Land and Environment Court New South Wales Medium Neutral Citation: Canterbury City Council v Ali Ahmed [2016] NSWLEC 160 Hearing dates: 12 December 2016 Date of orders: 14 December 2016 Decision date: 14 December 2016 Jurisdiction: Class 4 Before: Robson J Decision: See orders at [56] Catchwords: SENTENCING – civil contempt – disobeying orders of the Court to not carry out motor vehicle repairs outside permitted hours of operation – no evidence of wilful and obstinate disobedience – applicability of Crimes (Sentencing Procedure) Act 1999 – relevant considerations to be taken into account by Court Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 10 Fines Act 1996 (NSW) ss 4, 6 Land and Environment Court Rules 2007 (NSW) r 5.2 Supreme Court Rules 1970 (NSW) Pt 55, r 55.13 Cases Cited: Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46 Burwood Council v Ruan [2008] NSWLEC 167 Burwood Council v Wanless [2014] NSWLEC 20 Canterbury City Council v Ahmed [2016] NSWLEC 68 Elchiekh v R [2016] NSWCCA 225 Giourtalis v R [2013] NSWCCA 216 Hutley v Cosco [2016] NSWLEC 15 Matthews v Australian Securities and Investments Commission [2009] NSWCA 155 Menzies v Paccar Financial Pty Ltd [2016] NSWCA 280 Mosman Municipal Council v Kelly (No 3) (2009) 167 LGERA 91; [2009] NSWLEC 92 Mosman Municipal Council v Kelly (No 6) [2010] NSWLEC 20 Pittwater Council v Brown Brothers Waste Contractors Pty Ltd (No 2) [2009] NSWLEC 210 Queanbeyan City Council v Sun (No 2) (2013) 195 LGERA 14; [2013] NSWLEC 64 R v Donald [2013] NSWCCA 238 R v Todd [1992] 2 NSWLR 517 Re Mycorp Pty Ltd [2014] NSWSC 1180 Waverley Council v Tovir Investments Pty Ltd (No 3) [2013] NSWLEC 35 Waverley Council v Tovir Investments Pty Ltd (No 4) [2013] NSWLEC 88 Wood v Staunton (No 5) (1996) 86 A Crim R 183 Category: Sentence Parties: Canterbury City Council (Plaintiff) Ali Ahmed (First Defendant) Auto Group Australia Pty Ltd t/as BTA Motorsports (Second Defendant) Representation: Counsel: T G Howard SC (Plaintiff) A Radojev (First and Second Defendants) Solicitors: Pikes & Verekers Lawyers (Plaintiff) Harb Lawyers (First and Second Defendants) File Number(s): 2016/00165178 Judgment Introduction 1. The first and second defendants have separately been found guilty of contempt of court by Craig J in Canterbury City Council v Ahmed [2016] NSWLEC 68 ('primary judgment'). The defendants are now before the Court for sentencing. 2. The present matter relates to breaches of consent orders which were signed by the defendants' legal representatives on 19 October 2012, which were made, sealed and entered on 25 October 2012 ('Court Orders'). The relevant order of the Court states: (2) The First and Second Defendants be restrained from using the property known as Unit 2, 13 Harp Street, Campsie NSW 2194 for [t]he carrying out motor vehicle repairs outside of the permitted hours of operation contrary to Condition 5 of the development consent No 4694 of 17 January 1990. 1. As summarised by Craig J in the primary judgment at [7], the defendants breached the Court Orders on 15 occasions between 4 November 2012 and 13 December 2012. Background 1. Justice Craig set out the relevant background facts in the primary judgment at [3]-[43]. Whilst I adopt his Honour's findings of fact, it is convenient to summarise them briefly for present purposes. 2. In January 1990 Canterbury City Council ('Council') issued a Notice of Determination granting development consent for use of a warehouse-style industrial unit at 13 Harp Street, Campsie ('premises'), for the purpose of motor vehicle repairs and storage and wholesaling of spare parts and accessories. A condition of the consent was that the hours of operation were confined between 8:00am and 5:00pm Mondays to Fridays, and 9:00am to 12:00pm Saturdays ('Condition 5'). 3. At all material times, the first defendant was the lessee of the premises, whilst the second defendant traded under the business name "BTA Motorsports". The first defendant's father was the sole director of the second defendant. The work undertaken at the premises involved modifications to and tuning of high performance motor vehicles on the premises. 4. On 25 September 2012, and as a result of numerous complaints about the noise being produced at the premises after hours, Council commenced Class 4 proceedings seeking injunctive relief to restrain the defendants from using the land contrary to Condition 5. 