Willoughby City Council v Revelas
[2004] NSWLEC 138
•04/08/2004
Reported Decision: 140 LGERA 349
Land and Environment Court
of New South Wales
CITATION: Willoughby City Council v Revelas [2004] NSWLEC 138 PARTIES: PROSECUTOR:
DEFENDANT:
Willoughby City Council
RevelasFILE NUMBER(S): 50051 of 2003 CORAM: Bignold J KEY ISSUES: Environmental Offences :- carrying out development without development consent-plea of guilty-mitigating circumstances-application for discharge. LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 125
Crimes (Sentencing Procedure) Act 1999, ss 10 and 21ACASES CITED: Mosman Municipal Council v Menai Excavations Pty Limited (2002) 122 LGERA 89;
Postiglione v The Queen (1997) 189 CLR 295;
R v Olbrich (1999) 199 CLR 270;
R v Paris (2001) NSWCCA 83;
Thorneloe v Filipowski (2001) 52 NSWLR 60;
Warringah Council v McNamee (2003) NSWLEC 28;
Willoughby City Council v P and V Masonry Pty Ltd (2003) NSWLEC 312DATES OF HEARING: 10-11/12/2003 DATE OF JUDGMENT: 04/08/2004 LEGAL REPRESENTATIVES: DEFENDANT:
PROSECUTOR:
Ms G Furness, Barrister
SOLICITORS
Mallesons Stephen Jaques
Mr S Brockwell, Barrister
SOLICITORS
Freehill Hollingdale and Page
JUDGMENT:
IN THE LAND AND Matter No
. . 50051 of 2003
ENVIRONMENT COURT Coram
: Bignold J
OF NEW SOUTH WALES
8 April 2004
WILLOUGHBY CITY COUNCIL
Prosecutor
v
CHARALAMBOS REVELAS
Defendant
JUDGMENT
INTRODUCTION
1. The Defendant has pleaded guilty to a charge that he did between 1 December 2002 and 12 May 2003 commit an offence against the Environmental Planning and Assessment Act 1979 (the EP&A Act) s 125 in that he did carry out development without first having obtained development consent in circumstances where pursuant to s 76A(1)(a) of that Act and cl 14C(2) of the Willoughby Local Environmental Plan 1995 (the LEP) that development could not be carried out without development consent first having been obtained and being in force under that Act.
2. According to the particulars endorsed upon the Summons, the relevant development comprises the erection of a number of sandstone retaining walls (and the resultant terracing of land) on the Defendant’s property known as No 1 The Tor Walk, Castlecrag (the development site) which has a water frontage to Middle Harbour. The relevant development is depicted on a plan annexed to the Summons and which forms part of the particulars. A copy of the plan is annexed hereto and marked “A”.
3. The admitted offence is a strict liability offence that is created by the EP&A Act, s 125(1) operating in concert with s 76A(1) of that Act and cll 13 and 14C(2) of the LEP.
4. The EP&A Act, s 125(1) provides as follows:
- Offences against this Act and the regulations
(1) Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Director-General, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act.
5. The EP&A Act, s 76A(1) provides as follows:
- Development that needs consent
(1) 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.
6. Clause 14C of the LEP provides as follows:
- (1) SPECIFIC OBJECTIVE
To accommodate housing such that the scenic qualities and ecological values of environmentally sensitive natural areas, including foreshores and bushland areas, are maintained by protecting the land in the zone from overdevelopment or visually intrusive development, by minimising the impact of hard surfaces on the ecological characteristics of the locality, including nearby and adjoining bushland, and by ensuring that the new development does not dominate the natural scenic qualities of the locality.
(2) DEVELOPMENT WITHIN THE ZONE
- (a) Within the 2(a2) Residential Zone, the following development may be carried out without development consent:
exempt development
(b) Within the 2(a2) Residential Zone, the following development may only be carried out with development consent:
Demolition
Development for the purpose of:
Bed and breakfasts
Drainage
Dual occupancies
Dwelling houses
Home business professional consulting rooms
Roads
Utility installations
7. Clause 14C forms part of the “development control table” which is incorporated in cl 13 of the LEP which provides as follows:
- (1) The specific objectives of each zone are set out in the development control table for each zone under the heading Specific Objective or Specific Objectives.
(2) Except as otherwise provided by this plan, the development control table for each zone specifies the development within each zone that:
- a) may be carried out without development consent including exempt development; or
b) may be carried out only with development consent; or
c) is prohibited.
8. The EP&A Act, s 126(1) prescribes a maximum penalty of 10,000 penalty units ($1.1 million) for the admitted offence.
THE RELEVANT FACTS
9. The prosecution evidence is principally contained in the Statement of Agreed Facts (Exhibit 1) and the affidavits (Exhibits 2 and 8) of Mr Gerard Timbs, the Council’s Senior Development Enforcement Officer, and the affidavit of Mr Gregory Woodhams, the Council’s Environmental Services Director (Exhibit 6).
10. Evidence in mitigation of the admitted offence is principally provided in the affidavit of the Defendant (Exhibit B).
11. The facts according to the Statement of Agreed Facts (Exhibit 1) are as follows:
- 1. These proceedings relate to works carried out at Lot 37 in Deposited Plan 6689 known as 1 The Tor Walk, Castlecrag (the Property ).
The Prosecutor
2. The Prosecutor is Willoughby City Council constituted under section 204 of the Local Government Act 1993 and, accordingly, is vested with the functions referred to in the Act (the Council).
The Property
3. The Property is zoned 2(a2) Residential under the Willoughby Local Environment Plan 1995 (WLEP 1995). Development for the purpose of dwelling house within the 2(a2) Residential zone may only be carried out with development consent.
Dr Revelas
4. At all material times Dr Revelas was the owner of the Property.
5. At all material times Dr Revelas was the principal who engaged, authorised and instructed:
- (a) Bensen & Partners Pty Limited; and
- The Application
6. On 9 October 2000, Bensen & Partners Limited lodged a Development Application (No 2001442) with Willoughby City Council for the construction of a new dwelling house and associated landscaping works on the Property (the Development Application).
The Consent
7. Development Consent No 2001442(D) was granted to Bensen & Partners Limited on 9 March 2001 (the Consent).
8. Condition 3 of the Consent incorporated, in addition to the architectural plans, a Landscaping Plan No 0079 by Jocelyn Ramsay (the Original Landscaping Plan) as well as any other supporting documentation submitted as part of the application.
9. A Statement of Environmental Effects (the SEE)was submitted to Council as part of the Development Application. The SEE contained detailed references to the landscaping works proposed in the Original Landscaping Plan.
The Modified Consent
10. The Consent was the subject of a section 96 application for the erection of an internal lift. Approval No 20010546 to that section 96 application was granted by the Council on 19 June 2001 (the Section 96 Approval).
11. The consent was modified by the rewording of Condition 3 to substitute references to new architectural plans and delete references to old architectural plans. Condition 3 of the Consent, as modified (the Modified Consent), no longer included the reference to the Original Landscaping Plan.
12. Construction certificate No 949/01 relating to the Modified Consent was granted to Bensen & Partners Pty Limited on 27 June 2001.
Sandstone Retaining Walls and Terracing
13. Landscaping works on the property commenced in about mid December 2002. Those works, the erection of sandstone retaining walls and terracing at the rear of the Property, were carried out pursuant to the plan which is annexed to the Prosecutor’s summons (the Summons Landscaping Plan). Part of the works shown in the Summons Landscaping Plan were completed by 12 May 2003 (the Completed Works).
Building Certificate Application
14. On 11 June 2003 Dr Revelas submitted an application for a Building Certificate in respect of the Completed Landscaping Works (the Building Certificate Application).
15. The Council has not determined the Building Certificate Application.
121B Order and Works
16. Landscaping works forming part of the Summons Landscaping Plan but which had not been commenced by 12 May 2003 (the Uncommenced Works), were the subject of discussion between Dr Revelas, his architect (Mr George Bensen of Bensen & Partners Pty Limited) and Council officers for a proposed section 96 Application.
