Ryde City Council v Chin
[2003] NSWLEC 64
•11/01/2002
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Land and Environment Court
of New South Wales
CITATION: Ryde City Council v Chin [2003] NSWLEC 64 PARTIES: PROSECUTOR
DEFENDANT
Ryde City Council
Larry Chung Ka ChinFILE NUMBER(S): 50050 of 2002 CORAM: Pain J KEY ISSUES: Prosecution :- unlawful use of building for purpose of residential flat building - penalty - matters in mitigation - means of Defendant to pay LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 10
Environmental Planning and Assessment Act 1979 s 76B, s 125(1)
Fines Act 1996 s 6
Ryde Planning Scheme OrdinanceCASES CITED: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683;
McDonagh on behalf of Great Lakes Council v Birdon Dredging Pty Ltd (1998) 99 LGERA 198;
North Sydney Council v Kluver [2002] NSWLEC 3;
Rao v Canterbury City Council (2000) 112 LGERA 360;
Wyong Shire Council v Ardi Pty Ltd (2000) 112 LGERA 85DATES OF HEARING: 01/11/2002 EX TEMPORE
JUDGMENT DATE :
11/01/2002LEGAL REPRESENTATIVES: DEFENDANT
PROSECUTOR
Mr CJ Leggat (barrister)
SOLICITORS
Pike Pike & Fenwick
in person
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
50050 of 2002
1 November 2002Pain J
- Applicant
- Respondent
Sentencing ex tempore Judgment
1. The Defendant, Mr Larry Chin, is charged with an offence under s 125(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) that:
- on or about 21 November 2001 at North Ryde in the State of New South Wales the Defendant did carry out development for a purpose prohibited by an environmental planning instrument, namely use the premises known as 1A and 1B Kent Road, North Ryde, which premises are zoned Residential 2A under the Ryde Planning Scheme Ordinance, for the purpose of a residential flat building, being a purpose prohibited under Clause 23 of the said Ordinance, contrary to s. 76B of the said Act.
2. I have already found the Defendant guilty of that offence and it is now necessary that I decide the appropriate penalty. The Defendant represented himself at the sentence hearing. I should note that the maximum penalty applicable under the current EP&A Act for an offence of this nature is $1.1 million since 1 February 2000.
3. I will not recite the facts here as the facts are set out at length in the judgment I gave on 3 October 2002 when I found the Defendant guilty of the offence.
Prosecutor's submissions
4. The Prosecutor’s submissions were to the effect that there was a small or low level of culpability in the circumstances before the Court, except that the Defendant had lied on oath in that he maintained that the rental arrangements at the duplexes in question were on a share basis. This was inconsistent with the facts as I found them in my judgment on the Defendant's guilt.
5. It was also said that the Defendant took four months to comply with the requirements of Council's enforcement notice in relation to the duplexes. Further, it was argued that he lacked genuine contrition or remorse, as demonstrated by his plea of not guilty, and maintained a view contrary to the facts throughout the hearing.
6. The Prosecutor also put several matters in mitigation in relation to the Defendant. Firstly, the Prosecution noted that the Defendant had contributed to the community as a councillor of Ryde City Council. There is no record of similar conduct on his part and certainly no prior convictions before the Court. There were no environmental consequences as a result of the illegal work having been carried out by the Defendant. (I also note that any illegal work has been rectified by the Defendant).
7. It was also put by the Prosecutor that the Defendant has been subject to a level of public vilification in the local newspaper over a period of several months and further that the Council’s legal costs, which are estimated at the moment at approximately $32,000, are likely to be a significant financial burden on the Defendant.
8. It is also the view of the Prosecutor that there was little need for specific deterrence to be taken into account in relation to the penalty to be imposed. The Prosecutor’s submission was that it was very unlikely that the Defendant would re-offend, although I note the Prosecutor did submit that I should have regard to the effect of general deterrence in setting the level of penalty.
9. The Prosecutor referred me to three decisions which may assist the Court in relation to the level of penalty; all of these related to a low penalty range, that is North Sydney Council v Kluver [2002] NSWLEC 3, McDonagh on behalf of Great Lakes Council v Birdon Dredging Pty Ltd (1998) 99 LGERA 198 and Rao v Canterbury City Council (2000) 112 LGERA 360.
Defendant's submissions
10. The Defendant rejected the prosecution’s suggestion that he showed no remorse. He considered that he took immediate steps in November 2001 and early 2002 to ensure compliance with Council’s requirements in relation to changing the duplexes, except for the bar in the upstairs of the duplex at 1B. On receiving further directions from the Council in February to remove that, he did so. The notices from Council were complied with on or about 2 April, at which time there was an inspection by the Council showing that he was fully compliant. He says he did express regret to senior Council officers and he also says that he at all times admitted what has occurred.
11. I have some trouble accepting that last submission, given that the Defendant did come to Court and plead not guilty, but I do accept that the Defendant generally complied reasonably promptly with the Council’s requirements, once known to him, to correct matters at the duplexes after 27 November 2001.
