefore be awarded to Mr Notley (R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [160]). In this case, I am of the opinion that a discount of 15% is appropriate.
Assistance to the Council
Mr Notley repeatedly denied the council access to the property for inspections and investigation purposes. He persisted for some time in denying the council's jurisdiction or power to exercise control over his construction of the dwelling on the property. Although he initially cooperated in an interview with council officers, subsequent requests were refused.
In these circumstances, he cannot be said to have provided any real assistance to authorities in the investigation or prosecution of the matter, as contended by the council.
Prosecutor's Costs
The council seeks its costs of these proceedings. The Court is empowered to order an offender to pay the prosecutor's legal costs pursuant to ss 257B and 257G of the Criminal Procedure Act 1986.
The payment of the council's costs can be considered by the Court when fixing an appropriate monetary penalty (Environment Protection Authority v Barnes [2006] NSWCCA 246 at [78] and [88]; Environment Protection Authority v Queanbeyan City Council (No 3) [2012] NSWLEC 220 at [248] and Rae at [68]).
Mr Notley accepts that he must pay the council's costs of the proceedings, which are likely to be not insubstantial given its procedural history.
Prosecutorial Discretion
Mr Notley submitted that a factor in mitigation should be the decision of the council to prosecute the matter in this Court rather than in the Local Court, thereby escalating the costs payable by him. This consideration is, in my view, irrelevant to the determination of an appropriate sentence to be imposed. The prosecutor retains a discretion with respect to which jurisdiction in which to prosecute matters where more than one jurisdiction is available (Magaming v The Queen [2013] HCA 40 at [20] and Elias v The Queen [2013 HCA 31; (2013) 298 ALR 637 at [34]-[35]).
Mr Notley's Capacity to Pay
As discussed above, evidence was put before the Court regarding Mr Notley's financial means so as to inform the exercise of the Court's discretion under s 6 of the Fines Act.
That evidence demonstrates that Mr Notley has minimal cash at hand of just over $2,000 in the bank, and does not own any assets. I accept that he is unlikely, in view of the mortgage over, and Ms Notley's interest in, the property, to receive any proceeds from the sale of the property. One of his company's accounts is currently in debit and he has stated that he has loans to repay.
I therefore accept Mr Notley's submission that he has a very limited capacity to pay anything more than a modest monetary penalty given his present financial circumstances.
There Are No Aggravating Factors
There are no aggravating factors relevant to the present case.
Conclusion on Subjective Considerations
The subjective circumstances of Mr Notley operate to mitigate to a reasonable degree the penalty that would otherwise be imposed by the Court.
Sentencing Purposes
As identified above, the purposes listed in s 3A of the CSPA also inform the determination of an appropriate sentence. These include: punishment (s 3A(a)); general and specific deterrence (s 3A(b)); making Mr Notley accountable for his actions (s 3A(e)); and denunciation (s 3A(f)).
Given the totality of the circumstances of the commission of the offence, I accept Mr Notley's submission that there is no real need for any element of specific deterrence in the determination of an appropriate penalty.
In the present case, there is, however, 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 do not carry out development without having obtained the necessary approval to do so (Plath v Hunter Valley Property Management Pty Ltd [2010] NSWLEC 264 at [34]; Scahill at [46]-[47] and [109]; Axer at 367 and Abroon (No 3) at [138]-[139]).
Consistency in Sentencing
A relevant consideration is the existence of a general pattern of sentencing by the Court for offences such as the offence in question (Gittany at [179]-[182]; Rae at [69] and Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [18] and [46]-[48]).
The proper approach is for the Court to examine whether the sentence is within the range appropriate to the gravity of the particular offence and 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]).
The Court was taken to a number of decisions in the council's written submissions in order to demonstrate this range. Each case, however, turns on its particular facts and circumstances. Each case is, in some respects, analogous and, in other respects, distinguishable.
The cases demonstrate that penalties imposed by the Court for first time offences of this type by an individual typically range between $7,000 to $60,000 depending on the mix of objective and subjective circumstances (see, for example, Kiama v Furlong [2009] NSWLEC 139; Naumcevski; Abroon (No 3) and Burwood Council v Doueihi [2013] NSWLEC 196).
Conclusion
In the present case, given the overall low objective seriousness of the offence, and having regard to Mr Notley's mental illness at the time of the commission of the offence and his limited financial capacity to pay a fine, I consider that a fine of $15,000 is appropriate, discounted by 20% for the mitigating factors discussed above, arriving at a total monetary penalty of $12,000.
This fine must be paid within 28 days (s 7 of the Fines Act). However, Mr Notley has the option of applying to the Registrar of the Court for further time to pay the fine or to pay the fine by instalments (s 10 of the Fines Act).
Orders
The orders of the Court are therefore as follows:
(1) the defendant is convicted of the offence as charged;
(2) the defendant is fined the sum of $12,000 to be paid within 28 days;
(3) pursuant to s 257B of the Criminal Procedure Act1986, the defendant is to pay the prosecutor's costs of the proceedings; and
(4) the exhibits are to be returned.
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