5. In the course of these proceedings, the parties' legal representatives signed short minutes of order that were made, entered and sealed by the Court by consent on 25 October 2012. As noted in paragraph 2 above, the Court Orders restrained the defendants from using the premises contrary to Condition 5 of the development consent. 6. Between 25 October and 13 December 2012 ('Charge Period'), Council received a number of complaints from Mr William Willitts and Ms Aila Willitts, who resided in an adjacent property. Both Mr and Ms Willitts gave evidence that they had "lost count of the number of times they had complained to Council concerning [mechanical] noise from the [premises] outside permitted hours of operation": primary judgment at [23]. Both also deposed that the noise was created by a machine known as a "Dyno Machine", which Mr Willitts described as "like a jet engine preparing to take off": primary judgment at [29]. 7. The Court accepted the evidence of Mr and Mrs Willitts and was satisfied beyond reasonable doubt that both the first and second defendant each breached Order (2) of the Consent Orders. The Court found both defendants guilty of the contempt as charged. Defendants' evidence 1. In the present proceedings, a short affidavit of the first defendant was read into evidence. The first defendant deposed to a number of his personal circumstances and stated that the second defendant had "taken a number of steps to avoid running into situations similar to those that have caused us to be before the Court…". Sentencing principles 1. This is a case of civil contempt. Apart from procedural differences, the distinction between civil and criminal contempt is largely illusory because in both cases the charge has to be proved beyond reasonable doubt and the usual outcome is punishment: see Waverley Council v Tovir Investments Pty Ltd (No 3) [2013] NSWLEC 35 at [23] (Biscoe J). Despite this, disobedience with regard to a Court Order made in civil proceedings may become a criminal contempt if: 1. it is alleged (and proven) that the contempt was contumacious, insofar as it was wilfully and obstinately disobedient; or 2. the contempt proceedings only serve a punitive purpose insofar as they are a punishment for a past breach, and do not serve a remedial or coercive purpose. 1. See: Mosman Municipal Council v Kelly (No 3) (2009) 167 LGERA 91; [2009] NSWLEC 92 at [58] (Biscoe J). 2. Council submitted that the contempt in this case was wilful in the sense that the defendants knowingly undertook the works after hours, but did not extend this submission to suggest that the concept was contumacious. There is no evidence presently before the Court that would suggest that the contempt was wilfully and obstinately disobedient. As such, I find that the contempt was not contumacious. 3. Part 55 of the Supreme Court Rules 1970 (NSW) ('SC Rules') applies to these contempt proceedings pursuant to r 5.2(1) of the Land and Environment Court Rules 2007 (NSW). Although the Court has the power under r 55.13(1) of the SC Rules to punish an individual for contempt by committal to a correctional centre, Council does not seek any such order. Nor does Council seek any order for sequestration of property against the second defendant pursuant to r 55.13(2) of the SC Rules. 4. The relevant sentencing principles in civil contempt cases are well known. The underlying purpose of the exercise of the power of the Court to punish for contempt is to protect the effective administration of justice by demonstrating that the Court's order will be enforced (Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46 at 106-107 (Gibbs CJ, Mason, Wilson and Deane JJ, with Brennan J agreeing on this point); Pannowitz at [20] (Lloyd J)). 5. The following ten factors relevant to sentencing for contempt were identified by Dunford J in Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185 ('Wood v Staunton'): 1. the seriousness of the contempt proved; 2. whether the contemnor was aware of the consequences to himself or herself of what he or she did; 3. the actual consequences of the contempt on the relevant trial or inquiry; 4. whether the contempt was committed in the context of serious crime; 5. the reason for the contempt; 6. whether the contemnor has received any benefit by indicating an intention to give evidence; 7. whether there has been any apology or public expression of contrition; 8. the character and antecedents of the contemnor; 9. general and personal deterrence; and 10. denunciation of the contempt. 