Land and Environment Court of New South Wales CITATION : Camilleri v Wollondilly Shire Council [2009] NSWLEC 136 60003 of 2009 APPLICANT Sharon Camilleri RESPONDENT: Wollondilly Shire Council PARTIES : 60004 of 2009 APPLICANT: Anthony Camilleri RESPONDENT: Wollondilly Shire Council FILE NUMBER(S) : 60003 of 2009; 60004 of 2009 CORAM: Biscoe J KEY ISSUES: PROSECUTION :- appeals from Local Court against conviction and against sentence. LEGISLATION CITED: Environmental Planning and Assessment Act 1979, ss 76A, 121B, 121H DATES OF HEARING: 3 August 2009 EX TEMPORE JUDGMENT DATE : 3 August 2009 APPLICANTS: Mr A. Camilleri, in person SOLICITORS n/a LEGAL REPRESENTATIVES: RESPONDENT: Ms J. Duve SOLICITORS Caldwell Martin Cox JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES BISCOE J 3 AUGUST 2009 60003 of 2009 SHARON CAMILLERI v WOLLONDILLY SHIRE COUNCIL 60004 of 2009 ANTHONY CAMILLERI v WOLLONDILLY SHIRE COUNCIL EX TEMPORE JUDGMENT 1 HIS HONOUR: These are two related appeals from the Local Court. The appellants Mrs Sharon Camilleri and Mr Anthony Camilleri were convicted and sentenced by the Local Court on a prosecution brought by the respondent, Wollondilly Shire Council, for carrying on development by operating a dog boarding establishment without development consent in April 2008 contrary to s 76A of the Environmental Planning and Assessment Act 1979 (EPA Act). Both pleaded guilty. Mrs Camilleri was fined $2,000 and ordered to pay legal costs of $2,500 and court costs of $73. Mr Camilleri was fined $2,000 and ordered to pay legal costs of $1,000 and court costs of $73. 2 Mrs Camilleri appeals against sentence. Mr Camilleri appeals against conviction; in case his appeal against conviction is unsuccessful he seeks leave to amend to alternatively appeal against sentence. 3 The appellants appeared in person in the Local Court. On the appeal Mr Camilleri appeared in person and, without objection, spoke on Mrs Camilleri's behalf. The Prosecutions 4 Originally, the council charged Mrs Camilleri and her son, Mr Jason Featherstone, with carrying on this development without development consent in April 2008 contrary to s 76A of EPA Act. They pleaded not guilty. The charge against him was dismissed after a finding that he took on the role of an employee rather than an owner of the business. Mrs Camilleri was convicted. Subsequently she applied successfully to annul the conviction. 5 Later, a fresh, identical charge was laid against her and was listed for hearing in the Local Court in early 2009. 6 In late 2008 Mr Camilleri was charged with the same offence. The summons against him was before the Local Court for mention on the same date as the hearing of the charge against Mrs Camilleri in 2009. On that date, he indicated to the Local Court that he pleaded not guilty and was willing for the matter to proceed against him forthwith. Mrs Camilleri also pleaded not guilty. They were not legally represented. The magistrate proceeded to hear both charges together. 7 The magistrate asked questions and made comments in the course of which Mr Camilleri referred to the business as Mrs Camilleri's business. The magistrate encouraged the defendants to consider pleading guilty and indicated that, if they did so, he would be able to give a discount on sentence. After a short adjournment, both pleaded guilty. The magistrate asked Mr Camilleri for his explanation. He said it was Mrs Camilleri's business, she employed him to help with the training side, he was not part of the business and he was neither an owner nor a current lessee of the property. Towards the end of the hearing when Mr Camilleri asked the magistrate if he would be able to give a "full" explanation, he was not given that opportunity. 8 The prosecution tendered its evidence, which included the following. On 26 September 2006 the council wrote to "The Resident" at the subject address in question in Picton. The letter was headed "Boarding of Dogs". Reference was made to a recent complaint received by the council alleging use of the property for the commercial boarding of dogs. The council advised that under the Wollondilly Local Environmental Plan 1991, the conduct of a dog boarding establishment was an activity requiring the prior approval of the council. The letter required cause to be shown in writing within 21 days giving reason why the council should not issue an order under the provisions of the EPA Act requiring the alleged unauthorised use to cease. 9 Two days later, Mrs Camilleri replied by letter in which she said that the complaint was false and made by certain persons whom she alleged were disgruntled. She said that, "We are basically dog trainers, and we primarily give private lessons in clients' homes, however, as the aforementioned persons are aware, it is our intention to apply to council, in the near future, together with architectural plans for some boarding facilities." This letter evidences that Mrs Camilleri was aware that there was a need to obtain council development consent. 10 The council replied by letter of 25 October 2006 stating that Mrs Camilleri's reasons had been noted and that any proposed use of the property for boarding, breeding and training of dogs must have the prior consent of the council. The letter concluded reasonably by stating that no further action would be taken at this stage and that in the event of any further enquiries she could contact the undersigned council officer. 11 On 21 February 2008, the council wrote again to Mrs Camilleri stating that it was in receipt of a complaint regarding dog boarding and training being undertaken at her premises. The letter said that an inspection had been carried out on 20 February and it was observed that three dogs were at the premises; that the council had received information that numerous dogs were boarded there in return for payment; that a search of the council's records had been unable to locate any development consents which authorised the premises to be used as an animal boarding or training establishment; and that circumstances now existed for the council to issue a notice of intention to give an order seeking the use of the premises as an animal boarding establishment to cease. 