The Council of the City of Sydney v Imaeda

[2017] NSWLEC 19

Land and Environment Court

New South Wales

Medium Neutral Citation:	The Council of the City of Sydney v Imaeda [2017] NSWLEC 19
Hearing dates:	16 May 2016; 16 June 2016; 14 July 2016; and 2, 28, 29 September 2016
Date of orders:	10 March 2017
Decision date:	10 March 2017
Jurisdiction:	Class 5
Before:	Sheahan J
Decision:	See paragraph [136]
Catchwords:	ENVIRONMENTAL OFFENCES: development and use of land without consent – one use prohibited – pleas of guilty to both offences – sentencing principles – question of mental incapacity or impairment affecting defendant’s culpability – environmental harm – aggravating and mitigating factors – fines imposed – principle of totality applied – agreement to pay costs.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Environmental Planning and Assessment Act 1979 Evidence Act 1995 Sydney Local Environmental Plan 2012
Cases Cited:	Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Blue Mountains City Council v Carlon [2008] NSWLEC 296 Burwood Council v Doueihi (2013) 200 LGERA 152; [2013] NSWLEC 196 Burwood Council v Erector Group Pty Ltd; Burwood Council v Liverpool Developing Pty Ltd [2017] NSWLEC 20 Cameron v Eurobadalla Shire Council (2006) 146 LGERA 349; [2006] NSWLEC 47 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 City of Sydney v Mae [2009] NSWLEC 84 Council of the City of Sydney v Trico Constructions Pty Ltd [2015] NSWLEC 56 Cumberland Council v Badaoui Habib [2017] NSWLEC 18 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 Environment Protection Authority v Barnes [2006] NSWLEC 2 Environment Protection Authority v Hanna [2010] NSWLEC 98 Environment Protection Authority v Orange City Council [1995] NSWLEC 103 Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299; [2006] NSWLEC 419 Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242 Hunters Hill Council v Hakim & Anor [2010] NSWLEC 62 Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114 Liverpool City Council v Maller Holdings Pty Ltd (No 2) [2015] NSWLEC 48 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 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 Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 R v Dodd (1991) 57 A Crim R 349 R v Holder, R v Johnston [1983] 3 NSWLR 245 R v Olbrich (1999) 199 CLR 270 R v Thomson, R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 The Council of the Municipality of Kiama v Gerringong Developments Pty Limited [2007] NSWLEC 257 The Queen v De Simoni (1981) 147 CLR 383 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Warringah Council v Ulrich [2012] NSWLEC 234 Willoughby City Council v Livbuild Pty Ltd [2015] NSWLEC 34 Wollongong City Council v Kudrynski & Anor [2013] NSWLEC 4
Category:	Sentence
Parties:	The Council of the City of Sydney (Prosecutor) Masaaki Imaeda (Defendant)
Representation:	Counsel: Mr J Johnson, barrister (Prosecutor) Mr A Crossland, barrister, with Mr D Sweeney, barrister (Defendant)   Solicitors: The Council of the City of Sydney (Prosecutor) Foulsham & Geddes Pty Ltd (Defendant)
File Number(s):	2016/1545102016/154511

Judgment

Introduction

1. The defendant Masaaki Imaeda pleaded guilty at a very early stage to two charges, which have now been the subject of a joint sentencing hearing.

2. The parties agreed that evidence in either case would also be evidence in the other, and that the defendant’s guilty pleas to both charges were entered at the earliest practical time.

3. The land on which these offences were committed (“the subject land”) is Lot 2 DP 86774; it is known as 90 Burrows Road, Alexandria, and it is zoned “B7 Business Park Zone” under the Sydney Local Environmental Plan 2012 (“the LEP” – Agreed Fact 3).

4. It is common ground, and clear from the evidence, that, at the time the offences came to notice, the circumstances of, at, and on, the subject land were “chaotic”, and that the offences came to notice when a serious fire occurred on the site in the early hours of 2 July 2014.

5. The LEP relevantly prohibits, in the B7 zone, in the absence of development consent, the use of the subject premises, for storage, and it totally prohibits their use “for the purpose of a caravan park, tourist and visitor accommodation or a boarding house” (Agreed Fact 4).

The Charges

6. The evidence presented to the Court falls to be considered in respect only of the two charges brought against the defendant by the Council, and not for any other offences to which the defendant’s (proven or admitted) conduct of/on the site might have exposed him: The Queen v De Simoni (“De Simoni”) (1981) 147 CLR 383, per Gibbs CJ (with whom Mason and Murphy JJ concurred), at 389.

7. Specifically, the prosecutor made clear that it was not Council’s case that the fire on the site resulted from any deliberate or negligent act on the defendant’s part (T28.9.16, p4, LL4 – 6).

