Posted on April 2, 2013 by
Some cases on Sentencing
Defendants charged with breaching section 125 of the Environmental Planning and Assessment Act 1979 (offences against the Act and its regulations) are often surprised to learn that their offences are dealt with under the same general sentencing principles that apply to rapists, murderers and thieves. In this article, the culpability of two recent sentencing matters are reviewed and contrasted to see how these principles operate in practice.
The purposes for which a judge in the Class 5 jurisdiction may impose a sentence on an offender are set out in section 3A of the Crimes (Sentencing Procedure Act) 1999. They are:
- (a) to ensure 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.
Pepper J has applied these principles in two recent cases:
- Ku-ring-gai Council v Abroon (No3)  NSWLEC 12 (Abroon) and
- Burwood Council v Matthews  NSWLEC 23 (Matthews).
In Abroon, the defendant property developer had approval to construct two dual occupancy dwellings, subject to deferred commencement conditions requiring the building of driveways, on-site detention tanks, landscaping and subdivision.
The timing of the deferred commencement conditions was not to Mr Abroon’s liking as he believed the deferred commencement condition requirements needed to be satisfied at the end, not the beginning of the project.
Mr Abroon went ahead and built without regard to the deferred commencement conditions and was charged with two offences; building contrary to the approval for Lot C, and another for building without approval for Lot E.
Although he pleaded guilty to both charges, Mr Abroon argued in mitigation that his certifier had led him to believe that he could do this, calling on the certifier to give approval to the works done without completing the deferred commencement obligations.
The certifier gave evidence that he had not misled Mr Abroon, and in fact denied being the certifier for the dwellings the subject of the two charges.
Ultimately, neither the certifier nor Mr Abroon gained any glory during cross examination. Her Honour, Pepper J, was not impressed by either’s testimony, so that while she accepted that the certifier had made certain statements, Mr Abroon could not assume the role of a misguided innocent.
Mr Abroon was a property developer of 15 to 20 years standing with a number of successful projects to his name. One was in the same local government area, and Mr Abroon argued that his experience on that project led him to believe that the ‘irregularities’ were not a major issue. The other project at 347 Mona Vale Road had involved similar problems of noncompliance with deferred commencement conditions involving the same certifier.
If the Council was prepared to correct the problem in that earlier matter, why was it taking action now, Mr Abroon argued?
Her Honour adopted the prosecutor’s submission:
- the earlier incident merely demonstrated that Mr Abroon was well aware that it was the Council and not the certifier, who had power to vary or correct an issue relating to a deferred commencement condition;
- Mr Abroon was aware of his responsibilities;
- although this is a strict liability offence (meaning that it is not necessary for the prosecutor to prove that the offence was committed intentionally) the question of whether the offence was committed inadvertently, negligently, recklessly, or deliberately would have an impact on sentence.
Her Honour concluded that factors (a), (b), (e), (f) and (g) were relevant.
Factor (a) (regarding the adequacy of the punishment) is returned to at the end of this article. Her Honour stated that it is a basic principle of sentencing law that a sentence both reflect and be proportionate to the objective circumstances of the offence.
As far as factor (b) (deterrence) went, Her Honour noted a submission by Mr Abroon that he had already paid $40,000 in Class 1 merit appeal proceedings to regularise the unauthorised work. Her Honour was not impressed by this. She was of the view that there was a need to impose a sentence that gave specific deterrence to Mr Abroon for what he had done.
As to (e), the Court needed to make the offender accountable for his actions, and to denounce his actions (f).
As to recognising the harm done, factor (g), planning law cases usually refer to the harm done to the community by having planning controls ignored or overridden. However, in upholding the principle that the planning laws should not be derogated from, Her Honor noted that the dwellings had otherwise been constructed in accordance with the approval and to a good standard. This was not a case where the Council had lost the opportunity to assess the impacts of the proposal, and there were no other adverse impacts on the environment.
