Land and Environment Court New South Wales Medium Neutral Citation: 73 Union Street Retail Pty Ltd v Council of the City of Sydney [2016] NSWLEC 145 Hearing dates: 27 October 2016 Date of orders: 27 October 2016 Decision date: 27 October 2016 Jurisdiction: Class 6 Before: Moore J Decision: At [56] and [57] Catchwords: APPEAL – convictions in Local Court on two charges of failure to comply with conditions of development consent – appeals against severityof penalties imposed – appeals upheld – resentencing undertaken Legislation Cited: Crimes (Sentencing Procedure) Act 1999, ss 10(1)(a), 21A, 22 Environmental Planning and Assessment Act 1979 Protection of the Environment Operations Act 1997 Cases Cited: 1643 Pittwater Road v Pittwater Council [2004] NSWLEC 685 Advanced Arbor Service Pty Ltd v Strathfield Municipal Council [2006] NSWLEC 485 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Markarian v The Queen [2005] HCA 25; 228 CLR 357 R v Thomson; R v Houlton 49 NSWLR 383; [2000] NSWCCA 309 Category: Principal judgment Parties: 73 Union Street Retail Pty Ltd (Applicant) Council of the City of Sydney (Respondent) Representation: Counsel: Mr Soltan, director (Applicant) Mr A Singh, solicitor (Respondent) Solicitors: Council for the City of Sydney (Respondent) File Number(s): 174842 of 2016 and 174883 of 2016 Publication restriction: No EX TEMPORE Judgment 1. HIS HONOUR: These proceedings comprise two appeals on behalf of 73 Union Street Retail Pty Ltd (the Applicant) against penalties imposed on charges that have been laid on behalf of the Council of the City of Sydney (the Council) for breaches of environmental planning law for failing to abide by the terms of development consents applicable at the relevant time for premises at 296 George Street, Sydney. The premises during the relevant period of the offences were retail premises. 2. The first of the charges related to conduct that occurred in the early hours of the morning on 25 July 2015, with the offence being that the company traded at those premises during hours of operation that were well outside those permitted by the relevant development consent applying at that time. 3. The second of the offences charged occurred on 29 November 2015, similarly at an early hour of the morning, at the same premises, with this offence being that the company had not complied with its development consent by complying with a management plan requirement and CCTV surveillance camera requirements, requirements that had been incorporated within the applicable development consent as a consequence of a development application made to modify the consent following the first charge, a modification application that was approved by the Council, effective from 11 November 2015. 4. The Applicant has been represented in these proceedings by Mr Soltan, its Director and its guiding mind. Mr Soltan also represented the company in the proceedings before the Local Court, being the proceedings with respect to which these two sentence severity appeals are brought. 5. It transpired from matters raised towards the end of the proceedings that Mr Soltan had been under the misapprehension that he was able to seek orders in these proceedings that would have had the effect of setting aside the entry of a conviction, as well as challenging, on the basis of the pleas in Che court below, the extent of the penalties that had been imposed for each offence. 6. I pointed out to Mr Soltan that the proceedings with which I was dealing were proceedings in Class 6 of the Court's jurisdiction, being appeals against the severity of the sentences in each instance, and that no appeal had been sought to be commenced against the convictions. This was a matter that would have had to have been commenced separately from the severity appeals and would have faced difficulties had they be sought to be pursued now, firstly, of being significantly out of time, and, secondly, the seeking of leave to maintain such a conviction appeal in circumstances where, as I will shortly narrate, Mr Soltan had entered guilty pleas before the Local Court. 7. I observed expressly in this regard, as noted in Mr Singh's written submissions on sentencing filed for the purposes of these proceedings that his Honour, the Chief Judge of the Court, in Advanced Arbor Service Pty Ltd v Strathfield Municipal Council [2006] NSWLEC 485, dealt, at [18] to [20], with the question of whether, on an appeal against sentence, this Court has available to it the ability to re-exercise or reconsider the initial exercising of the power granted by s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act) to deal with the matter by not proceeding to conviction and dismissing the charge. 8. For the reasons that his Honour set out in Advanced Arbor, that option would only be available had the company appealed against its convictions, as well as appealing against the severity of sentence. As a consequence, although the summonses commencing each appeal seek to have me exercise the discretion under s 10(1)(a) of the Sentencing Procedure Act, it is not an avenue available to me in these proceedings. 9. I turn to the proceedings that took place in the Local Court. I have three elements of transcript available to me, as well as the files setting out what transpired in the Local Court in each instance. 