8. Imaeda was charged under s 125(1) of the Environmental Planning and Assessment Act 1979 (“EPA Act”) with:

1. an offence that, contrary to s 76A(1)(a) of the EPA Act, and between about January 2014 and about 2 July 2014, he:

carried out development on land, being development which required development consent under the provisions of an environmental planning instrument which applied to the land, where a development consent had not been obtained and was not in force with respect to the development.

and

2. an offence that, contrary to s 76B of the EPA Act, and in that same date range, he:

Carried out development on the land being development which was prohibited to be carried out under the provisions of the [the LEP].

9. Section 76A(1) provides:

General

If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:

(a)   such a consent has been obtained and is in force, and

(b)   the development is carried out in accordance with the consent and the instrument.

10. Section 76B provides:

Development that is prohibited

If an environmental planning instrument provides that:

(a)   specified development is prohibited on land to which the provision applies, or

(b)   development cannot be carried out on land with or without development consent,

a person must not carry out the development on the land.

11. The “development” specified in charge (a) (matter number 50185 of 2015, now number 2016/154510) is the use of the subject land to store “vehicles, boats, trailers, building materials, and foodstuff”

12. The “development” specified in charge (b) (50186 of 2015, now number 2016/154511) is the use of the land for the following accommodation type purposes:

1. “The defendant used four (4) caravans, a pantec type truck and a bus located on the land for the purpose of a caravan park”;

2. “The defendant used part of an office building on the land for the purpose of tourist and visitor accommodation”; and

3. “The defendant used part of an office building for the purpose of residential accommodation”.

13. The maximum penalty for each offence, as at the relevant date (January to 2 July 2014) is a fine of $1.1 million: Council of the City of Sydney v Adams [2015] NSWLEC 206.

The Sentencing Hearing

14. The parties agreed upon – and filed on 13 April 2016 – a Statement of Agreed Facts (“SAF” – Exhibit P1, which included associated documents), and they also filed their respective submissions on sentence in advance of the originally scheduled sentencing hearing.

15. However, when the hearing commenced on 16 May 2016, some concern was expressed by defence counsel regarding the defendant’s mental health, and the hearing was adjourned for the defendant and his representatives to obtain medical advice and/or evidence.

16. Ultimately, no application was made for the Court to determine the defendant’s “fitness to plead”.

17. However, the hearing was postponed on several occasions, until both parties had assembled their medical evidence, and filed their submissions regarding it, in the context of sentencing. I will return to deal with the medical issues below ([107] below).

18. The substantive sentencing hearing was eventually held on 28 – 29 September 2016.

19. I turn now to the evidence relevant to sentencing this offender.

The Evidence

Agreed Facts

20. At the time of the offences the defendant was a director of two companies, Shinji Pty Ltd and Masaaki Enterprises Pty Ltd.

21. Shinji Pty Ltd owned the subject premises. From 1995 until April 2015, the directors of Shinji Pty Ltd were the defendant and his former wife Mariko, with one $1 share each, and the defendant was the secretary. The defendant and Mariko have been, since 1985, and remain, also the directors of Masaaki Enterprises Pty Ltd. The defendant is the secretary of that company, but both $1 shares are held by Mariko (SAF 1, and ASIC documents in tab A).

22. SAF 5 says(my emphasis):

Development consent was granted in 1997 to use the subject premises for the purposes of a tourist coach depot for 10 coaches and for the construction of a covered bus parking shed, including a wash bay. The development consent also permitted use of an existing building at the north-western corner of the premises as an ancillary office with an associated driver rest room.

23. SAF 6 and 7, and the plans at tab B, detail the layout of the subject premises, and explain that the defendant:

a.   Converted an abandoned bus which he rented for use as accommodation ... A kitchen had been installed, with the sink draining to stormwater;

b.   Installed a caravan and annex above a shipping container, the caravan and annex being rented for accommodation ...;

c.   Installed three other caravans ... which were rented for accommodation;

24. The SAF describes the occupation and use of the site in more detail (at 15 to 36), including details of Imaeda’s customers, and their rental arrangements, but those details need not be repeated here.

25. When the fire broke out at the subject premises on 2 July 2014, they and a neighbouring government building (No 92) were extensively damaged. The NSW Police and NSW Fire and Rescue attended (prosecutor’s subs par 9, and SAF 8 – 9, and 12).

26. The SAF continues:

9.   ... It became apparent during the operation that people had been at the time of the fire residing at the premises in accommodation that included four caravans, a bus and an office building.

10.   Fire officers were directed to search the rear of the premises. Officers located one person in a caravan, two people in a bus and another person behind a shipping container. The four were escorted to safety by the fire officers and had to be shielded from the heat by the officers.

11.   Twelve Japanese males and one Korean female were evacuated from the premises and were taken to Sydney Park Pavilion. Two people who had been sleeping in a truck left in their own vehicle.

...