12 The council gave notice pursuant to s 121H of the EPA Act that it intended to give an order (Order No 1) pursuant to s 121B, requiring Mrs Camilleri to cease the use of the premises as an animal boarding or training establishment. A number of reasons were given. One reason was that the use of the premises as an animal boarding or training establishment required development consent. The council informed Mrs Camilleri that should the council find it necessary to give the Order, and if it was not complied with, the council may commence legal proceedings in the Land and Environment Court. The council informed her that the EPA Act carried a maximum penalty of $1.1 million and a maximum daily penalty of $110,000 for breaches of the Act. The council informed her that it might also choose to exercise its powers pursuant to the Act to do all such things that were necessary or convenient to give effect to the Order and recover all costs incurred as a debt due back to the council. The council further informed her, as a guide, that the relevant penalty infringement notice for this offence provided for a penalty amount of $1,500. 13 Mrs Camilleri replied by letter of 24 February 2008 in which she said that the premises were not being used as a boarding or training establishment. 14 There were further complaints and on 23 April 2008 council officers attended the premises with police with a search warrant. The evidence before the Local Court as to what occurred on that occasion was set out in a statement by Mr Shane Simpson, team leader of the Compliance Division of the council. Photographs were taken of a number of dogs at the premises and papers were produced which indicated that a business called "Australian Dog Squad" was boarding and training dogs. A summary, which was tendered in the Local Court, indicated that eight dogs were currently being boarded at the premises for a fee, of which a number had also been boarded on a previous occasion or occasions for a fee. Present on this occasion were Mr and Mrs Camilleri and Mrs Camilleri's son, Mr Jason Featherstone. In reply to a question from Mr Simpson to Mrs Camilleri, "Who runs the business?", she replied, "Me and Jason". Mr Camilleri was cooperative in providing council officers with records relating to the dogs and answering questions. The Appeals 15 I have examined the evidence before the Local Court and can find nothing in it capable of supporting Mr Camilleri's conviction. That conclusion is supported by further evidence read on the appeals. The evidence indicates that the dog boarding business was owned and operated by Mrs Camilleri and that he was an employee; that he was neither an owner nor a lessee of the property; and that it was she, not he, who committed the offence. 16 The prosecutor has explained that there was an apprehension prior to the Local Court hearing that Mrs Camilleri might suggest at her hearing that it was Mr Camilleri's business and that this might gain credence from his participation on the occasion of the search by producing documents and answering questions. The prosecutor was ready to cross-examine on the point. In fact no such suggestion was made at the Local Court hearing, and the evidence was as described above. 17 On Mr Camilleri's application, the Court amends his notice of appeal by adding at the beginning the words "Application for leave to appeal against conviction on the grounds appearing in the notice of appeal below". The document is capable of being amended in that way; and the Court is satisfied that it ought to be so amended for the following reasons: he requires leave to appeal as he pleaded guilty; he obviously intended to file the correct appeal document; there was no evidence capable of supporting his conviction; and he has been legally unrepresented at all times. The absence of any evidence capable of supporting his conviction involves a question of law and on that ground I grant leave to appeal and I allow the appeal. 18 I turn to Mrs Camilleri's appeal against the severity of her sentence. The matters relevant to sentencing include the objective gravity of the offence and her subjective circumstances. The maximum penalty indicates the seriousness with which Parliament views the offence. The maximum penalty for this offence is $1.1 million, although only $110,000 if it is dealt with in the Local Court. Mrs Camilleri's conduct challenged the integrity of the planning system. The evidence establishes that she was conscious for a considerable period of time of the need to obtain development consent and had been put fairly on notice by the council of the consequences if she did nothing to rectify the situation. She did nothing. Much time passed before she was charged. I cannot see any sound reason or excuse for her conduct. There is a need for both specific and general deterrence. It is unacceptable for persons to simply ignore the requirement to obtain development consent, particularly when they have been put reasonably on notice, as in this case. There is a need to deter others from engaging in such conduct. 19 As regards subjective circumstances, very little has been put before the Court. It appears that she has no prior convictions and there is no reason to suppose that she has not been of prior good character. However, there has been no expression of contrition or remorse. There is evidence that her dog training and boarding services are valued by clients, but that is of little significance for present purposes. 20 The council submits that the penalty was fair, even if at the lower end of the scale. In my opinion, the sentence imposed upon her was, if anything, lenient. I can see nothing on the material before me which would constitute sound reason for appellate intervention with the sentence. Accordingly, I propose to dismiss her appeal. Orders 21 In the case of Mrs Camilleri's appeal, the orders of the Court are as follows: 1. Appeal dismissed. 2. Order that the appellant pay the respondent's costs of the appeal. 22 In the case of Mr Camilleri's appeal, the orders of the Court are as follows: 1. Amend the notice of appeal by adding at the beginning "Application for leave to appeal from conviction on the ground stated in the notice of appeal below". 2. Grant leave to appeal. 3. Allow the appeal and set aside the conviction and orders made against the appellant in the Local Court on 27 February 2009. 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.