1. These factors have been applied by this Court in a number of decisions, including Hutley v Cosco [2016] NSWLEC 15 at [32] (Pain J) ('Hutley'); Burwood Council v Wanless [2014] NSWLEC 20 at [19] (Preston CJ of LEC); Pittwater Council v Brown Brothers Waste Contractors Pty Ltd (No 2) [2009] NSWLEC 210 at [92] (Pepper J) ('Brown Brothers'); Burwood Council v Ruan [2008] NSWLEC 167 at [18] (Biscoe J) ('Ruan'). These principles are also broadly consistent with those outlined by Tobias JA in Matthews v Australian Securities and Investments Commission [2009] NSWCA 155 at [129]. 2. Whilst there is fertile ground for debate as to whether the Crimes (Sentencing Procedure) Act 1999 (NSW) ('Sentencing Act') applies to civil contempt proceedings (see Menzies v Paccar Financial Pty Ltd [2016] NSWCA 280 at [15] (Meagher JA)), it has been applied generally (see Hutley at [32] (Pain J); Re Mycorp Pty Ltd [2014] NSWSC 1180 at [4] (Black J)) and by analogy (see Queanbeyan City Council v Sun (No 2) (2013) 195 LGERA 14; [2013] NSWLEC 64 at [17] (Biscoe J) ('Queanbeyan')). As such, I consider that the Sentencing Act at least provides guidelines to the Court when it is considering civil contempt. 3. The purposes for which a court may impose a sentence on an offender are listed in s 3A of the Sentencing Act and include the following which are relevant in the present case: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, … (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, … 1. There is clearly some overlap between the factors identified as relevant in Wood v Staunton and the relevant factors set out in s 3A of the Sentencing Act. Insofar as they are relevant, I consider them below. Consideration Seriousness of the contempt 1. As outlined above, whilst the defendants' contempt was not contumacious, I find that it was the result of intentional acts undertaken by the first defendant. In the primary judgment, the Court found that the first defendant was well aware of complaints being made concerning the conduct of his business outside the permitted hours of operation. Given the control of the second defendant by the first defendant, that knowledge is properly attributable also to the second defendant. 2. Given this, I find that the contempt was of moderate seriousness. Awareness of the consequences 1. I find that the defendants, who were aware of the complaints and of the noise being generated by the "Dyno Machine", must have had at least some level of awareness of the consequences of their use of that machine outside the permitted hours of consent. Actual consequences 1. I find that the consideration of actual consequences "on the relevant trial or inquiry" is not of present relevance, and note that it was raised in Wood v Staunton because that matter related to contempt that arose out of the Royal Commission in the NSW Police Service. However, it is of present relevance to consider the actual consequences of the defendants' conduct which constituted the breach of the Consent Orders. 2. The defendants' conduct which constituted the breach of the Consent Orders impacted on the amenity of the surrounding neighbourhood, and in particular the amenity of the properties surrounding the premises. I find that these consequences are of moderate seriousness. Reason for the contempt 1. Whilst there is no evidence on this point before the Court, it can be inferred (and I find) that the defendants' reason for working outside hours were to obtain commercial gain insofar as they were servicing cars for financial reward. Contrition 1. I find that there is no evidence of contrition on the part of the defendants. Whilst the defendants submitted that they have "very significantly lifted their level of compliance", this does not constitute evidence of contrition for past wrongs. One can change their course of action without regretting their past conduct. Character and antecedents 1. Whilst the Council submitted that it was unaware of any relevant antecedents, no corresponding submission was made by the defendants. As such, I find that I should not have regard to this factor, as I cannot find on the balance of probabilities that the defendants have no relevant criminal records. 