14.   The Defendant installed a number of caravans and a bus at the subject premises. He furnished and fitted these out so that they could be rented. The defendant ran power cords to the bus and to the caravans. Each caravan and the bus had a small fridge. The power would shut off regularly because too much current was being drawn, particularly in winter if tenants used heaters.

27. SAF 13 records that:

13.   Fire and Rescue NSW prepared a Fire and Rescue Synopsis no.IN104/2014 [a redacted version of which is before the Court as Exhibit P5]. The defendant did not hold insurance which would cover the losses of the residential tenants or those who paid to store goods on the premises.

28. SAF 17 and 36 note that:

17.   The defendant also lived in the building at the front of the subject premises himself for about four years, using it as residential accommodation.

...

36.   The defendant used the premises for the purpose of storage of his own goods, including [some] areas marked ... on the site plan annexed [at tab B].

29. The SAF concludes (37 – 38), under the heading “Co-operation since the fire”:

37.   Following the fire, the defendant co-operated with the police by giving a record of interview on 2 July 2014.

38.   The defendant has co-operated with the Council. On 8 July 2014, Liam Saville, a Council officer carried out an inspection of the subject premises with the defendant, who answered questions and allowed videoing and photographs of the subject premises. The defendant also took part in an interview on 26 September 2015 where he answered all of the questions put to him.

Defendant’s Evidence

30. The defendant chose not to give oral or affidavit evidence himself.

31. However, one of his two sons, Shinji Imaeda (born 21 June 1987), provided an affidavit (dated 2 August 2016). As he presently resides in Japan, the prosecutor did not require him to return to Sydney for cross-examination.

32. Shinji deposed to the family having lived at Annandale, Alexandria, and Kingsgrove.

33. He observed (par 9) that, from about 1996 – 1997, his father was “almost always angry ... shouting ... [and] never affectionate ...”, and further deposed (pars 10 – 15) to his father’s inability to “have a conversation ... about any personal issue”, to his receiving only one “present from him during my whole life”; to never hearing from anyone that he had any friends except back in Japan; and to a poor relationship with his wife. The defendant “is entirely self-absorbed and selfish”. Shinji’s only conversations with the defendant “generally concern his [father’s] immediate needs and concerns and not those of any other person”.

34. He added (at 17):

At no point during my life when I was sad or unhappy, or members of my family appeared to me to be sad or unhappy, did I observe my father expressing any concern or recognition of that fact. In my observation, in social situations, my father cannot read the emotions of people around him.

35. Shinji Imaeda had a serious disagreement with his father in 2009, and moved away for about a month. When he returned home, his father left, and apparently began to reside at the subject property. On most occasions, when Shinji visited the defendant at that property (every couple of weeks from about 2010 – par 7), the defendant (par 8) “was very drunk to the point of stumbling”. He further notes (in par 8) that:

... This was the continuation of a pattern which I observed during most of my adolescence and young adult life, being that my father would regularly (at least one or twice a week) get very drunk to the point of excess and would be incapable of even standing up.

36. Shinji Imaeda deposes (par 16) to a troubling incident involving his younger brother, Koji, in Japan, between late 2015 and May 2016, in which the defendant showed “no interest or concern”. However, other evidence suggests that Koji now resides primarily with the defendant while being treated for mental health issues.

37. Shinji (pars 18 – 19) has also become very familiar with the subject property, and observed, between 2010 and 2014, the accumulation on it, in a shipping container, two trucks, and a large shed, or just “lying about”, of “junk, materials and second hand items”, including electrical goods, timber, building materials, car parts, furniture and so on. The defendant (par 20) “did not throw anything out ... but ... used about five per cent of what he collected”.

38. Shinji also witnessed (par 22) similar “hoarding” at three lock-up garages, in Bexley North and Kingsgrove, but the defendant consistently protested (pars 21 and 23) that he needed the items. Shinji moved a lot of stored furniture and materials from Bexley North and Kingsgrove to the defendant’s property at Ingleburn (par 27, and May 2016 photographs annexed).

39. In more recent years, according to Shinji (par 25), the defendant “spends a large part of his day bidding for things on ebay”, including four boats. Shinji notes that the defendant “has no hobbies or interests that relate to fishing or the water ... and does not ... have a boat license (sic)”.

40. Dimitri Gotsis (affidavit 26 September 2016) is a chartered accountant of 35 years’ experience.

41. He acted for the defendant from 1988 to the mid 2000s, during which time the defendant grew and ran a substantial coach business (18 – 20 buses and 30+ employees), with a turnover “in the vicinity of $2 million or so a year” (pars 1 – 3).

42. Gotsis says (par 3) that “it was a successful and profitable business for many years”, and (par 4, 5, 9, and 11) that he “formed the view that [the defendant] was an astute person”, “smart” in business affairs, hardworking, thorough, and open to “external professional advice”, but a “hands-on” business owner and operator, who “would not cut corners”.