17. On 13 August 2003, Dr Revelas, Mr George Bensen and various Council officers met on the Property. Mr Bensen proposed to Council officers various changes to the Completed Works and to the Uncommenced Works. These were shown on a new landscaping plan (the New Landscaping Plan).
18. On 19 September 2003, Council issued an Order under section 121B of the Local Government Act (the 121B Order), in accordance with section 121K, requiring landscaping works to be carried out in accordance with the New Landscaping Plan, the landscaping specifications contained in the Original Landscaping Plan and a revised planting schedule prepared by Helen Young for Dr Revelas.
19. Dr Revelas, through his contractors, commenced works in compliance with the 121B Order on 22 September 2003.
12. Annexed hereto and marked “B” is a reduced copy of the material portion of the cross-section plan that was exhibited to Mr Woodham’s affidavit. That plan, which had been prepared by Council employees under Mr Woodham’s supervision and which became Exhibit 7, shows a series of 10 retaining walls stepped up the development site commencing with the waterside wall at RL 0 m rising to the uppermost wall, the level of which is at RL 21.6 m. The heights of the series of retaining walls are variable ranging from 1 m at the highest position on the development site, to 4.4 m at the lower ends of the slope. The development site is steeply sloping from its road frontage to its water frontage on Middle Harbour. The recently constructed dwelling-house is a stepped development located at the upper sections of the development site with four different levels ranging from RL 23.5 m to RL 35.75 m. Generally speaking, the retaining walls traverse in snake-like fashion the width of the development site. It should be noted that the retaining wall located at mean high water mark and part of the retaining wall closest to the water frontage had not been built at the times specified in the Summons and accordingly they are not encompassed by the charge or by the admitted offence.
13. According to Mr Timb’s affidavit, he attended the development site on 7 May 2003 accompanied by officers of the Waterways Authority who had contacted the Council a few days earlier after making observations of building activity being undertaken on the development site. By that time, the retaining walls, the subject of the present charge had been virtually completed, although the builder, P & V Masonry Pty Ltd, was still working on the site eg moving soil behind the retaining walls. Mr Timbs spoke to Mr Abou-Sleiman (the Principal of P & V Masonry Pty Ltd) pointing out that the retaining walls did not appear to be in accordance with the Council approved landscape plans for the project. Mr Abou-Sleiman informed Mr Timbs that he was carrying out work in accordance with a landscape plan and produced the plan to Mr Timbs. After sighting the plan, Mr Timbs told Mr Abou-Sleiman, in the presence of Dr Revelas (who had in the meantime arrived on the scene after Mr Timbs had commenced his inspection) that the plan was not the Council approved landscape plan. He expressed concern on behalf of the Council and said that there would need to be a meeting at the Council’s offices to discuss the matter.
14. That meeting took place on 2 June 2003, attended by Dr Revelas and a number of his professional advisers. Mr Abou-Sleiman also attended. At the meeting, there was discussion concerning the works that had been carried out and various methods that might be employed “to regularise the works, including amended landscape plans, a building certificate and s 96 application”. Mr Timbs notified Dr Revelas and the persons in attendance that the Council was considering prosecuting for the offences of carrying out the unauthorised works and was also considering whether it would issue a statutory enforcement order requiring the demolition and removal of the unauthorised building work. (In the event, the Council on 19 June 2003 filed in this Court the present Summons and a separate summons charging P&V Masonry Pty Ltd with the same offence as that charged against the present Defendant in respect of the same incident. The hearing of the charge against the builder was concluded on 14 November 2003 when the builder (which had entered a plea of guilty) was convicted of the offence as charged and fined $5,000 and ordered to pay the Prosecutor’s costs (see Willoughby City Council v P and V Masonry Pty Ltd (2003) NSWLEC 312).
15. At that meeting, Dr Revelas’ Architect, Mr Bensen said that it was intended to lodge an application for a building certificate in respect of the unauthorised building works (and such an application was lodged with the Council on 11 June 2003).
16. Mr Timbs enquired whether works were still being carried out on the development site and Mr Abou-Sleiman said that he was working at the water frontage and preparing to erect another sandstone wall. Mr Timbs directed that that work should cease until such time as Dr Revelas had lodged his application with the Council and the Waterways Authority and they had been determined. Mr Abou-Sleiman agreed with Mr Timbs direction. In response to Mr Timbs question, Dr Revelas said that he had moved into the new residence at the end of November 2002 and that P&V Masonry Pty Ltd had commenced the building work on the development site in mid December 2002.
17. Following further discussions between the parties which were held in August 2003, the Council on 19 September 2003 issued Dr Revelas with an order pursuant to the EP&A Act, s 121B requiring him to undertake specified works on the development site within 60 days (Exhibit 2).
18. The required works specified in the Order were as follows:
- 1. Reduce the height and extent of the unauthorised sandstone retaining/garden walls that stand at the rear of the subject property such that the development is carried out in accordance with plans prepared by Bensen and Partners Architecture, numbered – 01/039/20A, 20B, 20C and 21A, 21B amended 20/8/03. Copy attached marked A and B.
2. Carry out landscaping in accordance with Landscape Plan prepared by Helen Young Horticulturist, numbered 01/039/20A, 20B, 20C, amended 11/9/03, together with associated Revised Planting Schedule, amended 18 September 2003. Copy attached marked C and D.
3. Landscaping to be carried out in accordance with Section B and C of Landscape Specifications prepared by Jocelyn Ramsay, dated October 2000, Copy attached marked E.
4. Provide and maintain erosion and sedimentation control devices on the premises whilst the work detailed in items 1, 2, and 3 of the schedule of works is being carried out. The erosion and sediment control devices shall be in accordance with the attached guide from the department of Conservation and Land Management and to the satisfaction of Council.
19. The Order stated the following reasons for giving the order—
- 1. The subject property is zoned Residential A2 – Scenic Protection Zone, under Willoughby Local Environmental Plan (LEP) 1995. The current extent of the unauthorised works does not comply with the specific objectives of the Scenic Protection Zone.
2. The unauthorised works have been carried out without the prior Development Consent of Council in a case where the prior Development Consent is required.
3. The unauthorised works have been carried out without a prior Construction Certificate in a case where a prior Construction Certificate is required.
4. Development has not been carried out in accordance with Development Consent No. 20001442(D).
5. The current extent of the unauthorised works has an adverse impact on the Middle harbour foreshore area.
6. The current extent of the unauthorised works dominates and does not complement the natural scenic qualities of the locality.
7. It is not in the public interest that the current extent of the unauthorised works is allowed to remain.
20. Under cross-examination, Mr Timbs marked a copy of the plan that had been annexed to the Summons in order to depict (i) the retaining walls shown on that plan that were not in existence on 7 May 2003 (when he first inspected the subject property); (ii) the retaining walls the heights of which were required to be reduced by the s 121B Order; and (iii) the retaining wall, the height of which was required to be increased by the s 121B Order. The marked plan became Exhibit A. Mr Timbs agreed that the other retaining walls shown on that plan that had not been marked by him on the copy had been permitted to remain on the subject property in their existing state. In that context, Mr Timbs also conceded that in his affidavit in reply (Exhibit 8), he had unintentionally overstated (he had stated that effect graphically by superimposing hatching on relevant photographs showing the relevant retaining walls) the extent of the required height reductions of the relevant retaining walls. Generally speaking, the required height reductions involved the removal of four courses of sandstone blocks.
21. Under cross-examination, he was asked whether he agreed that it was the Defendant and his advisors who had been the driving force for what ultimately became the adopted solution of the Council issuing the s 121B Order. He said that he had issued the s 121B Order upon the basis that all of the relevant parties had agreed that it was “the best way of resolving the matter”.
22. In re-examination, Mr Timbs opined that the majority of the retaining walls that had been erected on the development site were required by the s 121B Order to be reduced in height. This accords with his opinion expressed in his affidavit in reply (Exhibit 8) that the changes to the retaining walls proposed by Dr Revelas and Mr Bensen during the discussions with Mr Timbs in August 2003 involved “a substantial reduction in the height of the existing retaining walls” (par 3) and that the s 121B Order “required a substantial reduction in the height of the retaining walls…..” (par 5). In his affidavit in reply, Mr Timbs had expressed the following opinion (par 6):
- Even though I am of the opinion that compliance with the Order will minimise the impact of the unauthorised works, I would not have recommended approval of an application for the resultant development had a development application been lodged at first instance.
