Reported Decision : 133 LGERA 312 New South Wales Court of Criminal Appeal CITATION : Chin v. Ryde City Council [2004] NSWCCA 167 revised - 10/06/2004 HEARING DATE(S) : 10 May 2004 JUDGMENT DATE : 27 May 2004 JUDGMENT OF : Hodgson JA at 1; Levine J at 41; Hidden J at 42 DECISION : 1. Appeal against conviction dismissed. 2. Leave to appeal against sentence granted, and appeal against sentence dismissed. 3. Appellant to pay the respondent's costs of the appeal and application. CATCHWORDS : CRIMINAL LAW - ENVIRONMENT LAW - LOCAL GOVERNMENT - Appeal - Offences pursuant to. s.125 Environmental Planning & Assessment Act 1979 - Carrying out prohibited development being a use of land - Directions to cease prohibited use complied with - Whether still open to Council to prosecute - Whether offence committed only when use commences or for so long as use continues - CRIMINAL LAW - Appeal against sentence - Sentencing judge refers to s.10 of Crimes (Sentencing Procedure) Act 1999 - Whether failed to consider factors in s.10(3) - Whether penalty manifestly excessive. LEGISLATION CITED : Environmental Planning & Assessment Act 1979 ss.4,76B,125,127 Crimes (Sentencing Procedure) Act 1999 s.10 NSW Crime Commission v.Kelly [2003] NSWSC 56 CASES CITED : Rao v. Canberbury City Council [2000] NSWCCA 471 R v. Piccin No.2 [2001] NSWCCA 323 PARTIES : Larry Chung Ka Chin - appellant Ryde City Council - respondent FILE NUMBER(S) : CCA 60052/04 COUNSEL : J. Overall for appellant C.J. Leggat with T. To and S. Mason for respondent SOLICITORS : R. Zhou for appellant M. Hewett for respondent LOWER COURT Land & Environment Court JURISDICTION : LOWER COURT LEC 5050/02 FILE NUMBER(S) : LOWER COURT Pain J JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL CCA 60052/04 LEC 50050/02 HODGSON JA LEVINE J HIDDEN J Thursday 27 May 2004 CHIN v. RYDE CITY COUNCIL Judgment 1 HODGSON JA: On 3 October 2002, Pain J in the Land and Environment Court found the appellant guilty of the following charge brought under s.125(1) of the Environmental Planning and Assessment Act 1979 (the Act), namely that: On about 21 November 2001 at North Ryde in the State of New South Wales the Defendant did carry out development for a purpose prohibited by an environmental planning instrument, namely use the premises known as 1A and 1B Kent Road, North Ryde, which premises are zoned Residential 2A under the Ryde Planning Scheme Ordinance, for the purpose of a residential flat building, being a purpose prohibited under Clause 23 of the said Ordinance, contrary to s.76B of the said Act. 2 On 1 November 2002, the primary judge made the following orders: 1. The Defendant is convicted of the offence of which he is charged. 2. The Defendant is fined the sum of $7,500 to be paid to the Registrar of the Court within 28 days of today's date. 3. The Defendant must pay the Prosecutor's costs of the proceedings against him, as agreed or assessed. 3 The appellant appeals to this Court against his conviction, and seeks leave to appeal against his sentence. CIRCUMSTANCES 4 The appellant is the registered proprietor of a duplex building, comprising two two-storey buildings joined by garages, known as 1A and 1B Kent Road North Ryde, being Lots 91 and 92 in Deposited Plan No.873146. 5 This property is and was at 21 November 2001 affected by controls imposed by the Ryde Planning Scheme Ordinance, under which it was zoned Residential 2A. Within that zone, the purposes for which the buildings may not be erected or used included "residential flat buildings", a term defined in the Ordinance to mean a "building containing two or more dwellings". The term "dwelling" is defined to mean "a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile". 6 At the hearing before the primary judge, there was evidence from a Council officer that on 21 November 2001 there were four mail boxes outside the property, bearing numbers 1/1A, 2/1A, 2/1B and 1/1B; and that on each of the entrance doors to the street there were two bells. 7 There was evidence from a tenant of 1B to the effect that at that time he lived on the ground floor in premises comprising two bedrooms, a living/lounge room, kitchen, two showers and a bathroom, pursuant to a lease arranged with the appellant; and that there were premises upstairs in 1B which were occupied by another person, with similar accommodation, except that the upstairs premises had two toilets. Each of the two collections of rooms had its own lockable front door. This tenant and his wife had lived on the ground floor since November 1999; and another family had lived upstairs from about the same time until about the middle of 2001. The other person who was living there on 21 November 2001 had moved into the upstairs rooms in about October 2001. 8 There was evidence that there was similar accommodation in 1A, and that the appellant and his family lived downstairs in that house at that time. There was evidence that tenants had lived upstairs in 1A since about August 2000. 9 The building had been built pursuant to a building application made in 1996, showing two two-storey houses, joined by garages. There had been no relevant application to the Council for conversion of the building so as to be adapted for use for flats. 10 One tenancy agreement in evidence showed the landlord as being a company, of which the appellant was a director, described the premises as "ground floor unit" in 1B Kent Road, and showed the rental as being $1000 every four weeks. 11 After inspection by a Council officer on 21 November 2001, the Council required that the use as residential flat building cease and that certain changes be made to the buildings. 12 On 12 February 2002, the Council determined that works undertaken on 1A Kent Road meant that there was no reason for an order to be issued on that address. However this was not the case in relation to 1B Kent Road, and on 28 March 2002 an order was issued by the Council to the appellant to cease using those premises as a residential flat building, and to demolish or remove the kitchen facilities from the first floor and to remove the lockable doors from the ground floor and first floor areas. On 2 April 2002 a Council inspector found that that order had been complied in respect of 1B Kent Road. 13 The appellant gave evidence before the primary judge that he had changed the configuration of the small bedrooms upstairs in 1A and 1B Kent Road to make them into an alcove with a bar, and that he had approached the Council at the time and been told he did not need development consent. He said these changes were to increase the amenity for tenants in 1A and 1B, and that the arrangements were that the tenants in 1B were to share the entirety of the premises. That was contrary to evidence given by the tenant of 1B to which I have referred, and the primary judge accepted the evidence of that tenant. 