43. The Burrows Rd site served as the defendant’s bus depot, and he had an office there. During the 1990s, Gotsis visited that site on numerous occasions – the premises were, he says (par 6), well organised, and “seemed to be well maintained”.

44. Gotsis deposed (pars 8 and 9) that the defendant conveyed to him “a desire to observe and obey the law and to do things the proper way”. The coach business “declined in the early 2000s, ... primarily due to a substantial downturn in the Japanese tourist market in Sydney at that time “ (par 12).

45. Gotsis deposes (par 13):

I met with Mr Imaeda in person on a number of occasions when his business was floundering. His demeanour was downcast and he seemed to be in despair. I remember telling him “It is not your fault. Things go up and down in business cycles.” Mr Imaeda did not seem to me at that time to be as mentally as strong as he used to be during the 1990s.

Expert Evidence

46. Both the prosecutor and the defendant relied upon the written and oral evidence of reputable psychiatrists – Dr Yvonne Patricia Skinner (Exhibits P8 and P9), and Dr (John) Albert Roberts (Exhibits D1 to D11), respectively.

47. The two doctors conferred, and prepared a joint report (Exhibit P10).

48. Both also referred to some scans obtained by Dr Roberts (Exhibits P6 and P7), and to expert articles provided by Dr Skinner (Exhibit P4).

Prosecutor’s Other Evidence

49. On 2 July 2014, the day of the fire, the defendant agreed to be interviewed by the NSW Police at Redfern Police Station, and the transcribed record of that interview (“ROI”) is before the Court as Exhibit P2.

50. Also tendered was a DVD of an inspection of the premises, and an on-site interview, with the defendant, apparently by Council officer Liam Saville, on 8 July 2014 (Exhibit P3). The defendant was shown being appropriately cautioned, but he was very candid. Some 127 photographs taken by Saville on site on that date are included in the SAF at tab C (but without index or captions).

51. The Fire Investigation Synopsis (Exhibit P5) was issued on 29 July 2014. The text was redacted by agreement between counsel, but the captions to the photographs which remain are informative.

52. Of particular interest is a photograph (on p76) showing “the office area which doubled up as a casual sleeping area for the owner”, and another (on p77) showing all the temporary accommodation “at the North East corner, to the rear of the site”.

53. The damage caused by the fire was clearly extensive and serious, including the complete destruction of the Public Works building next door (p86).

Ruling on Evidence

54. After the doctors’ oral evidence had been concluded on 29 September 2016 (Tp86, LL1 – 11), both of them having seen, and been questioned about, the DVD and the ROI, I made a ruling under s 136 of the Evidence Act 1995, in terms agreed with both counsel, that Exhibits P2 and P3 had been:

... admitted only for the following purposes:

(a)   proving or disproving facts, assumptions or opinions raised in mitigation by defendant as set out in the expert reports of Mr Roberts or Ms Skinner;

(b)   the chaotic nature of the land at 90 Burrows Rd, Alexandria

but that the evidence is not be (sic) admitted for any other purpose.

Sentencing Principles

55. The purposes of sentencing, as set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (“the CSP Act”), are:

(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.

56. Section 21 of the Act confers general powers to reduce penalties in appropriate circumstances.

57. Section 21A identifies matters to be taken into account, mainly in respect of aggravation or mitigation:

Aggravating, mitigating and other factors in sentencing

(1)   General

In determining the appropriate sentence for an offence, the court is to take into account the following matters:

(a)   the aggravating factors referred to in subsection (2) that are relevant and known to the court,

(b)   the mitigating factors referred to in subsection (3) that are relevant and known to the court,

(c)   any other objective or subjective factor that affects the relative seriousness of the offence.

The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.

(2)   Aggravating factors

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

...

(g)   the injury, emotional harm, loss or damage caused by the offence was substantial,

...

(i)   the offence was committed without regard for public safety,

...

(ib)   the offence involved a grave risk of death to another person or persons,

...

(n)   the offence was part of a planned or organised criminal activity,

(o)   the offence was committed for financial gain,

...

The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.

(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,

(b)   the offence was not part of a planned or organised criminal activity,

...

(d)   the offender was acting under duress,

(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),

(j)   the offender was not fully aware of the consequences of his or her actions because of the offender’s age or any disability,

(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).

(4)   The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.

(5)   The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence.

...

58. The High Court has said that arriving at the appropriate sentence in a particular case requires an “instinctive synthesis” of all the relevant objective circumstances of the offence with the relevant subjective circumstances of the offender: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, and Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39.

59. I have already referred to the important principle to be drawn from De Simoni ([6] above). The defendant is not to be sentenced in respect of any possibility that the fire which brought his operations to notice may have resulted in fire-related charges against him. Defence counsel submitted (subs 10.5.16, pars 4 to 6) that (1) the defendant has readily admitted breaches of the development approval regime, and (2) “there is no logical connection ... between [those breaches] ... and either the fact of the fire or the damage it caused” (see also T29.9.16, p104, LL7 – 35).

