Land and Environment Court New South Wales Medium Neutral Citation: Marano v Tweed Shire Council [2021] NSWLEC 95 Hearing dates: 31 August 2021 Date of orders: 1 September 2021 Decision date: 01 September 2021 Jurisdiction: Class 6 Before: Pain J Decision: (1) The Appeal is allowed. (2) The sentence imposed in the Local Court on 28 April 2021 in proceedings 2020/343914 is set aside. (3) The Appellant is sentenced for the offence of carrying out development without consent the subject of proceedings 2021/343914 in the Local Court by making an order under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 dismissing the charge. (4) No order is made in respect of the costs order made in the Local Court. (5) Each party to pay their own costs of the appeal. Catchwords: CRIMINAL – appeal against the severity of sentence in Local Court for offence of carrying out development without consent – exercise of sentencing discretion to make s 10(1)(a) order in light of appellant's circumstances – appeal upheld Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) ss 33, 39 Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 10, Pt 3 Div 1 ( s 21A) Cases Cited: Environment Protection Authority v Barnes [2006] NSWCCA 246 Environment Protection Authority v Queanbeyan City Council (No 3) [2012] NSWLEC 220 Harris v Harrison (2014) 86 NSWLR 422 5 Heatscape Pty Ltd v Mahoney [2015] NSWLEC 126 Moseley v Queanbeyan-Palerang Regional Council (No 2) [2017] NSWLEC 52 R v Hemsley [2004] NSWCCA 228 R v Paris [2001] NSWCCA 83 Terry v Department of Environment, Climate Change and Water [2011] NSWLEC 141 Veen v The Queen (1979) 143 CLR 458 Veen v The Queen (No 2) (1988) 164 CLR 465 Category: Principal judgment Parties: Michelle Marano (Appellant) Tweed Shire Council (Respondent) Representation: COUNSEL: M Seymour and L Sims (Appellant) N Lichti, solicitor (Respondent) SOLICITORS: N/A (Appellant) Minter Ellison (Respondent) File Number(s): 21/173852 Decision under appeal Court or tribunal: Local Court Jurisdiction: Criminal Date of Decision: 28 April 2021 Before: Magistrate G Dunlevy File Number(s): 20/343914 Judgment 1. The Appellant appeals against the severity of her sentence imposed by the Local Court on 28 April 2021, leave to do so having been granted under s 33(1)(a) of the Crimes (Appeal and Review) Act 2001 (NSW) (Appeal Act). Crimes (Appeal and Review) Act 2001 1. Section 39(2) of the Appeal Act provides: Part 4 Appeals from Local Court to Land and Environment Court Division 1 Appeals by defendants … Subdivision 2 Determination of appeals … 39 Determination of appeals … (2) The Land and Environment Court may determine an appeal against sentence— (a) by setting aside the sentence, or (b) by varying the sentence, or (c) by dismissing the appeal. Crimes (Sentencing Procedure) Act 1999 1. Relevant sections of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) state: Part 1 Preliminary … 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows— (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. … Part 2 Penalties that may be imposed … Division 3 Non-custodial alternatives 10 Dismissal of charges and conditional discharge of offender (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders— (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person under a conditional release order (in which case the court proceeds to make a conditional release order under section 9), (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. … (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors— (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. 1. The CSP Act (in particular, Pt 3 Div 1) contains provisions relevant to sentencing procedures. Section 21A of the CSP Act sets out aggravating (subs (2)), mitigating (subs (3)) and other factors to be taken into account in sentencing. The offence 1. On 28 April 2021 the Appellant pleaded guilty to the sole charge of carrying out development without consent. The Court was informed that the matter came before the Local Court because the Appellant 'court elected' following receipt of a penalty infringement notice. Particulars of the charge in the Local Court were: 1. The erection of a colourbond fence; and 2. Some "number of alterations to the house" (Tcpt 28 April 2021 p 2(2-3). These works are specified in par 14 of the statement of agreed facts (SOAF) tendered in the Local Court and involved: 1. The SOAF filed in the Local Court details that the offending occurred between around May and September 2019. The works were subsequently made the subject of a development application lodged on 26 August 2019 that was approved on 20 August 2020. At that same time the Council issued the Appellant with a penalty notice. At that time, the penalty notice included a further substantial particular of offending. This was later struck through as shown in the extract above. The Sentence 1. The Local Court imposed its sentence in the following terms: 1. The Local Court also ordered the Appellant to pay the Prosecutor's costs which were fixed in the amount of $4,000. The Local Court noted that this was a significant amount of money, being "essentially…[her] whole annual income" (Tcpt 28 April 2021 p 12(27). 2. The Appellant's plea of guilty accepts the facts constituting this offence. 