10. The first appearance was before the learned magistrate, Magistrate Farnan, on Tuesday 29 March 2016, when there was no appearance on behalf of the Defendant. The matter was therefore mentioned and the matter was stood over until 19 April 2016. 11. On 19 April 2016, the matter was listed before her Honour Magistrate Milledge, at which point there was an appearance for the Prosecutor, but the Prosecutor also mentioned the appearance of the Defendant and the matter was then stood over for some time to enable the matter to be dealt with. 12. Although the matter was stood over on that occasion until Tuesday 26 April 2016, I have no transcript of what might have occurred on that date. 13. However, the matter then came before his Honour Magistrate Grogin on Tuesday 10 May 2016. The matter had, from the commencement of the transcript before his Honour, been before another magistrate that morning for plea and mention, at which time pleas of guilty had been entered by Mr Soltan on behalf of the company. The fact that Mr Soltan appeared for the company and entered guilty pleas on each of the charges is confirmed by the first page of the transcript before his Honour on 10 May 2016. The consequence of that is that I am satisfied for the purposes of s 22 of the Sentencing Procedure Act that the pleas of guilty were entered on behalf of the company at the first available opportunity. 14. Having set out that brief temporal outline, it is necessary to turn to each of the offences and describe the circumstances that underlie them. Although Mr Soltan indicated during the course of the proceedings before me that he had wished to challenge the statement of facts that had been provided to the learned magistrate at the May 2016 hearing, the position that arises with respect to each of the offences is that, as recorded on the first page of the transcript, the Prosecutor handed up statements of facts and other documents in support of each of the two charges that were pressed. 15. It is clear from the transcript that Mr Soltan was present when that occurred and that he did not object to that course being followed at that time. 16. However, it is unnecessary in my mind to set out in great detail the nature of the matters that were recited by his Honour, as it is perhaps a matter of unnecessary detail to set them out at that length. 17. There are a limited number of facts relevant to the first offence, that is, trading outside the permitted hours. It is clear from the material in evidence that at the time of that offence, in July 2015, there was a development consent operative for the premises at 296 George Street, Sydney, a development consent applicable to the retail premises operated by the Defendant company that sets the hours of operation permitted and required to be observed by that company. It is also not contested that on several occasions in July 2015, in the early hours of the morning, a compliance officer of the Council attended the premises and observed that they were trading well outside the permitted hours, with that observation occurring during the early hours of the morning. Those observations took place on 11 and 19 July 2015. 18. The Council's position is that on each occasion the compliance officer left a copy of the development consent and his business card. Mr Soltan contests whether the copy of the development consent was left but does not contest the fact that the officer left his business card. 19. Mr Soltan was granted leave in these proceedings to give oral evidence and he did so to the effect, on this point, that he had endeavoured in response to the leaving of the business cards on 11 and 19 July 2015 to contact the compliance officer at the mobile telephone number that had been left and that his endeavour to do so went through to voicemail without being able to have a conversation with the relevant officer. 20. On a third occasion, again early in the morning, on 25 July 2015, the compliance officer attended and discovered that the premises were still trading during the early hours of the morning. It is that conduct, on 25 July 2015, that gave rise to the first of the charged offences. During the period between the second and third observations by the compliance officer, the compliance officer caused a letter to be sent to the company at an address in St Andrews (that Mr Soltan has acknowledged in the course of his evidence to be his address). That letter was dated 21 July 2015 and is headed, amongst other things, as a final warning notice and recites both the observations of 11 and 19 July 2015 and sets out the relevant conditions of the relevant development consent, of which the company was observed to have been trading in breach. 21. In the proceedings below, Mr Soltan acknowledged receipt of that letter at a time either the day before or two days before the date of the alleged trading hours breach. Mr Soltan was pressed on behalf of the company to provide a reason why, having received that letter, he had not immediately caused the trading hours of the premises to operate in compliance with the development consent approval. I have carefully read the material that is contained in the transcript before the learned magistrate on that point and I have carefully considered the extent to which Mr Soltan sought to address that matter in these proceedings. I am not satisfied that there is any proper explanation given as to why the company was unable (or it was inappropriate for the company) to respond to the warning letter by ceasing trading outside the permitted hours. 