Land and Environment Court of New South Wales CITATION : Kyriakidis v Ashfield Municipal Council [2005] NSWLEC 738 60008 of 2005 APPLICANT John Kyriakidis RESPONDENT Ashfield Municipal Council PARTIES : 60009 of 2005 APPLICANT Maria Kyriakidis RESPONDENT Ashfield Municipal Council FILE NUMBER(S) : 60008 of 2005; 60009 of 2005 CORAM: Cowdroy J KEY ISSUES: Appeal :- sentence - severity of sentence imposed by Local Court - application of s 10 of the Crimes (Sentencing Procedure) Act 1999 Crimes (Sentencing Procedure) Act 1999 s 10, s 21A, s 22 LEGISLATION CITED: Land and Environment Court Act 1979 s 21A Protection of the Environment Operations Act 1997 s 95, s 96, s 241 CASES CITED: R v Thomson; R v Houlton (2000) 49 NSWLR 383 DATES OF HEARING: 09/12/2005 DATE OF JUDGMENT: 08/01/2005 EX TEMPORE JUDGMENT DATE : 12/09/2005 APPLICANT J Capsanis (solicitor) SOLICITORS J P Capsanis & Co LEGAL REPRESENTATIVES: RESPONDENT M Linkenbagh (solicitor) SOLICITORS Houston Dearn O'Connor JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Cowdroy J 9 December 2005 60008 of 2005 JOHN KYRIAKIDIS Applicant ASHFIELD MUNICIPAL COUNCIL Respondent 60009 of 2005 MARIA KYRIAKIDIS Applicant ASHFIELD MUNICIPAL COUNCIL Respondent JUDGMENT 1 Cowdroy J: Before the Court are two appeals from the Burwood Local Court. The appeals have been brought in class 6 of this Court's jurisdiction pursuant to s 21A of the Land and Environment Court Act 1979. The proceedings are number 60008 of 2005, which relates to John Kyriakidis, and 60009 of 2005, which pertains to Maria Kyriakidis. 2 On 26 July 2005 before Magistrate Mottley the defendants entered pleas of guilty to charges that they failed to comply with a prevention notice issued pursuant to s 96 of the Protection of the Environment Operations Act 1997 ("POEO Act"). Each defendant was convicted and fined the sum of $900 and was ordered to pay court costs. 3 The offences arose following the persistent parking by the defendants of a large motor lorry and trailer outside their home, which is located at 288 Old Canterbury Road, Summer Hill. The motor lorry, registered number YFC 461, is registered in the name of Maria Kyriakidis, and it is used by her husband Mr John Kyriakidis in his business. 4 The parking of the vehicle caused complaint to be made to the Council and an inspection was made by the Council in approximately November 2002. The history shows that the vehicle was parked in the street virtually daily. The defendant had also been seen to carry out repairs to the vehicle in the street. Penalty notices were issued requiring that activity to cease. 5 On 13 November 2003 s 96 notices under the POEO Act were issued to both defendants. On 3 March 2004 penalty notice were issued for failing to comply with those notices and on 14 May 2004 a second penalty notice was issued to each defendant. 6 When the matter came before the Court the defendants were self-represented. It is apparent from the transcript that the offences were not disputed, but the defendants relied upon hardship because of the impossibility of parking the vehicle in their premises. 7 The appeal is made to this Court on the ground that the penalties imposed were excessive. The Court has heard evidence surrounding the circumstances in which the offences took place. The Court is satisfied that the conduct of the Council in pursuing the matter was justified. The defendants were well aware that they were not permitted to leave the vehicle on Canterbury Road in a residential area and yet they continued to do so over many months. 8 The Court has been provided with evidence today of the antecedents of each of the defendants. Such evidence establishes that the defendants reside in their own home at 288 Canterbury Road and that Mr John Kyriakidis' business was solely of the use of his truck and trailer. The evidence satisfies the Court that each defendant is, apart from the offences referred to, a responsible and reliable citizen. The home in which they reside is unencumbered and has been paid off after many years of labour. The defendants support two children, one of whom has just completed high school, and the other who is in need of support. 9 Mr John Kyriakidis is 62 years of age and his wife Maria is 55 years of age. They have stated that they are responsible citizens, and the Court accepts that to be the case. As a result of arrangements which have now been made the vehicle has been stored elsewhere at Arncliffe, and accordingly there is no possibility of the offence being continued. The Court has in fact been informed that the vehicle in question was destroyed by fire only yesterday. 