3. The maximum penalty for the offence is $500,000. The jurisdictional limit in the Local Court was $110,000. This is relevant for the reasons explained in Harris v Harrison (2014) 86 NSWLR 422 at [92]. Sentencing hearing 1. The evidence on appeal was a statement of facts prepared for the appeal hearing (Ex A) which attached a letter of Professor Soman Elangovan dated 17 August 2021, the Appellant's treating psychiatrist; a statement of facts prepared for the local court hearing (Ex B) which contained a number of photographs showing the work the subject of the charge to which the Court was referred; and the transcript of the local court hearing (Ex C). It was unnecessary to refer to the transcript. Statement of agreed facts for sentencing hearing 1. The SOAF, omitting Annexure A, is as follows: 1. On 28 April 2021, Michelle Suzanne Marano (the Appellant) pleaded guilty in the Tweed Heads Local Court to having committed an offence against ss 9.50 and 4.2 of the Environmental Planning and Assessment Act 1979. 2. Also on 28 April 2021, pursuant to s 9(1)(a) of the Crimes (Sentencing Procedure) Act 1999 the Appellant was convicted and a conditional release order was made with an operation period of 2 years. The Tweed Heads Local Court also awarded Tweed Shire Council (the Respondent) legal costs in the amount of $4,000 pursuant to s 215 of the Criminal Procedure Act 1986. 3. The particulars of the alleged offence were amended on the day of the hearing by the deletion of one particular. To give effect to this amendment, the particular was struck through in the Agreed Facts tendered in the Local Court as follows: 4. The development the subject of the offence was part of a planned refurbishment of a duplex that had fallen into disrepair. Prior to carrying out the development, the Appellant sought advice from planners, engineers, builders and certifiers. A development application for the refurbishment had been lodged but not determined. At the time of carrying out the development, the Appellant was under the mistaken belief that no approval was required for those parts of the refurbishment the subject of the charge. 5. There are no unacceptable environmental or amenity impacts of the development the subject of the offence. Development consent has now been obtained for the refurbishment, including the continued use of the development the subject of the charge. 6. The Appellant has been diagnosed with major depressive disorder, bipolar disorder type 1 on a background of borderline personality disorder. The Appellant's treating psychiatrist has provided a letter to the Court outlining the diagnosis, how it impacted the circumstances of the offence and how the sentence imposed by the Local Court impacted the Appellant in the context of her mental health. The letter is annexed at Annexure A. 7. At the time of the offending, the Appellant was experiencing a manic period and her medication was not assisting in controlling her symptoms. 8. Following her conviction in the Local Court, the Appellant was admitted to hospital due to her mental health in Queensland between 30 April 2021 and 8 May 2021 and again between 12 May 2021 and 18 May 2021. 9. The Appellant's income is approximately $4,000 per annum. 1. The Respondent Council read a short affidavit of its solicitor Mr Lichti affirmed 26 August 2021 which identified that the amount of solicitor-client costs incurred in the Local Court proceedings was much more than $4,000. Efforts to communicate instructions that the Respondent Council would not be opposing the orders sought in this appeal were also attested to. It is unnecessary to further refer to this affidavit. Appellant's submissions 1. The Appellant submits that despite the offence itself being one of general seriousness, given the low level gravity of the offending, her minor moral culpability and unique and significant personal circumstances, it is appropriate for the Court to allow the appeal, set aside the sentence, and make an order under s 10(1)(a) of the CSP Act dismissing the charge against her. The sentencing discretion for the offence of carrying out development without consent should take into account the offending as a single course of conduct. 2. The Appellant does not need to identify any particular error in the sentencing discretion of the Local Court. The Court will re-exercise the sentencing discretion afresh as the means to hear and dispose of the appeal: Heatscape Pty Ltd v Mahoney [2015] NSWLEC 126 (Heatscape) at [18] per Pepper J; Terry v Department of Environment, Climate Change and Water [2011] NSWLEC 141 at [51] per Pepper J. In doing so, the Court may take into account additional evidence brought before it: Heatscape at [18]. 3. The Appellant relies on the letter of Professor Soman Elangovan dated 17 August 2021, the Appellant's treating psychiatrist. That letter details the complex psychiatric history of the Appellant. It details how recent dealings with the Prosecutor have significantly impacted on her mental status. 