14 The primary judge found beyond reasonable doubt that 1A and 1B were being used as residential flat buildings on 21 November 2001, and convicted the appellant. GROUNDS OF APPEAL 15 The appellant relies on the following grounds of Appeal: 1. The learned Judge failed to have full regard to the express provisions of section 125(1) of the Environmental Planning and Assessment Act 1979 and in particular failed to have full regard to the words " …and that matter or thing if so directed to be done remains undone… ". 2. The learned Judge failed to have full regard to the express provisions of section 127(6) of the Environmental Planning and Assessment Act 1979 and in particular failed to have regard to the time bar being the 12 month limitation period in which the Prosecutor had to bring proceedings from the date of the commission of the offence. 3. Her Honour failed to properly apply the principles contained in section 10 of the Crimes (Sentencing Procedure) Act 1999 in sentencing the Applicant. 16 I will deal first with the appeal against conviction, and then with the application for leave to appeal against sentence. APPEAL AGAINST CONVICTION Statutory Provisions 17 The following provisions of the Act are relevant to the appeal against conviction. Section 4 of the Act contains the following definition of "development": development means: (a) the use of land, and (b) the subdivision of land, and (c) the erection of a building, and (d) the carrying out of a work, and (e) the demolition of a building or work, and (f) any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument, but does not include any development of a class or description prescribed by the regulations for the purposes of this definition. 18 Section 76B of the Act is in the following terms: If an environmental planning instrument provides that: (a) specified development is prohibited on land to which the provision applies, or (b) development cannot be carried out on land with or without development consent, a person must not carry out the development on the land. 19 Section 125(1) of the Act is in the following terms: Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Director-General, a Council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act. 20 Section 127 of the Act, at the relevant date, provided to the effect that proceedings "may be commenced not later than 6 months after the offence was alleged to be committed". Submissions 21 On ground 1 of the appeal against conviction, Mr Overall for the appellant submitted that, on the correct interpretation of s.125(1), there is no offence committed if relevant orders or directions issued by Council have been complied with. In this case, the appellant had complied with all the Council's requirements by 18 April 2002. 22 Mr Overall submitted that the provision should be interpreted having regard to the intention of parliament, and with the mischief being addressed: NSW Crime Commission v Kelly [2003] NSWSC 56 at [10]-[11]. Relevantly, the mischief being addressed here was the bringing of prosecutions after Council's requirements had been complied with; and the intention of Parliament was to allow a person in breach of the requirements of the Act or of directions by the Council to correct the breach and thereby avoid prosecution. In essence, the relevant breach under s.125(1) was the failure to comply with a direction given under the Act: see Rao v Canterbury City Council [2000] NSWCCA 471 at [73]. 23 On the second ground, Mr Overall submitted the offence charged was carrying out development; and where, as in this case, the relevant development was use of land, the words "carry out" in s.76B indicated that the offence was committed when the relevant use commenced, and not at any later time. Decision 24 In my opinion, as submitted by Mr Leggat for the Respondent, s.125(1) provides four distinct basis of liability, namely: (a) where the Act directs a person to do something; (b) where the Act forbids a person doing something; (c) where an authority (relying on a power under the Act) directs a person to do something; and (d) where an authority (relying on a power under the Act) forbids a person doing something. 25 The use of the word "or" between each of these alternatives shows that they are intended to be alternatives grounds of liability. The second part of s.125(1), commencing "and that matter or thing…" then gives two different ways in which an offence can occur, namely: (1) where something directed to be done remains undone; and (2) where something forbidden to be done is done. The first of these can occur only in relation to things which are positively directed to be done, that is in relation to (a) and (c) above; while the second can arise only in relation to things which are forbidden, that is alternatives (b) and (d) above. 26 The case of Rao dealt with a condition of a development approval forbidding something to be done; and that was treated by Austin J at [73] as involving a direction by the Council authorised by or under the Act forbidding something from being done. That statement by Austin J does not mean that there needs to be such a direction in all cases where s.125(1) is involved. Indeed, when one reads s.76B and s.125(1) together, it would be surprising if s.125(1) did not provide that a breach of s.76B was of itself an offence, irrespective of any additional direction that may be given. 27 The words "remains undone" in s.125(1) are plainly referring to a time by which a matter was directed to be done either by the Act or by an authority relying on a power under the Act. It is at that time when an offence is committed; and s.125(1) does not require that the relevant thing remain undone at the time a charge is brought or at the time of hearing. In any event, the charge in this case was not that something remained undone, but rather something forbidden had been done. 28 For those reasons, the first ground fails. 