Land and Environment Court of New South Wales CITATION : Ku-ring-gai Municipal Council v Moujalli [2002] NSWLEC 188 PROSECUTOR Ku-ring-gai Municipal Council PARTIES : DEFENDANTS Moujalli FILE NUMBER(S) : 50009 of 2002 and 50010 of 2002 CORAM: Pearlman J KEY ISSUES: Prosecution :- development without development consent - reliance upon forged plans - construction of works in departure from forged plans - extent of culpability - plea of guilty - mitigating factors - application of s 10 Crimes (Sentencing Procedure) Act 1999 Crimes (Sentencing Procedure) Act 1999 s 10 LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 76A(1), s 125 Ku-Ring-Gai Planning Scheme Ordinance CASES CITED: Ku-ring-gai Municipal Council v Kizana [2002] NSWLEC 187 DATES OF HEARING: 01/08/2002 EX TEMPORE JUDGMENT DATE : 08/01/2002 PROSECUTOR Mr M L Wright (Barrister) SOLICITORS Deacons LEGAL REPRESENTATIVES: DEFENDANTS Mr C W McEwen (Barrister) SOLICITORS D La Rosa, Izzo & Co JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 50009 of 2002 and 50010 of 2002 Pearlman J 1 August 2002 No 50009 of 2002 KU-RING-GAI MUNICIPAL COUNCIL Prosecutor v JOSEPH MOUJALLI Defendant No 50010 of 2002 KU-RING-GAI MUNICIPAL COUNCIL Prosecutor v NAJAT MOUJALLI Defendant Judgment 1 There are two charges before me today and they arise in very unusual circumstances. 2 By the first charge, which is numbered 50009/02, Joseph Moujalli is charged that between 11 and 23 February 2001 at Turramurra he committed an offence under s 125 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") in that he did cause development (being the erection of a two storey residential addition) to be carried out at premises known as 14 Princes Street, Turramurra, for which development consent was required under the Ku-Ring-Gai Planning Scheme Ordinance, without obtaining development consent, which was a thing forbidden to be done under s 76A(1) of the EP&A Act. 3 An identical charge is brought in proceedings 50010/02 against Najat Moujalli, who is Mr Moujalli's wife. I will deal later with this other charge, but firstly I will direct my attention to the charge against Mr Moujalli. 4 The matter is unusual because fundamentally what happened was the erection of a building without consent, which occurred as a consequence of the forgery of building plans. Some of the circumstances of that forgery are set out in an earlier judgment: Ku-ring-gai Municipal Council v Kizana [2002] NSWLEC 187. 5 In outlining the circumstances of this case, I should say that I have read affidavits by Mr W Boyle sworn 19 June 2002 and by Mr S Murray sworn 17 June 2002. But at the commencement of the hearing today, Mr Moujalli changed his plea from a plea of not guilty to a plea of guilty. There was accordingly no opportunity to prepare and file a statement of agreed facts. Between themselves counsel for the prosecutor and counsel for the defendant have put before the Court the facts and circumstances of the case in respect of which they have been instructed. In the circumstances, I am prepared to accept those facts and circumstances as put to me in counsels' submissions, partly for the reason that many of those facts and circumstances are set out in the affidavits which have been formally read and are also known to the Court by reason of the proceedings against Mr Kizana. 6 Mr Moujalli is not a builder. He is a fruiterer, that is, he sells fruit and vegetables. He bought a property which he had previously been renting and he moved his business to another place. But in relation to the property he had bought, which is the subject property at 14 Princes Street, Turramurra, he wished to build a residential addition. He engaged for that purpose his cousin, Mr Emil Moujalli, and plans were prepared and submitted to the council. The council refused the development application on 16 April 1999. 7 Mr Moujalli then proceeded to engage, instead of his cousin, another person, Mr Joseph Kizana (who had been referred to him), to act as a consultant to draw up plans, put in a development application and obtain development consent for the residential additions which he wished to construct at the subject premises. Ultimately, after pressing Mr Kizana, Mr Moujalli was furnished with a plan prepared by Mr Kizana, numbered JK01, and upon which there were various stamps which indicated council approval. The plan was never approved by council and the plan in fact was a forgery by Mr Kizana. 8 Mr Moujalli proceeded to carry out building work himself, but he utilised Mr Kizana's services as a building supervisor and a consultant. The building that was built contained a number of departures from plan JK01, but Mr Moujalli believed that Mr Kizana had obtained whatever approval was necessary for those departures. In any event, he proceeded to build the building. 9 The particulars of the offence, as amended with leave, contain particulars in respect of five ways which the building has been erected in departure from plan JK01. They are as follows: i. The bedroom window is 1.6m x 1.2m (1.92m2) with two windowpanes and not 2.2m x 1m with three panes (2.2 m2) as shown on plan JK 01; ii. The stairs between the unauthorised building and the shop are different in design to those shown on plan JK 01; iii. A storeroom is located beneath the rear stairs to the laneway and is not shown on plan JK 01; iv. The floor levels of the unauthorised building and the patio landing are the same level and do not have a 200mm step as shown on plan JK 01; v. The balcony doorway opening is a 1.8m wide single window and sliding frame instead of the 3.7m wide double sliding doors and windows as shown on plan JK 01. 