In summary, Mr Abroon was found guilty of the offences. He was fined $30,000 for the first charge and $20,000 for the second. Because he pleaded guilty, and due to the other subjective factors, he was given a 25% discount on both charges, so that the fines totalled $33,750.
Mr Abroon’s plea of guilty might normally have entitled him to a discount of 25% for that factor alone, but because of the manner in which he conducted the matter, Her Honour decreased this to 20%. What should have been a 2 day hearing was lengthened into 6 days by virtue of Mr Abroon’s argument that the certifier was to blame. The other factors brought the further 5% discount.
Mr Abroon was also ordered to pay the prosecutor’s costs under section 257B of the Criminal Proceudre Act. No figure as to costs was agreed, although Her Honour made reference to a figure of $117,000. Her Honour only indicated that Mr Abroon could argue the sum with the prosecutor and the costs assessor.
This outcome is to be compared with the judgment in Matthews.
In this case, the defendant had purchased a house and then got to work on repairing his new investment pursuant to some recommendations of the building report which he received soon after settlement.
The report indicated that he needed to:
- remove the front carport and replace it with a new steel carport awning;
- rectify the structurally inadequate rear garage roof;
- replace the front porch supports as they were structurally inadequate to take the new roof sheeting; and
- place new timber rafters to make the dwelling structurally sound.
This work required development consent, which Mr Matthew did not obtain.
First he was required to stop work by way of a section 121B Order. The first charge related to his failure to obey the order.
The second charge was for the works carried out without development consent.
As in Abroon, Her Honour concluded that the relevant section 3A factors were (a), adequate punishment, (b) deterrence, (e) accountability, (f) denunciation of the offence, and (g) the harm to the community.
Pepper J found that Mr Matthews had deliberately ignored the stop work order but she found that continuing to do the work may not have been deliberate. This was because Mr Matthews argued that he had been told the work was exempt development and he could establish that he thought that he was therefore not breaching the law. As this was a mistake of law, his state of mind was irrelevant to the finding of guilt, but it did reflect on his culpability.
As with Abroon, the harm done to the community was the breach of the orderly carrying out of work under the planning legislation. Pepper J referred to Preston J’s decision in Pittwater Council v Scahill  NSWLEC 12 at  where His Honour said ‘there is a need for the upholding of the integrity of the system of planning and development control’.
However, Her Honour also weighed this against the other environmental factors in play: the neighbours had indicated that they were appreciative of the defendant’s efforts to improve the house and they were happy with the aesthetic improvement his work had created.
Mr Matthew’s financial situation was dire and he was forced to sell the house to pay his numerous bills. Unlike Abroon, his offence had been committed without a view to gaining financial advantage. Rather, he needed to improve the house so as to sell it. He was not going to make a profit out of the deal, but rather he was trying to escape without going bankrupt.
Her Honour found the offence proven. In relation to the failure to stop work he was fined $20,000 with a 33% discount. In relation to the unauthorised work he was fined $10,000 with a 33% discount, a total of $20,100.
Costs were also given to the prosecutor, but here they were agreed at $9,000 inclusive of GST. Mr Matthews pleaded guilty at an early juncture and his conduct of the proceedings did not delay the matter as did Mr Abroon’s, so the total % discounts were higher.
At first blush, Mr Abroon, a property developer, who conducted a business with a view to profit seems to get off relatively lightly compared to Mr Matthews, a lay person who has bought a house without getting his building inspection before exchange. Mr Abroon, it could be argued receives relatively little specific deterrence notwithstanding the fact that the totality of the sentence was approximately 50% higher than Mr Matthews.
Nevertheless, the sentencing considerations are shown to operate and mitigating circumstances of the case are reflected in the overall outcomes.
Given the extent of them, it would also be interesting to know just how much of the prosecutor’s costs of $117,000 is actually awarded against or agreed by Mr Abroon. Although it is not express, it is possible that the extent of the costs may have had a unconscious influence on Mr Abroon’s sentence.