> Land and Environment Court of New South Wales CITATION : Ristevski v Hurstville City Council [2003] NSWLEC 409 APPELLANT Zivko Ristevski PARTIES : RESPONDENT Hurstville City Council FILE NUMBER(S) : 60006 of 2003 CORAM: Talbot J KEY ISSUES: Appeal :- against sentence imposed by local court - limit in lower court relates only to jurisdiction and not maximum penalty Evidence :- leave given to rely on fresh evidence on appeal Crimes (Local Courts Appeal and Review) Act 2001 s 37(1), s 37(2), s 39, s 39(2), s 49, s 70 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 10 Environmental Planning and Assessment Act 1979 s 76A CASES CITED: R v Munday (1981) 2 NSWLR 177; R v Thomson (2000) NSWLR 383 DATES OF HEARING: 26/11/2003 EX TEMPORE JUDGMENT DATE : 11/26/2003 APPELLANT Ms L Byrne (Barrister) SOLICITORS R J Walsh Murphy & Roskov LEGAL REPRESENTATIVES: RESPONDENT Ms K J Eggleton-Ozen (Solicitor) SOLICITORS Deacons JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 60006 of 2003 Talbot J 26 November 2003 Zivko Ristevski Appellant v Hurstville City Council Respondent Judgment Introduction 1 HIS HONOUR: The proceedings before the Court arise by way of an appeal made pursuant to Pt 4 of the Crimes (Local Courts Appeal and Review) Act 2001 ("the CLCAR Act") whereby the appellant is seeking the Court to review and to re-exercise the discretion in relation to the sentence imposed upon the appellant by a Magistrate in the local court at Kogarah on 5 June 2003 following a plea of guilty. 2 Some time was taken this morning in dealing with an application by the appellant to give fresh evidence pursuant to leave granted under s 37(2) of the CLCAR Act. Section 37(2) of that Act provides that fresh evidence may be given but only by leave of the Land and Environment Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given. The proceedings before the Magistrate at Kogarah proceeded on the basis of the tender of documents, including statements of evidence from the council prosecutor's witnesses. There was neither oral evidence, at least from the defendant and so far as I can gather, nor any documents produced to the local court by the defendant. 3 Be that as it may, the difficulty for the defendant, now the appellant, was the fact that the evidence that he sought to give in this Court had not been dealt with in the lower court, except by way of submission made by the solicitor appearing for the defendant. The explanation given for that circumstance is that the plea was conducted in a busy local court in an entirely conventional manner, so called, namely that the defendant did not give evidence. Matters were put from the bar table. 4 There is no submission put to me that the omission to lead evidence before the Magistrate was done on the basis that the prosecutor agreed that the submissions could be taken into account as if they were evidence. As the matters that have been raised today are critical to the proper understanding by this Court of the circumstances, I allowed the fresh evidence to be given by way of two affidavits and several documents. 5 I do not accept that it is an appropriate practice (notwithstanding what the accepted procedure might be) for a defendant to merely make submissions in the local court in respect of matters which the defendant seeks to have taken into account on sentencing and then to seek to overcome the evidentiary problem by, in effect, litigating the matter in this Court for the first time. I say that being well aware of the commonly adopted procedure whereby such matters are submitted from the bar table. But it must be understood that where that is done, no matter what procedures are adopted or what customs are accepted, although it is not evidence and although I do not have the benefit of what the Magistrate had to say in judgment, nevertheless, the Magistrate would have been fully entitled not to take account of any submission made that was not supported by evidence. I say that quite deliberately because now that there is an appeal to this Court, from the decisions of Magistrates in matters such as this, it needs to be understood that this Court will not necessarily always accept that such a situation will give rise to the grant of leave in every case. 6 I granted leave on this occasion because to do otherwise had the potential for this Court not to be properly informed in respect of the matters which formed a fundamental basis for the submissions on sentencing. Ms Eggleton-Ozen, who appears on behalf of the respondent, took me to a number of authorities which make it quite clear that it cannot be assumed that leave will be given unless a foundation is established which identifies the ground to admit fresh evidence. It will not generally be granted if a forensic decision was made not to lead the evidence. Where the circumstances are not unusual or complex, then the Court will generally rely on the transcript, particularly now that s 37(1) specifically provides that an appeal is to be dealt with by way of a re-hearing on the basis of certified transcripts of evidence given in the original local Court. 7 There is only one particular reference that I should make mention of and that is in the case of R v Munday (1981) 2 NSWLR 177, particularly at 178, where it was held the review of a sentence in the light of subsequent events is the proper province of the executive government and not of an appeal court. That confirms the conventional approach that it is only in the most exceptional circumstances that the Court will have regard to subsequent events. 