23. The Defendant’s affidavit sworn 5 November 2003 (Exhibit B) upon which the Defendant was not cross-examined deposes to the following facts—
(i) the Defendant purchased the subject property in June 1999 some six months prior to his immigration to Australia from South Africa;
(ii) prior to June 2000 the Defendant engaged Bensen and Partners Ltd, Architects, to design a house for the Defendant and his family to be erected on the subject property;
(iii) under the contract, the Architect (Bensen) carried the additional responsibility of being the Project Manager for the development;
(iv) Bensen lodged with the Council the necessary development application for the new dwelling, including a statement of environmental effects which incorporated a landscaping plan prepared by Jocelyn Ramsay who had been commissioned by Bensen;
(v) in March 2001, the Council granted development consent;
(vi) in June 2001, the Council approved a modification application which unbeknown to the Defendant had the effect of removing from the originally approved development the Jocelyn Ramsay landscaping plan;
(vii) upon the development site being cleared of overgrowth in July 2002, it became apparent to the Defendant that the Jocelyn Ramsay landscaping plan was inadequate because it had not been based upon a detailed appreciation of the terrain of the development site including the existence of original sandstone walls and steps etc; and
(viii) in particular, after the existing cottage (located down the slope towards the waterfront) had been demolished in July 2002, the clearing of overgrowth had revealed that a retaining wall some 4 m high behind the site of the demolished cottage was unstable and required replacement.
24. Thereafter, the Defendant’s affidavit proceeds to depose to the Defendant’s understanding and belief, intentions and actions concerning the carrying out of the landscaping works on the development site including the erection of the retaining walls and terracing carried out by P & V Masonry Pty Ltd. Rather than summarise their content, it is fairer to the Defendant because of the particular reliance placed on them in the Defence submissions if I recite the entirety of these passages in the Affidavit:-
- 15. My intention with respect to the landscaping works was simply to replace the deteriorating drystone walls already present on the property with sandstone walls which would be constructed on proper foundations and be generally more stable. My intention was always to put in native vegetation to help soften and screen the walls. I was also told that the sandstone would mellow and blend with the environment over time. My intention was to have a backyard where the walls were safe and stable, and in harmony with the bushland setting of the surrounding harbour environment.
16. I was of the belief that the consent for the Original Landscaping Plan was sufficient to cover the works actually undertaken on the property. Despite the differences between the Original Landscaping Plan and the actual works undertaken, I did not believe, nor was I advised, that I required any further approval from council as they still comprised retaining walls and planting, but in a different configuration. Furthermore, these works were internal to my Property not along the boundary with any other property.
17. My belief expressed in the above paragraph was in part due to my knowledge of the masonry works carried out by P&V Masonry Pty Limited on the property immediately adjoining mine to the south, No. 3 the Tor Walk. Whilst I had observed Mr Abou-Sleiman of P&V Masonry Pty Limited constructing extensive sandstone retaining walls and terracing on that property, I had not been notified by the Council of any application for the owner of No. 3 to have these works constructed. I did, however, receive, in relation to No. 3, a notification for a proposed Kayak shed. This notification was after the owners of No. 3 had completed their sandstone walls, but before I commenced mine. As I had only been resident in Australia for less than 2 years at the time, I didn’t expect to receive any notification, because I didn’t understand that my neighbour at No. 3 would have needed to formally apply to the local council for any approval.
18. Landscaping work on the property commenced in about mid December 2002, but was not complete by 7 May 2003 and 12 May 2003 when Council officers inspected the property. At this time, the property was being prepared for the planting identified in the planting schedule prepared by Helen Young, but no more work was carried out on the site until after Council issued a section 121B Order on 19 September 2003.
25. The remainder of the Defendant’s affidavit deposes to his willing and active participation (with his professional consultants including Mr Bensen) in discussions with Council employees concerning what action needed to be taken by him to satisfy the Council’s requirements in respect of the landscaping works undertaken on the development site which discussions culminated in the Council issuing the s 121B Order on 19 September 2003. (These discussions continued even after the Defendant had been served with the Summons on 24 June 2003 charging the present offence prior to which event he had been under the impression that the negotiations with the Council would have amicably resolved the matter).
26. Immediately following receipt of the s 121B Order, the Defendant arranged for his contractors to immediately undertake the works required to be done by the Order, including the required reductions in the heights of the sandstone retaining walls which latter works were completed within five days of receipt of the Order.
27. Some additional findings of fact will be necessary in respect of some disputed issues raised in the competing submissions on sentence, which I now proceed to consider.
THE PARTIES’ COMPETING SUBMISSIONS ON SENTENCE
28. The Prosecutor submitted that this was a case where the recording of a conviction and the imposition of a fine were called for, whereas the Defence submission was that the Court should exercise in favour of the Defendant the discretion, that is conferred by s 10(1) of the Crimes (Sentencing Procedure) Act 1999 not to convict.
29. In support of a sentence involving a conviction and a fine, Prosecuting Counsel made the following submissions—
1. It has been consistently held in this Court that an offence against s 125 of the Act is a serious one (eg Warringah Council v McNamee (2003) NSWLEC 28, Willoughby City Council v P&V Masonry Pty Ltd (2003) NSWLEC 312).
2. The planning system would be rendered ineffective if development was carried out without consent. (Mosman Municipal Council v Menai Excavations Pty Limited (2002) 122 LGERA 89).
3. The unauthorized work carried out was very extensive. Ten tiered substantial sandstone retaining walls varying in height from 1 m to 4.4 above ground level were constructed, with the structures having a very prominent exposure to view from Middle Harbour.
4. The retaining walls were constructed on a property within a Scenic Protection Zone. The specific objective of the Zone is to “accommodate housing such that the scenic qualities and ecological values of environmentally sensitive natural areas, including foreshore areas…are maintained by protecting the land from….visually intrusive development….and by ensuring that the new development does not dominate the natural scenic qualities of the locality”.
5. The Jocelyn Ramsay landscaping plan (being the Council approved landscape plan) notes the existence of retaining walls in two locations only on the development site. The actual works undertaken by P & V Masonry Pty Ltd on behalf of the Defendant were substantial and extensive works which cannot reasonably be described (as the Defendant in his affidavit had described them) as a “different configuration” of the landscaping works depicted in the Jocelyn Ramsay landscape plan.
6. The existence of the s. 121B order does not support an inference that there is no or minimal adverse environmental impact or that the offence was not serious. (Willoughby City Council v P and V Masonry Pty Limited (2003) NSWLEC 312).
7. In Willoughby City Council v P and V Masonry Pty Limited (2003) NSWLEC 312 it was found that an offence arising from the same set of circumstances, when committed by the building contractor was a moderately serious offence.
8. Section 10 of the Crimes (Sentencing Procedure) Act 1999 should not be applied for the following reasons:
a. the seriousness of the offence;
b. the offence is one of strict liability and it is unusual for such offences to have the benefit of s.10 (eg Menai Excavations);
c. the belief of the Defendant that the landscaping work undertaken was merely a different configuration of the approved Joselyn Ramsay landscape plan was objectively an unreasonable belief;
d. the stated LEP objectives for Scenic Protection Zone in which the work was carried out;
e. the extent of the work carried out; and
f. the failure to install any sediment or erosion control measures and the consequent potential for environmental harm.
30. The Defence submission seeking either the dismissal of the charge or the discharge of the Defendant pursuant to the Crimes (Sentencing Procedure) Act 1999, s 10 was predicated upon the Court making the following findings which Defence Counsel urged upon the Court—
(i) the committed offence was not objectively considered a serious offence because of the solution in respect of the unlawfully erected retaining walls, that was ultimately agreed upon and adopted by the parties, namely the issue of the s 121B Order;
(ii) the Defendant was not subjectively culpable in the commission of the offence because of his honest belief that the Council’s grant of the original development consent (which extended to the Jocelyn Ramsay landscape plan) was sufficient to cover the landscaping works that were actually undertaken on the development site by P & V Masonry Pty Ltd on behalf of, and at the direction of, the Defendant; and
(iii) the existence of mitigating factors in the present case including those matters that are made relevant by ss 21A(3) and 22 of the Crimes (Sentencing Procedure) Act 1999.