60. In Plath v Rawson (“Plath”) (2009) 170 LGERA 253; [2009] NSWLEC 178, Preston ChJ set out (at [46] – [48]) various matters which may be taken into account when assessing the objective gravity or seriousness of an environmental offence. Although not an exhaustive list, these matters included:

• The nature of the offence;

• The maximum penalties for the offence;

• The harm caused to the environment by commission of the offence;

• The state of mind of the offender in committing the offence;

• The offender’s reasons for committing the offence;

• The foreseeable risk of harm to the environment by commission of the offence;

• The practical measures to avoid harm to the environment; and

• The offender’s control over the causes of harm to the environment.

61. Many older authorities had noted that the objective gravity of the offence fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit insofar as the sentence must not exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances: Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14. It fixes the lower limit because allowance for the subjective factors of the case ought not produce a sentence which fails to reflect the objective gravity or seriousness of the offence: R v Dodd (1991) 57 A Crim R 349.

62. Further, in Plath (at [140]), Preston ChJ set out the “favourable” factors relevant to an offender, which may be taken into account within the limits set by reference to the objective gravity of the offence. This also was not intended to be an exhaustive list, but included:

• Lack of prior criminality;

• Prior good character;

• Plea of guilty to the offences;

• Contrition and remorse; and

• Assistance to authorities.

63. Preston ChJ also noted (at [202]):

A fine is the most common sentencing option and often the most appropriate penalty for environmental offences. The fine embodies the legislative view, based on community standards, of the seriousness of criminal conduct. A fine can achieve the purposes of sentencing of retribution, accountability, denunciation and deterrence. ...

64. Matters adverse to an offender must be established by the prosecutor beyond reasonable doubt, but the onus on the offender to establish matters favourable to him is on the balance of probabilities: R v Olbrich (1999) 199 CLR 270.

65. In Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (“Camilleri”) (1993) 32 NSWLR 683, at 698, Kirby P said (emphasis mine):

While it is the function of the Court itself to assess the seriousness of the offence in question, the maximum penalty available for an offence reflects the "public expression" by parliament of the seriousness of the offence: ... The task of a court is to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the scale of penalty set by the legislature from zero to the maximum.

...

... The Court must keep in mind not only the facts which establish the seriousness of the offence but also those which tend to mitigate that seriousness or exculpate the offender. In this process, where a relevant fact is the subject of conflicting evidence, and where that evidence is of like probability, the Court should resolve the conflict of fact in favour of the offender: ...

66. While the objective gravity of an offence establishes both an upper and a lower limit for the penalty, "the subjective mitigating features should never produce a sentence that fails to reflect the gravity of the incident, or the objectives of punishment, which include both retribution and deterrence": Environment Protection Authority v Waste Recycling and Processing Corp (“Waste”) (2006) 148 LGERA 299; [2006] NSWLEC 419, at [140].

Considerations

67. The offending conduct in this case came to Council’s adverse notice because of a serious fire. Such a situation is not unusual: see, e.g. Council of the City of Sydney v Mae [2009] NSWLEC 84, at [19].

68. The relevant charges concern use of land (a) for storage, without the required consent, and (b) for accommodation, a use which is prohibited.

69. As I observed, in Hunters Hill Council v Hakim & Anor [2010] NSWLEC 62, a contempt case, at [49] – [50]:

49   The laws governing development control serve an acknowledged and legitimate public purpose. The actions of Councils in restricting development are often not appreciated, but compliance is not optional, no matter what advice one receives, nor how much one likes or needs an offending structure.

50   ... the courts will not hesitate to act firmly to enforce “scrupulous obedience” of them, and so protect the courts’ integrity in upholding the law and its valid application. ...

70. The present defendant held a consent to use the land as a tourist bus depot, but proceeded to accumulate and store on it large quantities of material, belonging to him and to paying customers, and to install and/or adapt various vehicles, other plant, and the site office, for personal and rental accommodation purposes. There were thirteen “tenants” on the site at the time of the fire.

71. In order to perform the Markarian/Muldrock synthesis, I turn first to consider the objective seriousness of the offence, then the subjective factors.

Objective Considerations

72. First among the relevant objective considerations is the very heavy maximum penalty Parliament has prescribed for both offences.

73. Secondly, the Court has to consider the resulting environmental (including human) harm – actual, likely or potential – and the risk of harm. See Waste, at [145] – [148], and Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357, at 366.

74. All development carries some risk that harm may result, especially if it involves gas cylinders, household electrical appliances, and electrical systems, which are not properly certified, and/or regulated (see photographs 19 to 31, and 76, in Exhibit P1, tab C).

75. The use of basic domestic ladders to access some of the elevated accommodation may also involve potential human harm (see photographs 33, 37, 38, 43 – 45. See also Exhibit P5, p78, and T28.9.16, p6. LL24 – 26).