22. I now turn to the second charge, the conviction upon which brings the company before me today. First, relevantly, I observed that following the offence in July 2015 it is not contested that, on behalf of the company, Mr Soltan caused a modification application to be lodged with the Council to seek to alter the trading hours of the business to accommodate early morning trading hours - that is, trading at the times that he had been the subject of the conduct giving rise to the original offence. That modification application was approved by the Council with a notice of determination issued showing the date of the modification being 13 November 2015. 23. As I have earlier observed, the second offence took place in late November 2015 (on the 29th of the month), that is some two weeks or so after the modification application determination was made. 24. There are a number of matters that were dealt with by the modification application that went beyond, but were associated with, the alteration of the hours and, I am satisfied, arise out of the alteration to the hours in a fashion consistent with the decision of the former Chief Judge of the Court in 1643 Pittwater Road v Pittwater Council [2004] NSWLEC 685 so that the additional conditions that were imposed arose out of, and legitimately in connection with, the alteration of the hours of operation of the premises to permit trading during the very early hours of the morning. 25. The nature of the additional conditions that were imposed in the 13 November 2015 modification dealt with the requirement for the Plan of Management that had been prepared by Mr Soltan (dated 12 November 2015) being observed, that copies of the development consent and the Plan of Management had to be kept available on the site for production to the police, council officers or any special investigator upon request; required the installation of CCTV surveillance cameras; and the obeying of a number of ancillary conditions necessarily appropriate as a consequence of the now late-night trading consent that had been granted. 26. On 29 November 2015, a council compliance officer undertook an inspection of the premises giving rise to the second charge, that being shortly particularised as not complying with the management plans and not having installed the CCTV surveillance cameras. 27. It was Mr Soltan's evidence before me that subsequent to that inspection and event giving rise to the charge, both the CCTV cameras and the other ancillary requirements had been met. He also gave evidence as to the difficulty of obtaining the necessary equipment and installation of the CCTV cameras and I accept that evidence for the purposes of these proceedings. 28. He did not, in my assessment, provide any adequate explanation, either below or here, as to why other matters of a more minor nature in terms of the burden required to be discharged for the requirements to be met were not in fact complied with as required by the modified development consent. 29. Those are the factual matrices that bring me to the proceedings before his Honour on 10 May 2016 and the imposition of the sentences that his Honour imposed on that day. 30. The transcript discloses that his Honour set out, from p 9 through to approximately three-quarters of the way through p 10, various factual and evidentiary matters in support of the sentencing process that he was obliged to undertake. His Honour observed, on p 10, that the maximum penalty for the July offence that would have been available at that time in an absolute sense was $1.1 million, and the jurisdictional limit of the Local Court for that offence was $110,000. He then noted that those positions applied for both matters, or at least with respect to his jurisdictional limit. 31. His Honour then made brief remarks on sentence and they are in the following terms: One of the purposes of sentencing is deterrence and that is there must be a message to people who run businesses and, it appears, a specific deterrence to Mr Soltan that if he is going to run a business he must do it in accordance with all those lawful and legal requirements. Taking those matters into account I am going to deal with the matter by way of fines. 1. His Honour then convicted the company in each instance and, with respect to the July 2015 offence, fined the company $5,000, together with an order for professional costs of $977.50. For the November offence, his Honour, having convicted the company, fined it $10,000, with further professional costs of $682.00. His Honour made no mention of the question of discount for plea, for example, as mandated by s 22 of the Sentencing Procedure Act. I will return to the provisions of s 21A of the Sentencing Procedure Act and of s 22 of that Act later in this judgment. 2. It is appropriate to note, as was pointed out by Mr Singh during the course of his submissions, that between the date of the July offence and the date of the November offence both the prosecutorial regime and the penalty regime for offences against the Environmental Planning and Assessment Act 1979 (the EP&A Act) had changed. 