8 In this particular matter, the subsequent event, which I ultimately allowed into evidence, was not of great significance, being more in the nature of an updating on the condition of a tree which has been the subject of some controversy. 9 The information laid in the local court was that during the period 24 March 2002 to 17 March 2003, the defendant carried out development comprising:- 1. the injuring of two trees, and 2. the construction of a concrete walkway and 5 retaining walls, without the consent of Hurstville City Council, as required by Hurstville Local Environmental Plan 1994, that being development prohibited under s 76A of the Environmental Planning and Assessment Act 1979 ("EP&A Act"). 10 Particulars were provided. Evidence was in the form of written statements by council officers and that evidence confirms what the defendant now says in his own evidence, namely that he always protested that the work, although carried out without consent, did not to his knowledge, require a consent. 11 It must be borne in mind that the nature of the offence is one that attracts strict liability and that any question of mens rea does not enter into the proof of the offence. Nevertheless, a genuine misunderstanding or lack of knowledge may, in certain circumstances, be taken into account when considering matters that might mitigate in the favour of the defendant. The plea of guilty represents an admission of the central elements of the offence and, accordingly, it is not necessary to re-canvass the issues in regard to guilt. 12 The Court has been taken to an approved set of stamped plans, where there is some general description of the detail of proposed retaining walls but only in a general sense. It is clear that neither the retaining walls nor the walkway were specifically incorporated in the plans, even though there were some retaining walls shown. The retaining walls that were built were an addition. It is fair to say they are substantial structures and are described as being five in number. 13 The complaint about the trees stems from an alleged failure to comply with the conditions of an earlier consent granted for sub-division of the original property of which the subject property forms part, in that works were to be kept at a specified distance from one particular tree at least. There was also a general prohibition under a tree preservation order in relation to the damage to another tree which subsequently died as a consequence of builder's rubble being placed around it. 14 The ultimate evidence that was allowed today confirms an ongoing process whereby there is some prospect that the more important tree, a native angophora, is likely to survive although at the moment it is still recovering. 15 In evidence there is a structural certificate from the appellant's structural engineers that shows that at least the works comprising the external concrete block retaining walls have been placed according to the general detail that I referred to a moment ago with one apparently irrelevant exception in so far as structural soundness is concerned. The engineers have provided an opinion, although it is a bit equivocal, that the reinforcement of the concrete block retaining walls will be structurally sound to take the proposed loads. There is no specific statement, as I understand it, in relation to the elevated stairway in terms of its structural soundness. The fact is, it is conceded by Ms Eggleton-Ozen and it was also conceded before the Magistrate, that Hurstville City Council ("the council") proposes to take no further action to have the works demolished, modified or dealt with in any particular way. 16 There has been no application for a building certificate to date. That, of course, is not a major significant fact. The Court is dealing here with a question of a criminal sanction by way of a monetary fine for the failure to comply with the provisions of the EP&A Act and instruments made pursuant to that Act. However, the concession by the council indicates that not only can the Court rely upon the engineer's opinion in some respects, the council itself raises no issue about the adequacy of the works in terms of structural stability. 17 An affidavit by the appellant has been read. I accept his unchallenged statement that he did not understand at the time that he might need to seek a variation of the development approval for the work that is here in question. There is nothing to refute the statement made by him that the council officers did not follow up in relation to the breach when it was originally identified. The defendant appellant is an owner builder. The works related to a new house being built for family use. He admits to being aware of the constraints in regard to carrying out works in proximity to the trees. It is apparent from the Court file and conceded by the council that a plea of guilty was either entered or foreshadowed on the first return on 22 May 2003 and the defendant is entitled to the benefit of an early plea, not only pursuant to the provisions of the Crimes (Sentencing Procedure) Act 1999 ("the Crimes (Sentencing Procedure) Act but also following the Court of Criminal Appeal and the guideline judgment of R v Thomson (2000) 49 NSWLR 383. The council does not suggest that the appellant is other than of good character and he himself attests in a general way that he has not been in trouble before and that the circumstances that have arisen leading to this prosecution have caused significant stress to him and his family. The appellant submits that the Magistrate erred in that the sentence imposed was manifestly excessive in all the circumstances. The Court is required to re-exercise that discretion and indeed it does not have before it, in any event, any transcription of the judgment below. 