4. The Appellant's mental illness is relevant to the Court's sentencing discretion in the first two or the four listed ways described by Sperling J in R v Hemsley [2004] NSWCCA 228 at [33]-[36]. Namely, her mental illness relates to her commission of the offence and reduces her culpability and it makes her an inappropriate vehicle for general deterrence and so "moderates that consideration". This is important as that factor is usually highly significant in the sentencing discretion for this offence and was a clear factor taken into account in the Local Court in fixing its sentence. It is submitted that the Court would take account of the Appellant's mental illness to more appropriately "moderate" that consideration. The sentencing discretion 1. The primary consideration for sentencing is imposing a proportionate and appropriate sentence: Veen v The Queen (1979) 143 CLR 458. The appropriate synthesis takes full account of the personal circumstances of the offending and the offender: Veen v The Queen (No 2) (1988) 164 CLR 465. 2. In terms of the purposes of punishment under s 3A of the CSP Act, the Court should take into account: 1. adequate punishment must take into account the Appellant's personal circumstances; 2. the Appellant, who is not a risk for further offending, is not a suitable vehicle to send a message regarding general deterrence; 3. the community does not need any protection from the Appellant; 4. rehabilitation of the Appellant is more likely if the stress of the conviction is removed; 5. the Appellant recognises her accountability for her actions; 6. the conduct is denounced in the Appellant having been found to have committed the offence and ordered to pay costs without needing to also record a conviction; and 7. there has been no harm done to the community. 1. There are no aggravating factors for the purposes of s 21A(2) of the CSP Act. The objective seriousness is very low when the following matters are taken into account. 2. The SOAF made no allegation of environmental harm. It detailed how the development application was lodged by 26 August 2019 and approved by 20 August 2020. The integrity of the planning system was thereby restored. 3. The building works were largely internal to the dwelling and the erection of the fence was innocuous such that the development the subject of the charge would have no negative external impact. 4. The Applicant was told by consultant engineers, builders and planners that consent was not required (Tcpt 28 April 2021 p 9(22-25). The Prosecutor has not identified any practical measures that the Appellant could have imposed to mitigate harm and no harm was caused. Further, her mental state is relevant and the Appellant described her actions at the time as manic and that her medication was not controlling that condition (Tcpt 28 April 2021 p 8(43-44). 5. The Appellant assisted the Council with all initial inspections and investigations and pleaded guilty in the Local Court. 6. There are substantial mitigating factors including: 1. There was no injury, loss or damage. 2. The conduct was not planned but carried out in a state of mania. 3. The Appellant was not fully aware of the consequences of her behaviour and misinformed by consultants. 4. The Appellant continually aided the Prosecutor's investigations and inquiries and pursued a lengthy development application process to have the works approved. 5. The Appellant has consistently and genuinely expressed remorse and contrition. The circumstances of being convicted in the Local Court has weighed more heavily on the Appellant than it would have for other members of the community due to her mental condition. That the Appellant has internalized this conviction and this has exacerbated her suicidal ideation shows the degree to which the conviction has resulted in a disproportionate punishment. 6. The Appellant pleaded guilty in the Local Court. 7. The Appellant is otherwise of general good behaviour with good prospects for rehabilitation. 1. Having regard to the matters in s 10(3) of the CSP Act, the Appellant's mental illness and reaction to her conviction is directly relevant. The fact that a conviction has weighed on her and increased her propensity for suicidal ideation is a significant reason to consider an order that reflects a moderated view of general deterrence and sees that appropriate punishment has already been visited on the Appellant. Extenuating circumstances of her conduct also includes her mania at the time and that she was receiving advice from others that she was not carrying out the development illegally. 2. The Court can take into account that an order under s 10(1)(a) does not disturb the costs order made in the Local Court and the observation in the Local Court that the amount of $4,000 represents a substantial amount for the Appellant: Environment Protection Authority v Barnes [2006] NSWCCA 246 (Barnes) at [78] and [88]; Environment Protection Authority v Queanbeyan City Council (No 3) [2012] NSWLEC 220 at [248]. The order for costs carries, in the personal circumstances of the Appellant, significant personal detriment that should mean no other punishment is warranted. 