3. As at the date of the July offence, penalties under the EP&A Act were established by s 126, setting a single maximum penalty with respect to penalty units, that being at that time the conventional way to nominate monetary penalties. The maximum penalty for a corporation at that time was, having regard to the value of the penalty unit as at that date, $1.1 million for a corporation. 4. Between that offence date and the November 2015 offence date, significant amendments were made to the offences provisions of the EP&A Act, offence provisions that, generally speaking, in their structure mirrored the three-tier offence provisions contained in the Protection of the Environment Operations Act 1997 (the POEO Act). 5. Importantly, for the purposes of these proceedings, being offences against the Act that fall within Tier 2 of the now three-tier offence arrangements, the maximum penalty for a corporation under a Tier 2 offence regime was lifted from $1.1 million to $2 million and, for a continuing offence, a further $20,000 for each day upon which the offence continues. 6. As was observed in Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698, the maximum penalty available for an offence reflects the public expression by the parliament of the seriousness of the offence. The corollary of that is that the increasing of a maximum penalty demonstrates an alteration in the public expression of the extent of public concern as to the seriousness of an offence. 7. I note that it does not automatically follow that, as a consequence of the near doubling of maximum penalties, there ought mandatorily be a doubling of penalties that follow in matters such as these but it is, however, necessary to have regard to the fact that the legislature has expressly established an alteration to the penalty regime that is applicable between the date of the first offence before me and the second offence that is before me. 8. Within that general framework, I now turn to address the relevant matters that are called into play by s 21A of the Sentencing Procedure Act. 9. Section 21A(2) sets out the aggravating factors to be taken into account in determining an appropriate sentence for an offence. The vast majority of them are not relevant to either of the present proceedings. Indeed the only potentially relevant one would be that contained in s 21A(2)(o), as to whether the offence was committed for financial gain or not. 10. Although Mr Singh submitted that I should consider that that might be applicable, to the extent that it might be applicable it would seem to me that it is only applicable with respect to the July 2015 offence and not with respect to the November 2015 offence, as the November 2015 offence related to the physical, and what might be regarded as the geographical, aspects of the operation of the premises, none of which it would seem to me from the factual information available to me goes to the financial efficacy of the business. Whereas the July 2015 offence and the extension of its trading hours beyond that which is permitted by the then development consent could well be construed as doing so. 11. However, I also have Mr Soltan's uncontested evidence that the premises had traded at a loss throughout part of that period of time and that, indeed, as a consequence of accumulated loss, the premises have subsequently ceased to trade. As a consequence, I am satisfied that s 21A(2)(o) should be given little to no weight in my sentencing consideration. 12. Section 21A(3) then sets out a number of mitigating factors that I should have regard to. There are a number of them that are equally inapplicable in the context of the present proceedings. However, there are several that are clearly applicable and I now turn to them. 13. First, it is to be observed, as a factor called up by s 21A(3)(e), it was Mr Soltan's evidence that the company did not have any prior record of convictions. Although he also gave evidence concerning his personal circumstances, they being broadly similar to those of the company as to matters of prior record, it is merely the record of the company that is called up for consideration in these circumstances and I am satisfied that as a consequence that is a mitigating factor to which I should have regard. 14. It is, however, a factor that plays a greater role with respect to the July 2015 offence than with respect to the November 2015 offence, even though there was but a short temporal difference between the times of conviction for the July 2015 offence and the times of conviction for the November 2015 offence, a matter to which I will later return in the question of considering whether principles of totality or accumulation might apply. They are quite clearly entirely discrete instances of offending and when the company came to be sentenced for the November 2015 offence it had already been convicted of the July 2015 offence, albeit but a brief time earlier. 15. I am, however, satisfied that that is going to play little role in my instinctive synthesis, a matter to which I will later return. As a consequence I am satisfied that, in broad terms, consistent with 21A(3)(f), the company should be regarded as being of good character for these purposes. 