2. There is no evidence before the Court as to the character of the defendants, and as such I again cannot have regard to this factor. Deterrence 1. General deterrence is a significant consideration in the imposition of a penalty for contempt: Waverley Council v Tovir Investments Pty Ltd (No 4) [2013] NSWLEC 88 at [32] (Biscoe J) ('Tovir (No 4)'); Brown Brothers at [117] (Pepper J); Mosman Municipal Council v Kelly (No 6) [2010] NSWLEC 20 at [16] (Biscoe J) ('Kelly (No 6)'). There is a particular need for general deterrence in relation to work being undertaken outside the hours prescribed by development consent, particularly when that work generates significant noise. 2. The defendants submitted that "general deterrence so long after the offence can be of little significance and should be given little weight". Whilst I accept there has been some delay as outlined below, I find that there remains a need to ensure general deterrence. 3. Council submitted that there is also a need for specific deterrence in relation to each of the defendants. Whilst I consider it appropriate to take into account the improved compliance on the part of the defendants in the period since June 2013, I also find that there is at least some need to ensure specific deterrence, particularly given the number of occasions on which the defendants were in contempt of court. Other considerations Delay 1. Delay between the dates of the commission of an offence and sentence can be both a relevant and significant matter when determining an appropriate sentence. 2. The principles were stated in R v Todd [1992] 2 NSWLR 517 ('Todd') by Street CJ, with Nagle CJ at CL agreeing, where the Chief Justice stated at 519: Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach —passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner. [emphasis added] 1. In Todd, Street CJ was considering delays which had been caused as a result of the offender serving sentences for cross border crimes committed at a similar time, and of a similar nature, to those that were the subject of the sentencing proceedings. However, the principles espoused by his Honour are not limited to those circumstances: Giourtalis v R [2013] NSWCCA 216 at [1788] (Bathurst CJ, with Hidden and Button agreeing). 2. The principles relating to whether delay can be relied upon as a mitigating factor were recently considered by Price J (with Button and Fagan JJ agreeing) in Elchiekh v R [2016] NSWCCA 225 at [56]: Delay may be taken into account in favour of an offender: firstly, when it relates to the uncertain suspense in which a person may be left; secondly, when there is demonstrated progress of the offender towards rehabilitation during the intervening period; and thirdly, because sentencing for a stale crime calls for a measure of understanding and flexibility of approach: R v Todd [1982] 2 NSWLR 517 (Todd); R v Blanco [1999] NSWCCA 121; (1999) 106 A Crim R 303 at [16]. Where delay is relied upon as a mitigating factor, the onus is upon the offender on the balance of probabilities: Sabra v R [2015] NSWCCA 38 at [47]. 1. The defendants submitted that there has been substantial delay in the present proceedings which was in no way the fault of either defendant, and that it has placed an unnecessary burden of expectation on both defendants. It submitted that this was therefore a substantial mitigating factor. 2. Council submitted that the delay in the time of filing for the Statement of Charge and the date of this hearing was sufficient to call for consideration of the principles in Todd. 3. Whilst I accept that there has been delay between the hearing of the matter and the conviction entered on 3 June 2016, it is noted by Latham J (with Hidden and Adamson JJ agreeing) in R v Donald [2013] NSWCCA 238 at [49] that: Overwhelmingly, the focus is on the consequences of the delay to the offender, no matter what the explanation for it. 1. Noting that the defendants bear the onus for proving hardship on the balance of probabilities, and that there is no evidence before me of any hardship suffered by the defendants, I find that delay cannot be relied upon by the defendants for the purposes of mitigating any penalty. Consistency in sentencing 1. Whilst there was no evidence or submissions that touched upon consistency in sentencing, the existence of a general pattern of sentencing by the courts for offences of contempt of court akin to the offences before the Court is a relevant consideration. However, each case is different and a sentence in one case does not demonstrate the limits of a sentencing judge's discretion (Kelly (No 6) at [17] (Biscoe J). 