31. These several matters in mitigation relied upon by the Defendant are substantially disputed by the Prosecutor. In adjudicating on these disputed issues, it is to be recalled that it is for the Defendant to prove on the balance of probabilities the existence of the mitigating matters: see R v Olbrich (1999) 199 CLR 270 at 281 where the joint judgment of the High Court adopted the following statement of principle:
- …..a sentencing judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other land, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.
32. It is convenient if I separately consider these three disputed mitigation issues.
(i) the effect of the issue of the s 121B Order on the proper evaluation of the objective seriousness of the offence
33. This issue was extensively considered in my reasons for judgment in Willoughby City Council v P&V Masonry Pty Ltd in response to the defence submission that the admitted offence was not serious for a number of reasons which included the following reason (which is to the same effect as the submission made on behalf of the present Defendant):
- (iii) Although the works undertaken by the Defendant required development consent, the subsequent enforcement action taken by the Council in issuing Dr Revelas with the Order pursuant to s 121B of the EP&A Act , requiring, not the demolition of the retaining walls (except for the sea wall which had been erected beyond the waterfront boundary of the development site) but only the modification of the height and extent of some of those walls and the undertaking of landscaping treatment of the retained levels, indicated that the works undertaken by the Defendant were of such a character as to be permitted to remain on the development site albeit only in slightly modified form. This outcome suggested that the impact of the unauthorised building work undertaken by the Defendant was environmentally acceptable, or at least was not environmentally unacceptable.
34. Although there was considerable evidence concerning to the issue of the s 121B order given in the present case which was not given in the earlier case (and to the consideration of which evidence I must presently return), much of what I said in that case concerning the relationship between the charge of the offence under s 125 of the EP&A Act (which is the same offence charged in the present case) and the s 121B order is relevant to the issue raised by the Defendant in this case and bears repetition. The relevant passages are at pars 39 to 48 inclusive and are as follows:
- 39. A consideration of the objective seriousness of the admitted offence must logically start with the obvious fact that the legislature in prescribing a maximum penalty of $1.1 million for offences against the EP&A Act , s 125 has unequivocally declared that such offences are to be regarded as serious offences. It may be accepted (as I noted in Warringah Council v McNamee (2003) NSWLEC 28) that the offences created by s 125 cover a very wide spectrum of conduct ranging from the not too serious to the obviously serious, and that the essential character of the admitted offence, namely carrying out development without the requisite development consent, itself covers a wide spectrum of activity ranging from the carrying out of minor development to the carrying out of major development.
40. In my judgment, the nature and extent of the development carried out by the Defendant cannot be regarded as minor development. It involves a series of substantial sandstone retaining walls covering a large area of the development site with a very prominent exposure to view from Middle Harbour.
41. Notwithstanding this fact, and by way of qualification to it, the Defendant has placed considerable reliance upon the fact that the civil enforcement action taken by the Council against Dr Revelas the owner of the property and the buildings erected on it) by issuing the Order under the EP&A Act, s 121B requiring him to modify, but not to demolish, the unauthorised sandstone retaining walls. From this fact, the Court is invited to infer that the commission of the offence did not create any adverse environmental impact or consequence, and that this aspect of the offence demonstrates or at least indicates that the offence was not a serious offence. The Defence submission (properly in my opinion) did not go so far as to suggest that the issue of the s 121B Order was an indication that the Council would probably have granted development consent to the modified retaining walls if an application for that development had been made. But even if the finding had been available that development consent would probably have been granted to an application to building the retaining walls in their modified form (as reflected in the requirements of the Council's s 121B Order served on Dr Revelas in the present case and on the evidence I am not prepared to so find, on the balance of probabilities, the impact of that finding on the proper evaluation of the seriousness of the admitted offence would not escape or neutralise the impact on that question of the following two facts-
- (i) the admitted offence comprises the carrying out of the original , ( and not the modified ) development; and
(ii) the essence of the admitted offence is the prohibition on the carrying out of development unless the requisite consent has been obtained and is in force.
- The system of planning control would become somewhat ineffective if persons were to carry out development, including demolition work without ensuring that necessary development consent has been obtained
44. Nor do those provisions modify the essential character of an offence against s 125 involving a contravention of the EP&A Act, s 76A(1). Indeed, even if a building certificate is issued in respect of an unlawful development, the statutory immunities conferred by s 149E expressly preserve the liability of a person to be prosecuted for an offence against s 125 by virtue of the failure to obtain the requisite development consent: see s 149E(3)(b).
45. The facts of the present case establish that Dr Revelas' application for a building certificate in respect of the unlawful development carried out by the Defendant has not been determined by the Council but that while that application was pending, the Council issued Dr Revelas with the s 121B Order requiring him, inter alia, to modify the height and extent of some of the sandstone retaining walls. The facts of the case indicate that the Defendant has, on behalf of Dr Revelas, recently been engaged on the building work involved in the required modification of some of the retaining walls.
46. It is of some significance that the EP&A Act, contains no express provision concerning the legal relationship between civil enforcement action by way of statutory enforcement order under s 121B in relation to a breach of the Act (such as to constitute an offence against s 125) and summary criminal enforcement action in respect of that breach. This position is to be contrasted with the express provisions contained in s 127(7) and (8) in respect of civil enforcement action instituted pursuant to s 123 of the Act (as to which see Willoughby City Council v Bechara (2003) 124 LGERA 416 at 418/419). Sections 127(7) and (8) provide as follows:
- (7) A person shall not be convicted of an offence against this Act or the regulations where the matter constituting the offence is, at the date upon which the conviction would, but for this subsection, be made:
(a) the subject of proceedings under section 123, which proceedings have not been concluded, or
(b) the subject of an order made under section 124.
(8) Nothing in subsection (7) precludes a conviction being made where the proceedings referred to in paragraph (a) of that subsection are concluded otherwise than by the making of an order under section 124
48. Finally, in relation to objective factors going to the proper appraisal of the seriousness of the admitted offence, it should be noted that there is abundant existing judicial authority that the probability that development consent would have been granted, if applied for, in respect of any development unlawfully carried out, does not derogate from the objective seriousness of the offence of carrying out development without the requisite development consent-see Cooper v Coffs Harbour Council (1997) 97LGERA 125 at 143, Ryde City Council v Calleiga (1998) 99 LGERA 360 at 365, Canterbury City Council v Saad (2001) 112 LGERA 429
35. On the basis of the evidence adduced in the present case, Defence Counsel submitted that the Court would find on the balance of probabilities that the Council would have granted development consent to the retaining walls (as modified by the carrying out of the works required by the s 121B Order) if a development application for such development had been made by the Defendant.
36. However, an immediate difficulty confronting this submission is the fact that the relevant evidence includes Mr Timb’s evidence which was not rebutted by any other evidence in the Defence case or otherwise seriously challenged that despite his opinion that compliance with the s 121B Order would minimize the impact of the unauthorized works he “would not have recommended approval of an application for the resultant development had a development application been lodged at first instance”. Of course, as Defence Counsel properly submitted, that opinion is not conclusive of how the Council would have determined such an application, but it remained an opinion that was not rebutted by other evidence, and my acceptance of it inevitably means that the Defendant has not proved the fact that the Council would have granted development consent to such an application.
37. The evidence given in the Defendant’s affidavit does establish that once the Council had informed him of the unlawful works that had been undertaken on the development site by P&V Masonry Pty Ltd on behalf of the Defendant the Defendant actively co-operated with the Council in seeking a solution to the existing problem that he had created and when that solution materialized in the form of the s 121B Order, the Defendant conscientiously and efficiently caused the required rectification works and associated landscaping works to be undertaken to achieve the desired outcome. It also establishes that the Defendant readily accepted responsibility for the unlawful works, expressed his contrition for what had happened, confessed his ignorance of the necessity to obtain a Council’s approval and conscientiously committed himself to resolving the matter (vide Exhibit E being par 7 of another affidavit of Mr Timbs, sworn on 1 October 2003 which was tendered in the Defence case). But none of this evidence satisfies me that the admitted offence objectively considered was otherwise than a serious offence as I had found to be the case in my reasons for judgment in the P&V Masonry prosecution.