10 Attached to the affidavits of the defendants are financial records showing that they are law abiding citizens. Tax records and profit and loss statements record the income which they have received from the business. Additionally there are references from several persons who have known each of the defendants for substantial periods, and who support the defendants' submission that they are responsible citizens. The Court takes those matters into consideration. 11 When the matter was before the learned magistrate she made reference to the consequences of the conduct of the defendants. She said: We're talking about other people's amenity of life and having a semi-trailer parked in their residential street is not conducive to a quiet enjoyment of other people's property, and that's what this is all about. 12 It is submitted by Mr Capsanis, who appears for the defendants, that such a passage displays a possible misconception by the learned magistrate of the offence to which the defendants pleaded guilty. The words used suggest that the magistrate was taking into consideration the amenity of the residential neighbourhood. However amenity per se is not relevant. 13 Mr Capsanis has also referred to the fact that the learned magistrate did not consider s 10 of the Crimes (Sentencing Procedure) Act 1999 which entitles the Court to dismiss a charge in certain circumstances, nor refer to s 22 of that Act which entitles the Court to give a discount on penalty where there is a plea of guilty. 14 The offence requires the Court to consider the provisions of s 241 of the POEO Act. Section 241(1)(a) requires the Court to consider the extent of harm caused, or likely to be caused, to the environment by the commission of the offence. There is evidence of traces of oil, sand, and other debris, on the roadway in the vicinity of the truck, or in the vicinity of where the truck had been parked. There is also evidence of a drain and a stormwater channel in close proximity. There is, however, no evidence of any actual harm caused by the offence, or that the offence is likely to cause harm to the environment. 15 Section 241(1)(b) of the POEO Act requires the Court to consider "the practical measures that may be taken to prevent, control, abate, or mitigate that harm". In view of the finding above there is no occasion to consider this aspect. 16 Section 241(1)(c) of the POEO Act requires the Court to consider "the extent to which the person who committed the offence could reasonably have foreseen the harm caused, or likely to be caused to the environment by the commission of the offence, again such consideration is now unnecessary. The remaining subparagraphs of s 241(1) are not applicable. 17 The Court has considered the application of s 10 of the Crimes (Sentencing Procedure) Act 1999. The Court is satisfied that Maria Kyriakidis has taken no active part in the commission of the offence, but rather the offence was created by her inaction by failing to require the husband to move the vehicle and park it in a manner which was lawful. Taking into consideration the circumstances of her lack of involvement in any active sense the Court proposes to grant the benefit of s 10 to Maria Kyriakidis. 18 With regard to Mr John Kyriakidis, this matter has come before the Court because of his own inactivity in complying with the requirements of the s 96 notice. Had the notices been observed, both the costs and the subsequent proceedings would have been unnecessary. The Court takes into consideration that Mr John Kyriakidis is otherwise law-abiding, that there is little likelihood of any re-offending, that he has shown remorse for his actions. He has otherwise an unblemished record, he has been a responsible citizen, and he is earning an income from an activity which is lawful. No actual environmental harm has resulted from the offence. 19 Taking those matters into consideration as required by s 21A of the Crimes (Sentencing Procedure) Act 1999, and taking into consideration his otherwise good character, the Court will also extend the benefit of s 10 of that Act to him. Orders 20 The Court makes the following orders: 1. The appeal is upheld. 2. The orders of the Burwood Local Court be set aside. 3. In proceedings 60008 of 2005 the offences are found proved but without proceeding to a conviction, the charges are dismissed, conditional upon the appellant paying the respondent's costs in the amount of $3,725 (being $725 awarded by the Local Court plus the costs of the appeal assessed in the amount of $3,000). 4. In proceedings 60009 of 2005 the offences are found proved but without proceeding to a conviction, the charges are dismissed, conditional upon the appellant paying the respondent's costs in the amount of $855 (as awarded by the Local Court). 5. The appellants pay the respondent's costs as required by orders 3 and 4 within 2 month's of today's date. **************************** 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.