2. In Tovir (No 4), Biscoe J referred at [34] to the caution to be exercised in comparing sentences passed in different factual contexts. His Honour made similar comments in Queanbeyan at [38]-[41], where his Honour noted that the range of penalties imposed by this Court in cases of wilful contempt have generally been in the range of $7,500 - $50,000 with higher penalties (which were defined as being over $20,000) being imposed in cases involving environmental harm or the risk of environmental harm. These figures were sourced from Ruan at [26]-[28], and so related to matters before the Court prior to 2008. 3. Given that no other authorities were raised by the parties, I consider that the ranges of penalties summarised by Biscoe J in Queanbeyan and Ruan to be appropriate. Capacity to pay 1. I note that the word "fine" is defined in s 4(1)(a1) of the Fines Act 1996 (NSW) ('Fines Act') as being "any monetary penalty imposed by a court for contempt of court". As such, I find that the Fines Act applies to these proceedings. 2. Section 6 of the Fines Act 1996 (NSW) states: 6 Consideration of accused's means to pay In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount. 1. There is no direct evidence from either defendant in relation to capacity to pay, although the first defendant tendered evidence that he is married, that his wife and four children under 18 are dependent upon him and that he financially supports his elderly mother. 2. Despite this, the defendants submit that their financial position should be taken into account in considering an appropriate penalty, particularly given the "large amount of fees on legal costs" that has been expended. 3. Council seeks its costs for these proceedings, although not on an indemnity basis. It submitted, and I accept, that its actual costs for these proceedings are approximately $111,000. Council explained that this was the result of a five day contested hearing. 4. I find that there is no information regarding the means of the accused before the Court which allows me to make any finding that either defendant lacks the means to pay a substantial fine pursuant to s 6 of the Fines Act. Section 10 1. The defendants submitted that, given the delay and their conduct since June 2013, the Court should make a finding that an order be entered pursuant to s 10(1) of the Sentencing Act. Council submitted that this would not be outside the range of appropriate penalties. 2. Section 10 of the Sentencing Act relevantly provides: 10 Dismissal of charges and conditional discharge of offender (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: … (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years, … (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. … (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. … (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. 1. Whilst there is a question as to whether s 10 of the Sentencing Act can apply in circumstances of civil contempt, I find that to the extent that it was to apply, I would not make such an order, as: 1. I have been unable to make findings as to either defendants' character, antecedents, health or mental condition; 2. I have found that the contempt and its consequences were of moderate seriousness, and were not trivial; 3. I have not made any findings as to extenuating circumstances in which the contempt was committed, nor is there any evidence for me to make such findings; and 4. whilst I have found that the defendants have not continued their contempt since June 2013, I have also found that there is no evidence to suggest that the delay has caused any substantial hardship. 1. As such, I find that it would be inappropriate to make an order pursuant to s 10(1) of the Sentencing Act if the Court had the power to do so. Sentence 1. Taking all relevant matters into account I consider it appropriate to: 1. fine the first defendant $15,000 pursuant to r 55.13(1) of the SC Rules; and 2. fine the second defendant $15,000 pursuant to r 55.13(2) of the SC Rules. 1. I have reduced the fine that would have otherwise been imposed because of the matters referred to above and in particular taking into account that since the earlier hearing before Craig J compliance with the conditions has significantly improved and that the defendants will be responsible for the Council's costs. Orders 1. The Orders of the Court are as follows: 1. The first defendant Ali Ahmed is fined $15,000. 2. The second defendant Auto Group Australia Pty Ltd t/as BTA Motorsports is fined $15,000. 3. The defendants are to pay the plaintiff's costs of the contempt proceedings. ********** 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: 16 December 2016