3. The Court should make no order as to the costs of the appeal. The Appellant has had some measure of success on the appeal and incurred costs due to unreasonable action on the part of the Prosecutor in resisting leave. An appropriate order is for each party to pay their own costs. Respondent's submissions 1. The Respondent Council agreed with these submissions, submitting that the circumstances of the Appellant were not an appropriate vehicle for general deterrence. The medical report of the Appellant's doctor supports the submission that the sentence weighed more heavily on this Appellant than it would on other members of the community. The costs order imposed in the Local Court was an aspect of punishment which may be considered in the determination of the appropriate penalty and represents a general deterrence that upholds the integrity of the system of planning and development control, per Barnes at [78]. Consideration 1. I am undertaking the sentencing exercise afresh in light of the evidence before me in this appeal. It is not necessary to find error on the part of the Local Court. The offence charged of carrying out development without consent is a strict liability offence so that mens rea is not an essential element of the offence. The Appellant seeks an order under s 10(1)(a) of the CSP Act whereby the charge is dismissed so that no conviction is recorded. The particulars of the charge as identified in the Local Court and as stated in the SOAF for the sentencing hearing are set out above in [5], [12] and the photographs attached to the SOAF for the Local Court hearing as seen by me are referred to in [11] above. 2. As submitted at [19] in relation to the purposes of punishment in s 3A of the CSP Act, the Appellant's personal circumstances suggest that she is not an appropriate vehicle for promoting general deterrence and is not at risk of further offending. The Appellant has recognized her accountability for her actions and no harm has been done to the community. 3. The factors to be considered in making an order under s 10(1)(a) are identified in subs (3). These are the person's character, antecedents, age, health and mental condition, the trivial nature of the offence, the extenuating circumstances in which the offence was committed, and any other matter that the court thinks is proper to consider. The four matters in s 10(3) must be considered but it is not necessary to satisfy all of these before a court exercises its discretion to make an order: R v Paris [2001] NSWCCA 83 at [42] (Simpson J, Wood CJ at CL and Ipp AJA agreeing) cited by me in Moseley v Queanbeyan-Palerang Regional Council (No 2) [2017] NSWLEC 52 at [53]. I essentially accept the submissions of the Appellant's counsel to the effect that it is appropriate to make an order under s 10(1)(a) of the CSP Act. 4. In relation to s 10(3)(a), the Appellant's mental condition is clearly identified in the evidence. I am also mindful of her age and that she otherwise has no prior convictions and is of good behaviour. 5. In relation to s 10(3)(b), the particulars of the offence are identified in [5] above and the SOAF in [12] above. The work depicted in photographs before the Local Court was not substantial. The offence is not trivial nor is it serious. 6. In relation to s 10(3)(c), the Appellant's mental condition is an extenuating circumstance. As the Appellant submitted, relying on R v Hemsley, this is relevant to the circumstances of the commission of the offence and also to the exercise of sentencing discretion of whether the Appellant is a "suitable vehicle" for general deterrence. She clearly is not. The medical evidence confirms that a conviction has placed an unusually heavy burden on her. 7. Further, there are substantial mitigating circumstances referred to in the SOAF in [12] above, particularly in par 4, that the Appellant had sought professional advice about the building work. I note that the Appellant has since obtained necessary consent for the work the subject of the offence. Additional mitigating factors are identified above in [25] including that no injury, loss or damage has resulted from the offence, that the Appellant's conduct resulted from her mental state and she was not fully aware of the consequences of her actions. The Appellant fully co-operated with investigations of the offence and has expressed remorse and contrition. 8. The above matters support the exercise of sentencing discretion, given the circumstances of the Appellant, to make an order under s 10(1)(a) of the CSP Act. Accordingly, I would allow the appeal from the Local Court, set aside the sentence imposed and make an order under s 10(1)(a) of the CSP Act. 9. The parties have jointly submitted that no order be made to vary the costs of $4,000 ordered in the Local Court to be payable by the Appellant. I agree with their submissions that the amount of costs ordered is part of punishment for the Appellant, as identified in Barnes. 10. The parties have agreed that each should pay their own costs of this appeal and I consider that is appropriate. Orders 1. The Court orders: 1. The Appeal is allowed. 2. The sentence imposed in the Local Court on 28 April 2021 in proceedings 2020/343914 is set aside. 3. The Appellant is sentenced for the offence of carrying out development without consent the subject of proceedings 2021/343914 in the Local Court by making an order under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 dismissing the charge. 4. No order is made in respect of the costs order made in the Local Court. 5. Each party to pay their own costs of the appeal. ********** Amendments 07 September 2021 - Typographical error on cover page - appearance omitted DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 September 2021