38. The most favourable inference for the Defendant that can be drawn from the fact of the issue of the s 121B Order is that the Council did not require the demolition of the entirety of the unlawfully erected retaining walls and in permitting the modified structures to remain in existence the Council may be taken to have accepted that outcome as a modified fait accompli which adequately mitigated the adverse environmental impacts of the unlawfully erected retaining walls in their original and unmodified state.
39. For the foregoing reasons, I find that the Defendant has not discharged the onus of proof that it bears on this disputed issue in support of his submission that the offence was objectively not a serious offence.
(ii) The nature and extent of the Defendant’s subjective culpability in the commission of the offence
40. Here, the Defence submission is based upon the evidence of the Defendant contained in paragraphs 15, 16, 17 and 18 of his affidavit (Exhibit B) which I have earlier recited in paragraph 24.
41. In particular, Defence Counsel submitted that the Court must find that the Defendant was honestly mistaken in his belief that the Council’s original development consent which included the Joselyn Ramsay landscape plan “was sufficient to cover the works actually undertaken on the property” (par 16 of his affidavit).
42. Although not challenging this submission and the relevant evidence of the Defendant, Prosecuting Counsel submitted that the Defendant’s mistaken belief could not be held to be reasonable by reference to an objective standard, especially having regard to the obvious and radical differences between what the Jocelyn Ramsay landscape plan depicted in respect of retaining walls on the development site (existing or proposed) and the substantial and extensive retaining walls that were actually built on the site by P&V Masonry Pty Ltd which are shown on the plan annexed to the Summons (a copy of which is annexure “A” hereto).
43. Paragraph 16 of the Defendant’s affidavit concedes that the Defendant was aware of these “differences” (which in my judgment can also properly be said to be radically and substantially different by virtue of a simple and direct comparison of the contents of the different plans), but despite that awareness, he did not believe any further approval was required from the Council for the erection of the retaining walls that were actually built, apparently because the Defendant considered them to “still comprise retaining walls and planting, but in a different configuration”. No doubt as a vague generic description of landscaping works that description might fairly be made, but that is where the comparison starts and ends because the details of the retaining walls depicted in the two sets of plans are radically and obviously different in both nature and scale.
44. In paragraph 16 of his affidavit, the Defendant says that he “did not believe, nor was I advised, that I required further approval from Council”.
45. In paragraph 17 of his Affidavit, the Defendant states that his mistaken beliefs “were in part due to my knowledge of the extensive masonry works (erecting retaining walls and terracing) carried out by P&V Masonry Pty Ltd on the immediately adjoining property at No 3 the Tor Walk” in circumstances where the Defendant had not received any notice of any application for those works to be undertaken on the neighbouring property and he (the Defendant) did not understand that his neighbour needed to apply for any Council approval in undertaking those works.
46. In my judgment, the Defendant’s evidence concerning his mistaken belief that he did not require further Council approval or consent for the landscaping works that were carried out on the development site on his behalf by P&V Masonry Pty Ltd does not support a finding that his mistaken belief was objectively reasonable.
47. Indeed, on the basis of the Defendant’s own evidence, I would find, on the balance of probabilities, that the Defendant’s mistaken belief was not an objectively reasonable belief. In this respect, it is to be noted that the Defendant’s affidavit evidence establishes that (i) he knew that the Council’s original development consent extended to the Jocelyn Ramsay landscape plan; (ii) in July 2002 he realized that that landscape plan was “inadequate” (par 11) and “further landscaping plans would be necessary” (par 11); and (iii) he knew that there were differences between what the Jocelyn Ramsay landscape plan had depicted in respect of retaining walls and what works that he instructed P&V Masonry Pty Ltd to undertake on the development site (par 16).
48. In these circumstances, his belief that no further Council approval was required in respect of the extensive and substantial retaining walls that he instructed P&V Masonry Pty Ltd to construct on the subject land because those works, like the works depicted in the concededly “inadequate” Jocelyn Ramsay landscape plan, “comprised retaining walls and planting but in a different configuration” was plainly unreasonable by reference to the required objective standard of reasonableness because even the most simple comparison of the relevant contents of the different plans would have revealed obvious and radical differences in the nature and scale of the retaining walls.
49. In par 16, the Defendant states that he was “not advised” that he required further Council approval. But significantly he does not say that he sought any advice from Mr Bensen, the Project Manager and there is no evidence from Mr Bensen on this matter, either of his being relevantly consulted or of his giving any relevance advice. Accordingly, the evidence is unpersuasive, and to the extent that in some vague and undefined manner the Defendant’s statement that he “was not advised” seeks to shield himself behind his professional advisors, I find that the evidence does not provide any reasonable basis or foundation for the Defendant’s mistaken belief.
50. Similarly, I am unpersuaded that the Defendant’s “partial” reliance for his mistaken belief upon what he observed or thought concerning the fact that the retaining walls were erected by P&V Masonry Pty Ltd on the adjoining land at No 3 the Tor Walk, provides any reasonable foundation or basis for his belief that he did not require further Council approval for the erection of the retaining walls that were built on the subject land by P&V Masonry Pty Ltd on behalf of the Defendant. Again, there is no evidence that he enquired either of his next door neighbours or the contractor concerning the question of whether the works had required Council consent.
51. The result is that the Defendant’s mistaken belief, though honestly held, was not a reasonable belief by any objective standard.
52. My finding that the Defendant’s mistaken belief was not founded on any objectively reasonable basis (even though honestly held by him, and there is no challenge by the Prosecutor that this was the case) inevitably impacts upon proper assessment of the disputed issue of the nature and degree of the Defendant’s subjective culpability in the commission of the admitted offence.
53. But there is another important aspect of the Defendant’s mistaken belief that, though not adverted to in the competing submissions, requires consideration at this point. It is that the Defendant’s mistaken belief was not a mistake of fact, but was a mistake of law, and as such it attracts the general principle of the criminal law that ignorance of the law is no excuse.
54. The relevant mistake of law that is disclosed by the Defendant’s evidence was (i) that development consent was not required for the erection of the series of retaining walls on the development site; or (ii) that that development consent was not required because of the existence of the Council’s original development consent of the Jocelyn Ramsay landscape plan; or (iii) that the existence of that original development consent was legally sufficient to sanction the construction of the series of retaining walls constructed on the development site by P&V Masonry Pty Ltd on behalf of the Defendant. Properly analysed, all three mistakes are mistakes of law or ignorance of the relevant law.
55. The defence of honest and reasonable mistake only applies to a mistake of fact, not of law: see State Rail Authority of NSW v. Hunter Water Board (1992) 28NSWLR 721 at 724; Von Lieven v. Stewart (1990) 21NSWLR 52 although I readily accept that it is not always an easy matter to distinguish between a mistake of fact and a mistake of law: see Thomas v. The King (1937) 59CLR 279; Iannella v. French (1968) 119CLR 84.
56. In discussing the distinction, Handley JA in Von Lieven at 66 and 67 said:
- It is beyond argument that a reasonable but mistaken belief can only furnish an excuse where the mistake is one of fact: see He Kaw The v The Queen (at 532-533, 550-551, 572-574, 576 and 593). Otherwise the general principle applies that ignorance of the law is no excuse: see R v Turnbull (1943) 44 SR (NSW) 108 at 109; 61 WN (NSW) 70 at 71 per Jordan CJ.
Accordingly, a belief or assumption that the acts in question are lawful either because they are unregulated, or because the requirements of the law have been satisfied, cannot excuse in cases such as this. Nor can inadvertence excuse either. The only excuse is the existence of an actual or positive belief, based on reasonable grounds, in the existence of some fact or facts which, if true, would make the act in question innocent: see Proudman v Dayman (1941) 67CLR 536 at 541 and He Kaw The v The Queen (at 575).
57. The manner in which his Honour applies the distinction is demonstrated in the following passage at 67:
- …His Honour’s second declaration was as follows:
- A mistake as to whether or not there was an issue to the public, offer to the public for subscription or purchase, or an invitation to the public to subscribe for or purchase a prescribed interest within the meaning of s.5(1) of the Companies (NSW) Code is a mistake of law.’