10 Mr Moujalli is charged with a breach of the EP&A Act in carrying out building without obtaining development consent. It is a wider allegation than the particular five matters that are set out in the amended particulars. The summons as framed in that wider manner is made out by the prosecution, and the elements of the offence are admitted by the plea of guilty. 11 The unusual manner in which the amended particulars of offence are framed arises from this fact. Mr Moujalli built a building relying upon plans which he believed to be true and which he believed were the subject of consent. In departing from them in the five respects that are set out in the amended particulars without any approval from the council to do so, he was himself carrying out works which, had plan JK01 been approved, would still have needed another approval (by way perhaps of modification) which he did not have. 12 This matter was the subject of debate between myself and counsel for the defendant because, had Mr Moujalli in the circumstances which are now apparent, built the building entirely in accordance with plan JK01, he might have had a defence to the prosecution, being a defence based upon an honest and reasonable belief in a set of facts which, if true, would have excused him from culpability. However, he departed from plan JK01 in the circumstances which are set out in the five respects in the amended particulars. 13 It is important to note that fact because the extent of Mr Moujalli's culpability in this matter to which he has pleaded guilty is realistically set out in those five respects. They were the things he did that were different to what he thought he had approval to do and he did those without any further approval. He did them relying on the advice and skill of Mr Kizana. His reliance on Mr Kizana was, of course, completely misplaced and his counsel, Mr McEwen, has frankly acknowledged that. I take that into account in considering the degree of culpability of Mr Moujalli. 14 I take into account some other matters in his favour. First, it was put to me that the five matters set out in the amended particulars of offence are in themselves small departures from plan JK01, and would have been small departures even if plan JK01 had been approved. 15 Next, I take into account various matters that have taken place which have brought all these circumstances to some sort of conclusion. Mr Moujalli, I am told, has obtained development consent for the use of the building as now erected subject to conditions and he has obtained a building certificate in respect of the building. That, to some extent, has regularised in his favour what has happened. 16 Mr Moujalli has suffered considerable stress by reason of these proceedings and other proceedings that have been brought in relation to the particular circumstances. I am told and I accept that he has been forced to sell the premises at Princes Street because works are still required to bring the building into proper conformity with the relevant regulations and the cost of those works is beyond him. 17 Mr Moujalli has no prior convictions of any kind. He was born in 1952 in Lebanon and came to Australia when he was 21 having the trade of a cabinetmaker, but he has worked since in a fruit and vegetable business. He is not a builder. He is not skilled in matters of council approvals and building, and he relied upon Mr Kizana for help in that regard. 18 It has been put to me both by Mr Wright appearing for the prosecutor and by Mr McEwen appearing for Mr Moujalli that this is a proper case for the dismissal of the charges under s 10 of the Crime (Sentencing Procedure) Act 1999. I think, in the circumstances, that this is so. I say that because of the nature of the five matters in the amended particulars, and taking into account Mr Moujalli's character, the nature of the offence, the triviality of the five matters, and in particular the extenuating circumstances in which this offence was committed. It is appropriate therefore to apply s 10 of the Crimes (Sentencing Procedure) Act. 19 Mr Moujalli has agreed to pay, in relation to the proceedings against him, the costs of the prosecutor in the amount of $2,500. 20 Therefore, in proceedings 50009 of 2002 I make the following formal orders: i. I find Mr Moujalli guilty of the offence with which he is charged; ii. I direct that the charge be dismissed pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999; iii. I order Mr Moujalli to pay the costs of the prosecutor in the amount of $2,500. 21 I turn now to proceedings 50010 of 2002 against Mrs Moujalli. The prosecutor has not offered any evidence in relation to that matter and it is appropriate, therefore, that it be dismissed. My formal order is that the proceedings be dismissed without any order for costs. 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.