29 On the limitation question, it was established before the primary judge that the premises were being used by the appellant in contravention of the Ordinance on 21 November 2001, within 6 months of the prosecution being brought. The question then is, did the offence of carrying out the development, being the use of premises in contravention of the Ordinance, occur on 21 November 2001, or only when this use commenced. 30 In my opinion, there is the carrying out of development, being the use of land, for so long as that use of land continues. The use of land is a positive activity, and it would be surprising if what is prohibited by s.76B of the Act is only the commencement, and not the continued carrying on, of use in breach of an environmental planning instrument. Although the actual wording of s.76B is that a person must not "carry out" a use, in context this must include "carry on" a use. 31 Accordingly, the offence did occur on 21 November 2001, and the second ground also fails. SENTENCE APPEAL Statutory Provision 32 The application for leave to appeal against the sentence involves consideration of the Crimes (Sentencing Procedure) Act 1999 s.10, which is in the following terms: (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years, (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. (2) An order referred to in subsection (1) (b) may be made if the court is satisfied: (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to release the person on a good behaviour bond. (2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person. (2B) Subsection (1) (c) is subject to Part 8C. (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. (4) An order under this section has the same effect as a conviction: (a) for the purposes of any law with respect to the revesting or restoring of stolen property, and (b) for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996 , and (c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property. (5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence. Submissions 33 Mr Overall for the appellant noted that the primary judge said that there had been no application made under s.10 for the offence to be dismissed; but submitted that there was no requirement for such an application to be made. Her Honour went on to say that she would not have made such an order because she did not think that the offence could be described as trivial. Mr Overall submitted that, once the primary judge considered s.10, she was obliged to consider all the factors contained in s.10(3) specifically in terms of s.10, and not merely generally in exercising her sentencing discretion. 34 Mt Overall submitted that it was not necessary for s.10 to be applied that the offence be considered trivial: see R v Piccin (No 2) [2001] NSWCCA 323 at [25]. 35 In this case there were matters falling within all four categories of s.10(3) that should have been considered. The appellant was of good character, had no prior convictions, and spent much of his time in service to his community. Whether or not the offence was considered trivial, it was at the low end of criminality, and there was no victim and no damage to the environment. There were extenuating circumstances, in particular in that there was now compliance with all requirements of the Council. Other matters proper to consider included the circumstance that the appellant had suffered a vast amount of press publicity, causing him, as a Councillor of the respondent, great harm. He had incurred substantial legal costs. No other case could be identified where someone had been prosecuted after complying with Council's requirement. 36 Having regard to all these considerations, not only was there error, Mr Overall submitted, in not considering these matters in deciding whether to act under s.10, but also the failure to do so had the result that the penalty was manifestly excessive. Decision 37 It was conceded by Mr Overall that a sentencing judge need not consider s.10 unless specifically requested to do so; and in those circumstances there is a real question whether a passing reference to s.10, such as occurred in this case, means that error is committed if a judge fails to consider all matters that should be considered in dealing in applying s.10. However, I proceed on the assumption that this should be done. 38 As conceded by Mr Overall, the primary judge did in the course of the judgment generally refer to the matters which he seeks to rely on in connection with s.10. In those circumstances, I would not conclude that, in considering whether it was a case for application of s.10, the primary judge did not take those matters into account, along with the question of triviality to which she specifically referred in connection with s.10. I accept Mr Overall's submission that s.10 may be applied even if the offence is not found to be trivial, but I would not read the primary judge's remarks as indicating that she thought otherwise. 39 On the question whether the sentence was manifestly excessive, the primary judge took into account the matters to which I have already referred, and took into account the circumstance that the appellant had co-operated with the Council in correcting the illegal use of the duplexes, within a reasonable time, as being to some extent relevant to contrition and remorse. However, on the question of contrition and remorse, the primary judge correctly took into account that the appellant did not plead guilty but, on the contrary, gave evidence conflicting with the evidence of the tenants which the primary judge accepted; and did not appear to accept the finding that he was guilty. In these circumstances, I am not satisfied that it was manifestly wrong not to act under s.10, or that the penalty was manifestly excessive. CONCLUSION 40 There appears to be no reason why costs should not follow the event. I propose the following orders: 1. Appeal against conviction dismissed. 2. Leave to appeal against sentence granted, and appeal against sentence dismissed. 3. Appellant to pay the respondent's costs of the appeal and application. 41 LEVINE J: I agree with Hodgson JA. 42 HIDDEN J: I agree with Hodgson JA. ********** Last Modified: 06/15/2004 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. 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