58. In my judgment, and for the reasons I have given, the mistaken belief honestly held by the Defendant that he did not require Council approval for the series of retaining walls erected on his behalf on the subject land by P&V Masonry Pty Ltd is clearly a mistake of law and not a mistake of fact.
59. Moreover, the fact that the Defendant has not sought to raise the defence of honest and reasonable mistake of fact means that he must face the consequences of the strict liability offence created by the EP&A Act, s 125 that he has admitted committing. It has been said that “the true targets (of strict liability offences) are conventionally conceived to be those who are, at minimum, guilty of objective carelessness in the conduct of their affairs, with the result, that a proscribed act is committed by themselves”: “Criminal Law” by P Gillies 4th Ed at p 89.
60. These considerations do not mean that in sentencing for strict liability offences, the subjective culpability of the Defendant is to be ignored in the overall evaluation of the gravity of the offence, but they do give substantive colour to the nature of that culpability. In particular, the Defendant, though honestly mistaken, was clearly objectively careless in acting upon his mistaken belief that Council consent was not required for the retaining walls.
61. The Defendant has not satisfied me that I should find his subjective culpability to be either slight or minor or excusable. At the very least, his culpability is that of objective carelessness to make proper enquiries of the Council, his own professional advisors including Mr Bensen and also of the building contractor P&V Masonry Pty Ltd which he instructed to construct on the development site the series of retaining walls, which both in fact and in law required the prior grant of development consent from the Council before they were constructed.
62. In particular, there is nothing in the Defendant’s evidence to explain why he did not seek the professional advice of Mr Bensen on the question whether further Council approval was required to the carrying out of works which were radically different in nature and in scale from the works shown in the Jocelyn Ramsay landscape plan. It may be inferred from the evidence (if it is not already directly stated in the Statement of Agreed Facts) that it was the Defendant who provided P&V Masonry Pty Ltd with the plan showing the retaining walls that the builder actually constructed on the development site. In other words, it was the Defendant acting upon his own mistaken belief who commissioned the construction of the retaining walls by P&V Masonry Pty Ltd in accordance with the plan for that work supplied by the Defendant to the builder in circumstances where the Defendant, but not the builder, knew (i) that the plan supplied was not the approved Jocelyn Ramsay landscape plan and (ii) that the plan depicted self evidently different proposals (I would add “radically” different) for the construction of the retaining walls compared with what had been depicted by the Jocelyn Ramsay plan.
63. In drawing comparisons between the obvious differences in respect of the question of the retaining walls between the Council approved Jocelyn Ramsay landscape plan and the plan supplied by the Defendant to P&V Masonry Pty Ltd when commissioning it to build the retaining walls, the fact that reference to the approved Jocelyn Ramsay landscape plan had not been preserved in the modification approval granted by the Council to the original development consent has no material bearing on this case. The modified development consent obviously omitted reference to the Jocelyn Ramsay landscape plan by virtue of some unintentional inadvertence or a clerical slip and there can be no doubt that the approval of the Jocelyn Ramsay landscape plan granted by the original development consent granted by the Council remained legally intact.
64. How then, is the Defendant’s subjective culpability to be assessed as a contributing factor to the overall evaluation of the seriousness of the admitted offence?
65. As the owner of the subject property which was in the course of being extensively developed to provide the Defendant with his family home, the Defendant had the benefit of professional advisors including in particular Mr Bensen who also was acting as Project Manager. For reasons not satisfactorily explained, the Defendant did not obtain the benefit of advice from his professional advisers but acted upon his own belief as to what were the requirements of the EP&A Act in respect of the construction of a substantial and extensive series of sandstone retaining walls by P&V Masonry Pty Ltd.
66. That belief was a mistaken belief which although honestly held by the Defendant, was not held on objectively reasonable grounds.
67. Although he had only resided in Sydney for a few years, as the owner of the development site, he knew that development consent was necessary for the erection of his new dwelling house and he knew that that development consent had approved of the Jocelyn Ramsay landscape plan. He knew that when overgrowth vegetation was removed in the course of developing the development site, and had revealed the nature of the terrain of the development site (including the existence of retaining walls and steps) that the Jocelyn Ramsay landscape plan was inadequate. Although not fully explained in the relevant evidence in this case, it may reasonably be inferred that the Defendant obtained from another professional source the “garden walls and paving plan” proposed for the development site and supplied that plan to P&V Masonry Pty Ltd in commissioning that builder to build the retaining walls in accordance with that plan. (That plan is the same as the plan annexed to the Summons also being annexure “A” to these reasons.)
68. He knew that that plan so supplied to the builder was not the approved Jocelyn Ramsay landscape plan and he knew that the plan so supplied had not been approved by the Council.
69. The Defendant as an orthopaedic surgeon, is obviously a well educated and highly intelligent person.
70. I accept that in so acting, he honestly believed that no further Council approval was required for the plan that he supplied to the builder in commissioning it to build the substantial and extensive series of retaining walls depicted in that plan, but I also have found that his mistaken belief was not objectively reasonable and in truth, was a mistake of law in the nature of ignorance of the law and its requirements, which provides no excuse.
71. The Defendant’s mistaken belief and his ignorance of the requirements by the law would, I am sure have been readily dispelled had he sought professional advice, rather than preferring to act upon his own belief. There is no suggestion in the evidence of any exceptional or pressing circumstances either in the commissioning of the “garden walls and paving plan” or in the commissioning of P&V Masonry Pty Ltd to construct the retaining walls in accordance with that plan, such as may explain why the Defendant acted upon his own belief, rather than upon professional advice that presumably was available to him from Mr Bensen..
72. In evaluating the Defendant’s subjective culpability in the commission of the admitted offence and the effect of that evaluation, when combined with the relevant evaluation of the objective seriousness of the offence, on the required overall evaluation of the gravity of the offence it is useful to consider, by way of comparison, what I held in respect of those matters in the prosecution of P&V Masonry Pty Ltd. Indeed, since the Defendant and the builder are co-offenders in respect of the same offence it is ultimately necessary that in sentencing the Defendant, I give effect to the parity principle which applies to the sentencing of co-offenders: see Postiglione v The Queen (1997) 189 CLR 295.
73. In my judgment in P&V Masonry Pty Ltd I held (at pat 50) that the “defendant, through Mr Abou-Sleiman, honestly believed that the work he undertook on Dr Revelas’ behalf was relevantly approved by the Council”. (I interpose that such a belief unlike the present Defendant’s mistake was relevantly a mistake of fact rather than a mistake of law) but (at par 51) that the mistake could not be regarded as being objectively reasonable and that the mistaken belief “involved some significant want of care, or at least some serious error of judgment on the part of Mr Abou-Sleiman in acting in reliance on the Concept Green Landscape Plan which did not bear any endorsement or annotation of the Council’s approval” (the “Concept Green Landscape Plan” is the same as the plan annexed to the summons in this case.) After considering other matters (not here relevant), I concluded (at par 55) that the builder’s subjective culpability was “not significant albeit it is neither excusable nor condonable” before expressing (at par 56) the ultimate overall evaluation of the gravity of offence as a “moderately serious offence” against the EP&A Act, s 125.
74. My evaluation of the present Defendant’s subjective culpability as being appreciably higher than that of the co-offender is based upon the following factors—
(i) the difference in the nature of the honest mistaken belief held by the co-offenders—the builder’s mistake being a mistake of fact and the present Defendant’s mistake, being one of law (for the reasons I have earlier given);
(ii) the different roles of the co-offenders—the Defendant being the owner of the development site commissioning contractors to carry out the development and the builder being a stonemason contracted to build the retaining walls after the approved dwelling-house had been built;
(iii) the present Defendant commissioned the co-offender to construct the series of retaining walls on the development site in accordance with the plan which he knew had not been approved by the Council (because he mistakenly believed that that approval was not necessary in view of the existing approval of the Jocelyn Ramsay landscape plan) but which the builder honestly but mistakenly believed had been approved by the Council;
(iv) the present Defendant’s mistaken belief could have been readily dispelled if he had chosen to obtain advice from his professional advisor and Project Manager, Mr Bensen, rather than to choose to rely upon his own mistaken belief (albeit an honestly held belief); and
(v) the Defendant on the basis of his own knowledge could have dispelled the co-offender’s mistaken belief by telling it that the plan that the Defendant had supplied to him for the purpose of constructing the retaining walls on the development site had not been approved by the Council (because the Defendant mistakenly believed that that approval was not required).