76. The prosecutor submitted (par 43) that it was “not aware of any cases which have considered sentencing where such significant potential harm to human health resulted from a breach of s.125 of the EP&A Act”.

77. Fire is a foreseeable risk arising from the subject accommodation development, but there is no evidence regarding any risk of fire from the storage use, simpliciter. Fire is a potential risk to human health. Fortuitously, no human harm resulted from the unexplained fire which affected the subject site. Insofar as electrical works were a key component in the unauthorized development, the potential harm from them could be seen as “substantial”, and, therefore an aggravating factor under s 21A. There is an element of recklessness on the defendant’s part regarding public safety.

78. As the prosecutor submitted (T28.9.16, p4, LL6 – 14), the fire:

is an important part of the story, as to the means by which the breach became apparent, and it's a graphic demonstration of the nature of the potential for risk of harm inherent in the defendant's breaches of the law. So to that extent, that's why that evidence we have included it as part of the statement of agreed facts, that's why we have photographs of it. So not only does it show where the various accommodation was and how it was arranged, but the fact of the fire demonstrates, and thankfully there was no loss of life, but it demonstrates the potential for harm that existed because of the way the defendant carried out the breach.

(See also T29.9.16, p89, LL32 – 35.)

79. It is clearly established by the authorities that either unauthorized or prohibited development/use causes harm simply by reason that it undermines the effectiveness and the integrity of the statutory system of planning and development controls: see, e.g., Council of the City of Sydney v Trico Constructions Pty Ltd [2015] NSWLEC 56, at [65]; Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89; [2002] NSWLEC 132, at [35]; Blue Mountains City Council v Carlon [2008] NSWLEC 296, at [62]; Burwood Council v Doueihi (“Doueihi”) (2013) 200 LGERA 152; [2013] NSWLEC 196, at [10], and T29.9.16, p91, LL1 – 5).

80. Thirdly, the state of mind of the offender at the time of the offence can affect the Court’s assessment of its objective seriousness: Cameron v Eurobodalla Shire Council (“Cameron”) (2006) 146 LGERA 349; [2006] NSWLEC 47.

81. Here both the use/developments at the heart of the charges were conceived and carried out deliberately, adding to their objective seriousness: Camilleri, at 700.

82. I will return to the defendant’s case that he suffered from a mental impairment that might reduce his moral culpability in this respect (T29.9.16, p91, LL7 – 10), but it has not been explained to the Court why he would obtain consent for a bus depot, but not for backpackers accommodation.

83. The prosecutor’s case (T29.9.16, p92, LL26 – 29) is that the defendant “clearly knew ... what he was doing”.

84. Fourthly, with the defendant’s tourist bus use having collapsed, his leasing of the subject land for storage and/or for human accommodation were both undertaken for financial gain (perhaps $100,000 pa), also adding to objective seriousness: Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242, at [41].

Subjective Considerations

85. The defendant was born in Japan, came to Australia in 1973, and is now in his middle-sixties.

86. He appears to have had a difficult family life in Japan, and his life in Australia has also involved much sadness. He is divorced, and appears to now reside with his son, Koji, aged about 24. His former wife and that son both appear to have mental health issues (see Exhibit P9, p4).

87. His concern for Koji would seem to me to indicate a greater capacity for kindness and selflessness on the defendant’s part than Shinji’s affidavit suggests.

88. He worked in the motor trade before commencing, in 1987, an apparently successful tourist bus business, which declined to the point of its eventual closure in 2002 (Exhibit P9, p3).

89. The defendant produced no character evidence, but, on the other hand, no evidence was led to indicate to this Court that he is a person of poor character.

90. The defendant pleaded guilty to both charges at a very early stage, entitling him to a full “discount” on penalty of 25% (not merely 15%, as his counsel submitted): R v Thomson, R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309.

91. No evidence was led to support any submissions that, beyond his pleas of guilty, he has demonstrated remorse or contrition (T29.9.16, p11, LL36 – 40). The plea alone is not sufficient to establish remorse or contrition: Environment Protection Authority v Hanna [2010] NSWLEC 98, at [68].

92. He has no record of environmental offending.

93. His level of co-operation with the authorities was exceptionally high (T29.9.16, p111, L50).

94. He has also agreed to pay the prosecutor’s costs, estimated at $71,000 (p110, LL17 – 18).

95. All those matters considered, I am prepared to give the defendant a total discount on monetary penalty in the order of one-third.

Finding on seriousness

96. In the “unapproved development”, or accommodation, offence, there are several aggravating features (s 21A(2) in [57] above, items (g), (i), (ib) and (o)), but in the “prohibited use”, or storage, offence, none of those is present.

97. In both offences, there are several mitigating features (s 21A(3), in [57] above, items (b), (e), (g), (k), and (m)). I have allowed for these features, and also for the large payment required of the defendant in respect of costs: Environment Protection Authority v Barnes [2006] NSWLEC 2.