16. Sections 21A(3)(g) and (h) call up the questions of likelihood of reoffending and prospects of rehabilitation. It was Mr Soltan's uncontradicted evidence that as a consequence of the significant downturn in business for the premises at 296 George Street, occasioned by the construction of the light rail project through the centre of the Sydney business district, trading had diminished so as to cause him to cease operating the business and that the business premises were now vacant. Under those circumstances, and absent any evidence from the Prosecutor that the company traded elsewhere, or any indication from Mr Soltan that he proposed to trade the company elsewhere, I am satisfied that there is no realistic likelihood of the company reoffending. 17. I am fortified in that view by the acknowledgement that Mr Soltan has made, both here and below, of the offending conduct of his, comparatively but not absolutely, prompt addressing of the matters that gave rise to the two offences, and, as also called up by 21A(3)(i), the remorse shown by Mr Soltan on behalf of the company, both in these proceedings in his oral evidence and in the proceedings before the learned magistrate. 18. The final matter that is called up by s 21A(3) is that contained in subs (k), that is, the entry of pleas of guilty by the company. As I have earlier indicated, I am satisfied that the company entered those pleas at the first available opportunity and that, as a consequence the discount called up by R v Thomson; R v Houlton 49 NSWLR 383; [2000] NSWCCA 309, is appropriate to be considered. That decision, in the Court of Criminal Appeal, made it clear that the ordinary range of a discount for a plea of guilty was between 10% and 25% of the penalties that might otherwise be imposed, whether monetarily based penalties or otherwise. And I am satisfied, consistent with the approach taken by the Court of Criminal Appeal, that it is appropriate to apply the maximum 25% discount to any penalty that I might otherwise determine should be appropriate. 19. It is now well established that the penalty to be imposed is one determined by undertaking an instinctive synthesis of all the relevant objective and subjective circumstances of the offence and of the offender (Markarian v The Queen [2005] HCA 25; 228 CLR 357). This process necessitates my consideration of the aggregation of the entirety of these factors and their application to this offender. Having undertaken that instinctive synthesis approach, it is then appropriate for me to consider both principles of totality and accumulation, and of the discount for the early guilty plea. 20. Having regard to all of those factors as required, it is my instinctive synthesis that the appropriate penalty to be imposed for the July 2015 offence would be a fine of $3,000; whilst that to be imposed for the November offence would be a fine of $6,000. Having reached that preliminary conclusion, namely that the total of the two penalties should be $9,000, I now turn to the question of the extent to which matters of totality and accumulation should apply. 21. I turn first to the question of totality. The two offences were committed some months apart. Whilst they relate to the same premises, the nature of the conduct was distinctly different and there can be no suggestion that it was, in a practical sense having regard to the terms of the development consent and the modified development consent, to be regarded as a common course of conduct. I am therefore satisfied that no adjustment for totality is required. However, I am satisfied that I should apply a modest degree of adjustment to reflect the necessity to have regard to accumulation of sentences and, as a consequence, I am satisfied that the totality of the penalties, when taken together, having regard to accumulation that should be imposed, would be $8,000. It is to that total that I consider it appropriate to apply the Thomson and Houlton discount of 25%, giving rise to a total penalty of $6,000. 22. It is, however, necessary to divide that as to penalty between each of the offences and I am satisfied that the broad ratio adopted by the learned magistrate is appropriate, and that the penalties should be apportioned $2,000 for the July 2015 offence and $4,000 for the November 2015 offence. 23. I note that there was no appeal specifically addressing the question of professional costs awarded before the magistrate and in those circumstances I do not propose to disturb the orders that his Honour made in that regard. 24. I also observe that in each of his summonses commencing the two appeals on behalf of the company, Mr Soltan seeks that there be no order for costs in these proceedings. I am satisfied under circumstances where there has been not merely a reduction in penalty but a reduction in penalty of some significance in each instance that there should be no order for professional costs in either of the proceedings before me. 25. In the matter of the offence on 25 July 2015 (Matter No 2016/174842), the orders of this Court are that: 1. The appeal is upheld; 2. The Defendant is fined the sum of $2,000; 3. The professional costs order in the Local Court stands undisturbed; and 4. There be no order for costs in these proceedings. 1. With respect to the 29 November 2015 offence (Matter No 2016/174883), the orders of this Court are: 1. The appeal is upheld; 2. The Defendant is fined the sum of $4,000; 3. The professional costs order in the Local Court stands undisturbed; and 4. There is no order for costs in these proceedings. ********** Amendments 11 November 2016 - Appeal notation removed. 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. Decision last updated: 11 November 2016