75. In terms of the comparative nature and degree of carelessness of the co-offenders in the commission of the offence, I find the Defendant’s subjective culpability was appreciably greater than that of the builder, for the reasons I have just given.
76. Of course, by virtue of his honestly held mistaken belief, the Defendant’s subjective culpability must be assessed to be far less than that of a person in a similar position (ie as owner of land being developed) who commissions a contractor to do work in connection with that development which he knows to be work that requires development consent but in respect of which no such development consent has been obtained.
77. Whereas the Defendant’s subjective culpability is far less than that of a person who knowingly and deliberately commissions building work that requires development consent knowing that that consent has not been obtained, his subjective culpability is not significantly different from that of a person who commissions building work to be undertaken in ignorance of the requirements of the law that development consent be obtained before such work is undertaken.
78. When my assessment of the Defendant’s subjective culpability is combined with my assessment of the objective seriousness of the offence, my overall conclusion on the gravity of the offence is that it is appreciably higher than a “moderately serious” offence against the EP&A Act, s 125 that I found to be the case in sentencing the co-offender, P&V Masonry Pty Ltd.
(iii) Mitigating factors referred to in s 21A(3) of the Crimes (Sentencing Procedure) Act 1999
79. The Crimes (Sentencing Procedure) Act 1999, s 21A provides as follows:
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:
(a) the victim was a police officer, emergency services worker, correctional officer, judicial officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim’s occupation,
(b) the offence involved the actual or threatened use of violence,
(c) the offence involved the actual or threatened use of a weapon,
(d) the offender has a record of previous convictions,
(e) the offence was committed in company,
(f) the offence involved gratuitous cruelty,
(g) the injury, emotional harm, loss or damage caused by the offence was substantial,
(h) the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability),
(i) the offence was committed without regard for public safety,
(j) the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence,
(k) the offender abused a position of trust or authority in relation to the victim,
(l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim’s occupation (such as a taxi driver, bank teller or service station attendant),
(m) the offence involved multiple victims or a series of criminal acts,
(n) the offence was part of a planned or organised criminal activity.
- 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,
(c) the offender was provoked by the victim,
(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 offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other manner,
(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),
(l) the degree of pre-trial disclosure by the defence (as provided by section 22A),
(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.
80. It is common ground that there are no relevant “aggravating factors” in the present case, but that there are relevant “mitigating factors” which may be sumarised as follows (where the reference is to the relevant paragraphs in subsection (3)—
(a) the loss or damage by the offence was not substantial—indeed, there was no proof of any environmental damage except for the fact that the retaining walls were constructed without the requisite development consent having been obtained therefor beforehand;
(b) the offence was not part of a planned or organized criminal activity;
(c) the offender does not have any record of previous convictions;
(d) the offender is a person of good character;
(e) the offender is unlikely to re-offend;
(f) the offender has good prospects of rehabilitation;
(g) the offender has shown remorse for the offence by making reparation (ie by willingly applying for a building certificate and thereafter in carrying out the works required by the s 121B Order);
(h) the offender’s entry of a plea of guilty at the earliest opportunity; and
(i) the offender’s assistance to law enforcement authorities (including his early acceptance of responsibility for the offence and his willingness to seek to regularize the unlawful retaining walls).
81. The Prosecutor’s only demur to the Defendant’s reliance upon the abovementioned mitigating factors concerns the absence of proof of the Defendant’s good character. There was no good character evidence given and the Defence submission had been based upon the fact that the Defendant was an orthopaedic surgeon. However, it appears that the Defendant, though qualified and registered as an orthopaedic surgeon in both South Africa and the United Kingdom, has not become a registered medical practitioner in New South Wales.
82. Accordingly, he does not practice as an orthopaedic surgeon in NSW, although he is entitled to practice under the supervision of another surgeon. Rather, he enjoys the status of an instructor of orthopaedic surgeons and is recognized as such by the Australian Medical Association and the Australian College of Surgeons.
83. In my judgment, all of the mitigating factors relied upon by the Defendant have been established by the Defendant including his good character implied by virtue of his practice in South Africa and United Kingdom as a registered medical practitioner.
84. In applying for the dismissal of the charge pursuant to the Crimes (Sentencing Procedure) Act 1999, s 10, Defence Counsel submitted that there has been a general tendency in the decisions of this Court involving sentencing for environmental offences to adopt a too narrow view of the judicial discretion conferred by that section.
85. It is true that there are many decisions in this Court in which the opinion has been expressed that it must be a “rare” or “exceptional” case where an environmental offence is dismissed pursuant to the Crimes (Sentencing Procedure) Act 1999, s 10 (or its legislative antecedent, the Crimes Act, s 556A). However, the existence of such cases does not mean that the relevant judicial discretion has been excluded or ignored.
86. But in any event, the Chief Justice presiding over the Court of Criminal Appeal in Thorneloe v Filipowski (2001) 52 NSWLR 60 while noting that the formulation “a rare case” or equivalent words have been applied a number of times by this Court in relation to environmental offences and also by the Industrial Relations Commission in relation to offences against the Occupational Health and Safety Act has held that such an appreciation of, and such an approach to the relevant judicial discretion does not suggest legal error.
87. In furtherance of this submission, Defence Counsel submitted that to the extent that the decisions of this Court appeared to focus attention or assign weight to the fact that environmental offences were not “trivial” offences they again involved the risk of illegitimately narrowing the scope of the judicial discretion conferred by the Crimes (Sentencing Procedure) Act 1999, s 10. In illustration of its submission, Defence Counsel cited the following passage from the judgment of Lloyd J in Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89 at 97:
- It is not usual, in the case of strict liability offence, for a defendant to receive the benefit of s 10 of the Crimes (Sentencing Procedure) Act 1999. The reason for this, I think, are explained in McDonagh on behalf of Great Lakes Council v Birdon Dredging Pty Ltd and in Caralis v Smyth , to which I have referred. One of the matters to be taken into consideration under s 10 is “(b) the trivial nature of the offence” . I do not regard the subject offence as trivial. The system of planning control would become somewhat ineffective if persons were to carry out development, including demolition work, without ensuring that necessary development consent has been obtained. Whilst I accept the defendant’s submission that it is unlikely to re-offend, there is in my opinion a need to impose a penalty which reflects a general deterrence and to reinforce this obligation on the defendant.
88. It was submitted that the approach taken by Lloyd J placed undue weight on but one of the factors to be considered in the exercise of the judicial discretion conferred by s 10.
89. In this respect, reliance was placed upon the following passage from the leading judgment of the Court of Criminal Appeal given by Simpson J in R v Paris (2001) NSWCCA 83 where her Honour stated:
- Subs 3 requires the court to have regard to the four factors listed. This is not intended to preclude the court having regard to any other relevant factors but it does require express regard to those matters identified. All that his Honour expressly mentioned in his conclusion were the extenuating circumstances in which the offence was committed. True it is that he had, in his earlier remarks on sentence, outlined matters related to the respondent's character, antecedents, age, health and mental condition but he did not clearly relate these to his views of s 10. He did, of course, set out at some length the circumstances of the offence and was therefore fully aware of its nature. On no view of it could it have been regarded as trivial. It is not necessary to the application of s 10 that the offence be characterised as trivial; the four factors mentioned in subs 3 are, in my view, intended to be disjunctive and nonexhaustive.
90. It is to be noted that the other members of the Court Ipp AJA and Wood CJ at Common Law who agreed with the leading judgment of Simpson J expressed their own views on the effect of s 10(3). Thus Ipp AJA (with whom Wood CJ at Common Law agreed) said:
- I agree with everything Simpson J has said, save that I wish to comment as to the effect of s 10(3) of the Crimes (Sentencing Procedure) Act . In my view section 10(3) sets out what may be termed as criteria to be borne in mind in deciding whether or not to make an order referred to in subs 1. While none of these criteria is conclusive, all are to be taken into account.
