Musial v Penrith City Council [2022] NSWLEC 134

Land and Environment Court New South Wales

Medium Neutral Citation: Musial v Penrith City Council [2022] NSWLEC 134 Hearing dates: 14 November 2022 Date of orders: 22 November 2022 Decision date: 22 November 2022 Jurisdiction: Class 6 Before: Moore J Decision: See orders at [142] Catchwords: APPEAL ‑ use of the Defendant's site as a "waste or resource transfer station" prohibited by the Penrith Local Environmental Plan 2010 ‑ development control order prohibited use of the Defendant's site as a "waste or resource transfer station" ‑ development control order also required Defendant to remove accumulated waste material stored on the site by 9 May 2021 ‑ on three days in March 2021, Defendant transports additional material onto the site in breach of the first element of development control order ‑ importation of waste material filmed on surveillance camera ‑ Defendant charged with three breaches of development control order based on photographic evidence ‑ waste transported on the site in cage on Defendant's tray‑back vehicle in each instance ‑ maximum volume transported onto site in each instance ~ 2 m³ ‑ maximum fine in Local Court $110,000 for each offence ‑ Defendant pleads guilty before Local Court ‑ Defendant fined $30,000 for each offence ‑ Defendant appeals against severity of sentences imposed by Local Court SENTENCING FACTORS ‑ breaches of development control order carried out for financial gain ‑ potential financial gain minor ‑ financial gain a factor of aggravation ‑ factor to be given limited weight in sentencing consideration SENTENCING FACTORS ‑ no direct environmental harm ‑ large volume of waste material stored on the site not a relevant factor as offending conduct occurred prior to the expiry of the time within which that waste was required to be removed ‑ harm to the regulatory scheme of environmental planning ‑ Defendant imported the material to the site, knowing that he was not permitted to do so ‑ Defendant has no relevant prior convictions ‑ offending conduct to be characterised as toward but not at the low end of the middle range ‑ appropriate starting penalties of $24,000 for each offence GUILTY PLEAS ‑ discount for guilty pleas ‑ Prosecutor accepts Defendant pleaded guilty on the earliest occasion ‑ appropriate to give maximum 25% discount for utilitarian value of guilty pleas ‑ starting sentences adjusted to $18,000 TOTALITY AND ACCUMULATION ‑ all three offences part of the same course of offending conduct ‑ appropriate to modify penalties for second and third offences ‑ penalty for second offence reduced to $16,500 ‑ penalty for third offence reduced to $15,000 ‑ total penalty to be imposed of $49,500 CAPACITY TO PAY FINE ‑ incomplete evidence provided of Defendant's income and other aspects of his financial position ‑ limited evidence provided concerning Defendant's assets, including the Defendant's equity in the site of the offending conduct ‑ Defendant owns the site of the offending conduct unencumbered ‑ Defendant has significant equity in a second property at which he resides ‑ no proper basis established for the purposes of s 6 of the Fines Act 1996 to moderate the otherwise appropriate penalties Legislation Cited: Crimes (Appeal and Review) Act 2001, ss 31 and 39 Crimes (Sentencing Procedure) Act 1999, ss 3A, 17, 21A and 22 Criminal Procedure Act 1986, ss 257B and 257G Environmental Planning and Assessment Act 1979, ss 9.34, 9.37, 9.52, 9.57 and Pt 1 of Sch 5 Fines Act 1996, s 6 Land and Environment Court Act 1979, s 21A Local Government Act 1993, s 694 Penrith Local Environmental Plan 2010 Cases Cited: Budvalt Pty Ltd v Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2022] NSWCCA 9 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Chief Executive, Office of Environment and Heritage v Ausgrid (2013) 199 LGERA 1; [2013] NSWLEC 51 Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd (2013) 199 LGERA 236; [2013] NSWLEC 185 Environment Protection Authority v Barnes (2006) NSWCCA 246 Environment Protection Authority v Timber Industries Ltd [2001] NSWLEC 25 Environment Protection Authority v Waste Recycling and Processing Company (2006) 148 LGERA 299; [2006] NSWLEC 419 Harris v Harrison [2014] NSWCCA 84 Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 Markarian v R (2005) 229 CLR 357; [2005] HCA 25 Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v O'Neill (1979) 2 NSWLR 582 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 383 The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 Transport for NSW v East Coast Wharf Constructions Pty Ltd; Transport for NSW v King [2020] NSWLEC 112 Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Walden v Hensler (1987)163 CLR 561; [1987] HCA 54 Wollongong City Council v Eldridge [2017] NSWLEC 35 Category: Principal judgment Parties: Marian Musial (Appellant) Penrith City Council (Prosecutor) Representation: Counsel: Mr C Koikas, barrister (Appellant) Mr P Boncardo, barrister (Prosecutor)