98. Cases in both Class 4 and Class 5 of this Court’s jurisdiction, involving “collecting”, or “hoarding”, e.g. Warringah Council v Ulrich [2012] NSWLEC 234; and Wollongong City Council v Kudrynski & Anor (“Kudrynski”) [2013] NSWLEC 4, are notoriously difficult for the Court, and often, as here, involve “recycling” of plant, and/or construction of unapproved structures. The affected properties are generally “kept in an unsightly condition, raising serious concerns ... about fire risk, risks to human health and/or safety” and so on (Kudrynski, at [78]).

99. In the present case, the offences came to notice only after the fire, and the Court has photographs only of how the fire left the site, not how it was before that event.

100. In terms of the scale of seriousness developed by Stein J in Environment Protection Authority v Orange City Council [1995] NSWLEC 103, I conclude that the accommodation offence in the present case is of “moderate” seriousness, by which I mean somewhere towards the upper end of the “low to mid”, 10 – 30%, range, or approximately 25% of the worst case, and the storage offence as of relatively “low” seriousness, not more than 10% of the worst case. (See again the Camilleri principles, quoted in [65] above.)

Sentencing considerations

101. The prosecutor concedes that this defendant is unlikely to re-offend in environmental and planning matters, and that specific deterrence is not necessary.

102. However, because of the prevalence of offences such as this, the prosecutor submits that general deterrence is an important sentencing consideration.

103. I agree with both aspects of those submissions: see Cameron, at [71] – [84].

104. The prosecutor also acknowledged that the Court should consider the “overlap” between the two offences, bringing up for consideration the “totality” principle, and the need to avoid double punishment: see R v Holder, R v Johnston [1983] 3 NSWLR 245; Environment Protection Authority v Sydney Water [2015] NSWLEC 80, at [114]; Burwood Council v Erector Group Pty Ltd; Burwood Council v Liverpool Developing Pty Ltd [2017] NSWLEC 20.

105. While Mr Crossland, for the defendant, freely conceded that his client’s breaches were serious (T29.9.16, p108, L48), Mr Johnson, for the prosecutor, was prepared to concede (p101, LL13 – 23) that they were a “lapse of judgment”, of the type that occurs “not infrequently”, and often at times of financial pressure.

106. I turn, therefore, to examine the defendant’s culpability.

107. Mr Crossland argued (subs part 2, pars 1, 3 and 4) that the defendant’s lapses of judgment flowed from lesions and atrophy in the brain, which caused him some mental impairment, such as to reduce his moral culpability, and mitigate his offences (T28.9.16, p8, L50). Counsel relied on Gotsis’s evidence to indicate on the defendant’s part a “profound medical change which has changed [the defendant’s] attitude to risk, to lawfulness, to compliance and to all the questions that” concern this Court on sentencing (T29.9.16, p107, LL1 – 4).

108. On the other hand, Mr Johnson submits (T29.9.16, p101, LL18 – 23):

It's not rational. Sometimes it's not commercial, particularly when you take into account the penalty which results. But they don't do it because they have lost the ability to reason. It's a lapse of judgment which is equally explicable on the basis of reasonable psychiatric, not just of reasonable psychiatric grounds but of other reasons, other psychosocial reasons.

109. In Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194, McClellan ChJ CL (at [177]) summarised the principles to be applied when sentencing an offender who is suffering from “a mental illness, intellectual handicap, or other mental problems”. Inter alia, His Honour said (citations omitted):

• Where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: ...

• It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: ...

...

• It may reduce or eliminate the significance of specific deterrence: ...

• Conversely, it may be that because of a person’s mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: ... Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: ...

110. His Honour went on to say ([178]):

I should stress that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence: ...

111. The Court, in the present case, has had the benefit of expert psychiatric evidence.

112. Dr Roberts, to whom the defendant was referred when his lawyers became concerned about him ([15] above), identified that the defendant consumed alcohol, caffeine and tobacco to excess, and had a number of physiological problems, especially hypertension.

113. Physically, his brain exhibited “small vessel vasculopathy ... cerebral atrophy, [with prominent] ventricle and subarachnoid spaces”, i.e. “ischaemic microvascular changes”.

114. Such “brain shrinkage” affected his capacity to make appropriate judgments, and/or behave appropriately. His eBay “compulsion” could be associated with poor impulse control, associated, in turn, with such organic brain abnormality.

115. Dr Roberts raised the spectre of vascular dementia, and opined that the defendant’s cognitive deficit was reflected in the defendant’s poor management of the disorganised chaos on his land. However, on the other hand, he observed, in cross-examination (T29.9.16, p74, LL49 – 50), that the defendant “doesn't suffer from cognitive impairment at present. He suffers from behavioural consequences of brain damages (sic?)”.