12. The Defendant further submitted there was no environmental impact on neighbours, or anyone else, resulting from his activities. He said he was able to gain no financial advantage in terms of the rental arrangements at the duplexes. He says he has suffered financial penalties because he has had difficulty in renting out the property, has sustained adverse publicity over nine months in the local press and has had considerable stress placed on himself and his family as a result of this matter.
13. The Defendant also handed up a number of character references to assist the Court.
14. I should note the Defendant also provided the Court with a copy of a decision of Wyong Shire Council v ArdiPty Ltd (2000) 112 LGERA 85, but I did not derive a great deal of assistance from that matter. That case was of a substantially different nature, being a Class 4 matter, to this Class 5 matter.
Finding
15. In considering the gravity of the crime, it is clear there is no harm to the environment. In relation to the culpability of the Defendant, I accept the Prosecutor’s submission on culpability that there is a low level of culpability, but I note that the Defendant has maintained, even in Court today, a position that seems to be inconsistent with the facts as I found them in relation to the share arrangements at the duplexes.
16. In considering what is the appropriate level of crime, it is clear law based on Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 that the sentence must be proportional to the gravity of the crime. The Court must also to have regard to the maximum penalty applicable as this is an expression of the seriousness that Parliament attributes to the offence.
17. I also need to have regard to the principle of even-handedness. Penalties imposed in respect of convictions for similar offences under the previous penalty regime will not be directly relevant, given the significant increase in the maximum penalty in this case. Given the relatively recent increase in penalty there are very few comparable cases to consider in relation to this matter.
18. There is a need to ensure the penalty does have the effect of general deterrence, but in relation to specific deterrence I accept the Prosecutor’s submission that this offence can most probably be characterised as an uncharacteristic aberration on the part of the Defendant. I do not see any need to reflect specific deterrence in the penalty that I impose.
19. I consider that in all these circumstances a small penalty is appropriate. I note that there was no application made under s 10 of the Crimes (Sentencing Procedure) Act 1999 for the offence to be dismissed and that is appropriate as I would not have made such an order as I do not think the offence can be described as trivial.
20. In my opinion, the circumstances of the offence warrant an penalty of $10,000 but there are a number of mitigating factors I wish to take into account in reducing that. In terms of contrition and remorse, I do need to consider that the Defendant does not appear to accept the Court’s finding that he was guilty, because he has continued to prefer his version of the arrangements at the duplexes to that of his tenants, when I accepted his tenants' evidence in my judgment on guilt. I do note, however, that the Defendant has been subject to a quite substantial amount of public vilification and comment in the local press over several months. He has pointed out that he has cooperated with the Prosecutor in correcting the illegal use of the duplexes and I have accepted that was within a reasonable time and, to the extent that that is relevant on contrition and remorse, I accept the Defendant’s submissions on those matters.
21. It is usual to look at issues such as cooperation with the prosecution. In this case, given that there was a plea of not guilty, there was not cooperation with the Prosecution in terms of the actual prosecution but I have already noted that broadly in the overall context of the matter the Defendant has cooperated in correcting the illegal uses.
22. I note the Prosecutor’s estimate of costs is substantial, some $32,000 has been put to me, and that is certainly a matter that I need to take into account.
23. I take into account the fact that there is no prior record on the part of the Defendant and it would appear that he is generally of good character which is confirmed by the character references that he has provided to the Court. I accept that this offence was an aberration on the part of the Defendant.
24. The last matter that I need to consider is the means of the Defendant to pay. Section 6 of the Fines Act 1996 provides that in the exercise of its discretion to fix an amount of any fine, a Court is required to consider such information regarding the means of the Defendant to pay as is reasonably and practically available to the Court for its consideration. I was given some evidence by the Defendant on this issue.
25. It would appear that presently the Defendant has very little in his bank account, only an amount of some few hundred dollars. His only income, he informed the Court on oath, was presently his Council allowance of some $230 per week. He is trying to rent out one of the duplexes and if he is successful he is hoping to obtain $450 to $500 per week for that duplex. His wife has recently quit her job as Director of Children's Services, Parramatta Council and the Defendant advises he is currently looking for work. I am not sure what the nature of that work is. I do note the Defendant was renting out the two duplexes or part thereof for much of 2001. It would appear that the Defendant currently has little income, given his family responsibilities with a wife and two children to support, but does have the ability to earn more income from the rental of one of his duplexes and obtaining work of some description.
26. Given all these factors, it is appropriate I reduce the amount of the penalty. In all the circumstances, I consider an amount of $7,500 is appropriate and that is the penalty I will impose.
Orders
1. The Defendant is convicted of the offence with which he is charged.
2. The Defendant is fined the sum of $7,500 to be paid to the Registrar of the Court within 28 days of today’s date.
3. The Defendant must pay the Prosecutor’s costs of the proceedings against him, as agreed or assessed.
4. The exhibits may be returned.
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