91. In my judgment, the Defence submissions criticising the general approach that has been adopted by this Court to the discretion conferred by the Crimes (Sentencing Procedure) Act 1999, s 10 have not been sustained.
92. Whereas it may be readily accepted, as was stated by Simpson J in Paris, that the availability of the discretion conferred by s 10 does not depend upon the offence being characterised as a “trivial” offence, the fact that an offence is characterised by the sentencing judge as not a trivial offence obviously must carry weight in the exercise of the judicial discretion, although by itself it is, not a “conclusive” factor (per Ipp AJA in Paris).
93. I now must note my findings in respect of each of the factors enumerated in s 10(3)—
(a) The Defendant’s good character and antecedents have been established only by implication arising from the fact that he is a qualified and registered orthopaedic surgeon in South African and the United Kingdom, who though not a registered medical practitioner in NSW enjoys the status recognised by the Australian Medical Association and the Australian College of surgeons as an instructor of orthopaedic surgeons.
(b) For the reasons I have earlier given, I regard the admitted offence as greater than a “moderately serious” offence against the EP&A Act, s 125 (which has a very wide spectrum of potential operation) and it follows that the offence is not of a trivial nature;
(c) As I have already found, the only extenuating circumstances surrounding the commission of the admitted offence was the Defendant’s honest but mistaken belief that he did not require further Council approval for the construction of the retaining walls which he commissioned P&V Masonry Pty Ltd to undertake. But for the reasons I have earlier given, that honest mistake was not based upon objectively reasonable grounds and indeed, is tantamount to the Defendant’s ignorance of the relevant law. Moreover, I have earlier held that the Defendant was objectively careless in acting upon his mistaken belief by commissioning P&V Masonry Pty Ltd to construct the retaining walls; and
(d) the Defendant is entitled to the benefit of the mitigating factors that I have earlier noted as applying in this case.
94. In exercising the judicial discretion conferred by s 10(1) in the light of my above findings in respect of each of the relevant factors enumerated in subsection (3), there are two other significant matters of general application to the availability of the judicial discretion that were noted by the Chief Justice in Thorneloe, should be noted here.
Firstly, there are the following judicial statements concerning the “essence” of the discretion—
- It is that a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice ” per Windeyer J in Cobiac v Liddy (1969) 119 CLR 257 at 269 quoted with approval by Gleeson CJ when he said in R v Ingrassia (1997) 41 NSWLR 447 at 449:
- The essence of s 556A is that it empowers a court which considers that a charge has been proved, in certain circumstances, to take certain steps `without proceeding to conviction. The legal and social consequences of being convicted of an offence often extend beyond any penalty imposed by a court.
95. Secondly, there is the consideration as to what, if anything, could have been done by a defendant in order to avoid the occurrence of the act or omission that constitutes the offence. The relevance of this consideration emerges from the following passages of the Chief Justices’ judgment at pars 171 to 175 inclusive of Thorneloe.
- 171. Even in the case of an offence of strict liability, no public purpose is served by recording a conviction or imposing a penalty in circumstances where the relevant accused could not, as a matter of practical reality, have done anything to ensure that the offence or, in the case of a result offence, the adverse consequences of the conduct, did not occur.
172 Lord Scarman expressed the purpose of imposing strict liability in Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong [1985] AC 1 at 14:
- ... the creation of strict liability will be effective to promote the objects
of the statute by encouraging greater vigilance to prevent the commission of the prohibited act.
- It is pertinent also to inquire whether putting the defendant under strict liability will assist in the performance of the regulations. That means there must be something he can do, directly or indirectly, by supervision or inspection, by improvement of his business methods or by exhorting those whom he may be expected to influence or control, which will promote the observance of the regulations. Unless this is so, there is no reason in penalising him, and it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim.
- It requires clear language before it can be said that a statute provides for a person to do or to abstain from doing something at his peril and to make him criminally liable if his conduct turns out to be prohibited because of circumstances that that person did not know or because of results that he could not foresee. However grave the mischief at which a statute is aimed may be, the presumption is that the statute does not impose criminal liability without mens rea unless the purpose of the statute is not merely to deter a person from engaging in prohibited conduct but to compel him to take preventive measures to avoid the possibility that, without deliberate conduct on his part, the external elements of the offence might occur. A statute is not so construed unless effective precautions can be taken to avoid the possibility of the occurrence of the external elements of the offence.
96. For reasons that I have earlier given (i) the Defendant’s subjective culpability is based upon his objective carelessness in acting upon his own mistaken belief, albeit honestly held, that the construction of the retaining walls did not require further approval from the Council; and (ii) the gravity of the admitted offence is of a magnitude higher than “moderately serious” (being the manner in which I characterized the offence committed by the co-offender P&V Masonry Pty Ltd).
97. In the exercise of the discretion, the combined weight of these two factors appreciably outweighs the combined weight of the other factors enumerated in s 10(3) which operate in favour of the Defendant, namely his good character and antecedents and the mitigating factors (to which I add the adverse consequences of conviction on the Defendant’s personal and professional standing).
98. Accordingly, and for all of the foregoing reasons, I am of the opinion that the Defence submission for the favourable exercise of the discretion conferred by s 10 must be rejected.
99. In my opinion, and for the reasons given, this is a case where it is appropriate to register a conviction and to impose a fine in respect of that conviction.
100. I have earlier referred to the outcome of the prosecution of the co-offender P&V Masonry Pty Ltd. In that case, having concluded that the defendant had not made out a case for discharge or conditional discharge pursuant to the Crimes (Sentencing Procedure) Act 1999, s 10, I said at pars 63 and 64:
- 63. In my judgment, the established facts of the present case call for conviction and sentence, having regard to my evaluation of the gravity of the offence and the Defendant’s criminal and moral culpability in the commission of the offence, but giving full effect to the several mitigating factors that I have earlier identified.
64. The result of these findings is that a modest and lenient penalty of $10,000 is considered appropriate but this amount should be reduced by an overall discount of 50 per cent reflecting the combined weight of all mitigating factors relevant to this case, resulting in an ultimate penalty of $5,000.
101. In the present case, I have already found the Defendant’s subjective culpability to be at an appreciably higher level than that of the co-offender P&V Masonry Pty Ltd with the ultimate consequence that the gravity of the present offence is to be evaluated at a higher level of gravity than “a moderately serious” offence against the EP&A Act, s 125 as found in the conviction of the co-offender.
102. In my judgment, the appropriate fine to be imposed upon the conviction of the present Defendant needs to be a higher fine than that was imposed on the co-offender to reflect the differences in my evaluation of (i) the respective subjective culpability of each of the co-offenders; and (ii) the overall gravity of the offence committed by each of the co-offenders. Such a measured result does not violate the parity principle as it was expounded in the following passage from the joint judgment of Dawson and Gaudron JJ in Postiglione at 301:
- The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them (see Lowe v The Queen (1984) 154 CLR 606 at 610-611, per Mason J. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated.
103. In my judgment, a moderate penalty of $20,000 is considered appropriate in the present case but this amount should be reduced by an overall discount of 50 per cent reflecting the combined weight of all mitigating factors relevant to this use, resulting in the ultimate penalty of $10,000.
104. In imposing that fine with the 50 per cent overall discount, I have also taken into account the fact that the Defendant has incurred the expense of being legally represented in these proceedings and the fact that I propose to order the Defendant to pay the Prosecutor’s costs. I also have taken into account the fact that the Defendant has incurred costs and expenses in complying with the s 121B Order.
ORDERS
105. For all of the foregoing reasons, I make the following orders:
1. Defendant is convicted of the offence as charged.
2. A penalty of $10,000 is imposed in respect of that conviction.
3. Defendant is to pay the Prosecutor’s costs in the sum agreed or failing agreement, in accordance with s 253 of the Criminal Procedure Act 1986.
4. Exhibits be returned.
5. The fine is to be paid to the Council in accordance with the Local Government Act 1993, s 694.
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