18 The CLCAR Act provides in s 39 that this Court may determine an appeal against sentence by setting aside the sentence, varying the sentence or by dismissing the appeal. 19 Ms Byrne, who appears on behalf of the appellant, made a submission that the Court should consider applying the provisions of s 10 of the Crimes (Sentencing Procedure) Act. Apart from the fact that technically the application of s 10 may not be a sentence, which appears to be the only options provided in 39(2), this is not a matter where the Court would be prepared to exercise its discretion pursuant to s 10, notwithstanding the good character and antecedents of the appellant. The offence is sufficiently serious to justify a conviction and a fine. 20 I should mention that in exercising the Courts discretion, it is appropriate and proper to have regard to the maximum penalty provided by the legislation which is $1,100,000. I agree with the submission made by Ms Eggleton-Ozen that the lower penalty prescribed for the local court is a prescription only as to jurisdiction. I propose to exercise the Court's discretion on that basis. 21 Having regard to all of the circumstances, including the seriousness of the offence identified by the Parliament by the amount of the maximum penalty, the need to make it clear by way of general deterrence that the object of legislation such as the EP&A Act is not only for the protection of the individuals who act upon development consents but also for the protection of the general public to ensure that the planning and building laws are complied with in the interests of conformity with the planning laws and in the interests of the health and safety of buildings, which in this case is a dwelling that can be occupied by not only the present owners but by successors as well. 22 The objective seriousness of the offence, particularly having regard to the substantial nature of the work that was carried out without consent, might conceivably attract a penalty in the order of $45,000, depending upon the circumstances. In the circumstances of this case I am not satisfied that the objective seriousness of the offence attracts a penalty as high as that. 23 Furthermore, as I have said, the defendant is entitled to consideration of the matters put in mitigation and in particular the early plea of guilty entered before the Magistrate's court on the first occasion. In the exercise of the discretion, which I have, I propose to allow the appeal and impose a penalty in the sum of $25,000. 24 The issue of costs has been raised. The Magistrate saw fit to make an order for the defendant to pay the council's legal costs in the sum of $4,700.20. I have no evidence before me that would persuade me to exercise that discretion in any other way. I cannot see anything manifestly wrong with that amount nor have I got any evidence that would justify a variation of that order. 25 No submission has been put to me though in relation to the manner in which the question of costs should be addressed on this appeal. I am required I assume, by virtue of the Criminal (Sentencing Procedure) Act, at least to deal with the question of costs. COUNSEL ADDRESSED ON COSTS 26 The appellant is the successful party. There is no question about that on this appeal. Nevertheless, the discretion has to be exercised judicially in relation to costs. Section 49 of the CLCAR Act provides that subject to s 70, which is irrelevant in the circumstances, the Land and Environment Court may make such order as to the costs to be paid for either party including the Crown as it thinks just. The question of what is just entitles the Court to take into account the way in which the proceedings were conducted below, the manner in which the evidence has been dealt with in this appeal and the consequence of that evidence. Furthermore, the Court has to be careful to bear in mind that costs are awarded as compensation to a successful party and are not by way of further penalty or to be assessed according to any means to pay, in contrast to the provisions of the Fines Act 1996 in regard to the assessment of monetary penalty, which I have already considered in setting a penalty of $25,000. 27 Strictly, as I said, the appellant has been successful. However, he has been successful as a consequence, largely, of a re-argument based upon proper supporting evidence of the antecedents, contrition and position of the defendant and an explanation of his understanding or misunderstanding or lack of knowledge which led to the decision below. In the circumstances, the Court is of the opinion that there should be no order as to costs in relation to the appeal. COUNSEL ADDRESSED ON COSTS 28 The formal orders of the Court are as follows:- (1) The appeal is upheld. (2) The defendant is ordered to pay a penalty by way of a monetary fine in the sum of $25,000. (3) No order as to costs on the appeal. (4) The exhibits may be returned. (5) The defendant is allowed three months to pay the 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.