116. As his treating psychiatrist, Dr Roberts preferred (p77, LL40 – 44) to deal with the hypertension and alcohol excess, rather than try to treat the cerebral disease process. He added (p79, LL6 – 8):

In my opinion, Mr Imaeda's pathology resides in the areas of the brain which are not intimately involved with cognition but are intimately involved with behaviour and self control and executive function.

(See also Tp79, LL40 – 42.)

117. On the other hand, Dr Skinner, briefed by the prosecutor, found that the defendant performed well on a dementia screening test.

118. She thought Dr Roberts’s adverse physical brain findings were “moderate” and “mild”. In her opinion, the defendant had no, “not even mild”, cognitive dysfunction, other than might be related to age, and/or his hypertension and general health, and that he showed a high level of functioning.

119. The doctors’ joint report fairly summarised their areas of agreement and disagreement:

120. In the joint report, Dr Skinner affirmed her view (Exhibit P10, p4) that:

... there is no evidence of a clinical state and does not consider that there is any evidence of dementia or cognitive dysfunction.

121. Dr Roberts remained of the view that:

... Mr Imaeda’s behaviour in regard to the conduct of his business, his bizarre hoarding and his failure to engage in appropriate processes for obtaining permission to utilise his property in the manner demonstrated represented a significant departure from behaviour expected in a person whom I understand had previously run a substantial business in an appropriate manner.

122. The prosecutor, relying on the decision of the Court of Criminal Appeal in Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114, attacked Dr Roberts’s evidence (see T29.9.16, p99, L3 – p100, L29) on the basis that it relied upon “assumed, but unproven, facts”. I accept that submission.

123. The Court had the opportunity to see the two doctors explain and defend their findings and opinions in the witness box, under searching cross-examination, and I found Dr Skinner by far the more convincing witness.

124. I, therefore, conclude that her evidence, and the submissions of the prosecutor, regarding the defendant’s mental state at the time of committing the offences, are to be preferred.

125. I find that the defendant’s cerebral condition did not contribute in any significant way to the commission of these offences. Whether his brain symptoms are reflected in his cognitive functioning, and/or his impulse control, I am satisfied that he understood his actions, could foresee the risks involved, was in control of the two relevant uses of the subject land, and was aware of practical measures available to him to mitigate harm (Plath, [60] above).

126. The defendant has failed to discharge his onus on those matters.

127. Therefore, there is no basis for reducing any finding of moral culpability, or for reducing the general deterrence element of any sentence to be imposed.

128. The conduct for which the defendant is to be sentenced was planned and prosecuted over a long period of time, and involved some complexity, and he has shown no contrition (Plath, [62] above).

129. In the search for even-handedness, and consistency, in sentencing, neither counsel nor the Court could find a case perfectly comparable to the present.

130. In Doueihi, for example, there was an intention to deceive, by a man the Court found well knew what the law required of him as a developer, but Pain J found no actual harm. In The Council of the Municipality of Kiama v Gerringong Developments Pty Limited [2007] NSWLEC 257, unauthorised development works continued in the face of a “stop work” order, but the only harm was really that done to the legislative regime (consent was subsequently granted and no alteration was required to the works – see [21]). See also Willoughby City Council v Livbuild Pty Ltd [2015] NSWLEC 34.

131. The present case on development and use of accommodation, without consent, is clearly far more objectively serious than either Doueihi or Kiama.

132. The prohibited (storage) use case is less objectively serious than, for example, Liverpool City Council v Maller Holdings Pty Ltd (No 2) [2015] NSWLEC 48, which involved serious environmental harm over about two years, and “a profound, adverse effect on a vulnerable, elderly woman” ([25]), putting the offence “at the high to very high end of the spectrum”, deserving of a fine of $500,000.

Conclusion

133. The defendant ought be convicted of both offences.

134. No submissions having been made in respect of the defendant’s means to pay appropriate fines (c.f. Cumberland Council v Badaoui Habib [2017] NSWLEC 18, at [52]), the above considerations lead me to fines of $250,000 (accommodation) and $100,000 (storage).

135. Both fines are to be reduced by one-third, for the pleas and co-operation, and then further moderated by 10%, under the principle of “totality”, resulting in “rounded” fines of $150,000 and $60,000, respectively.

Orders

136. The Court makes the following orders:

In matter 2016/154511 (formerly 2015/50186):

1. The Defendant is convicted of the offence charged in the summons.

2. The Defendant is ordered to pay a fine in the sum of $150,000.

In mater 2016/154510 (formerly 2015/50185):

3. The Defendant is convicted of the offence charged in the summons.

4. The Defendant is ordered to pay a fine in the sum of $60,000.

In both matters taken together:

5. The Defendant is ordered to pay the Prosecutor’s costs in the agreed sum of $71,000.

6. All exhibits may be returned, except Exhibit P1 (the Statement of Agreed Facts).

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Decision last updated: 10 March 2017