Land and Environment Court New South Wales Medium Neutral Citation: Lake Macquarie City Council v Gordon [2017] NSWLEC 122 Hearing dates: 1 December 2016, 28 February, 1 March, 20 April, 6 July, 29 August and 11 September 2017 Date of orders: 21 September 2017 Decision date: 21 September 2017 Jurisdiction: Class 4 Before: Moore J Decision: Orders at [206] and [207] Catchwords: CONTEMPT - both Respondents - orders made to address unlawful development - orders set timetable for remediation woks and reporting process timetable and reporting process not adhered to - proper foundation for guilty finding on contempt Charge 1 and Charge 2 for both Respondents CONTEMPT - both Respondents - Charge 3 - Second Respondent carried out development in breach of court order and without development consent - First Respondent aware of and had limited involvement in Second Respondent's activities - proper foundation for guilty finding on contempt Charge 1 and Charge 2 for both Respondents CONTEMPT - First Respondent - objective factors of First Respondent - First Respondent dominated by Second Respondent - First Respondent not kept informed by Second Respondent - Second Respondent has strong subjective circumstances - appropriate to find Second Respondent guilty as charged on all charges but not to proceed to conviction CONTEMPT - Second Respondent - Charges 1 and 2 - degree of forbearance by consent authority - charges of lesser seriousness - modest financial penalties appropriate - discount for pleas of guilty - consideration of totality and accumulation - fines of $3,000 and $2,000 imposed CONTEMPT - Second Respondent - Charge 3 - objective factors of offending conduct by Second Respondent - Second Respondent warned that carrying out proposed work would be in breach of court order - Second Respondent carried out work without development consent and in breach of court order - objective circumstances of offending conduct - conduct on Charge 3 clearly in deliberate disregard of requirement of court order and of the need to obtain development consent - contempt wilful and contumacious - consideration of Second Respondent's subjective circumstances - limited material available - no genuine contrition or remorse - Second Respondent showed no insight into the nature of his offending conduct - prior relevant offence - no lesson learnt from prior conviction - significant need for specific deterrence - need for general deterrence - full-time custodial imprisonment appropriate - discount for plea of guilty - three months imprisonment imposed for Charge 3 COSTS - whether costs should be ordered on indemnity basis - contempt charges brought to uphold orders of the Court and to protect the integrity of the planning system - appropriate to order costs against both Respondents on an indemnity basis - appropriate to have regard to significant costs ordered to be paid when considering financial penalties for Second Respondent Legislation Cited: Civil Procedure Act 2005, s 26 Environmental Planning and Assessment Act 1979, ss 76A(1)(b), 121B, 121JK Fines Act 1996, s 6 Local Government Act 1993, s 378 National Parks and Wildlife Act 1974 Threatened Species Conservation Act 1995 Uniform Civil Procedure Rules 2005, Pt 40 r 7(3) Cases Cited: AGL Energy Ltd v Hardy (No 3) [2017] FCA 952 Bentley v Gordon [2005] NSWLEC 69 Canterbury City Council v Ali Ahmed [2016] NSWLEC 160 Council of the City of Sydney v The Owners of Strata Plan 18820 [2017] LEC 81 Cumberland Council v Khoury (2017) 222 LGERA 78; [2017] NSWLEC 14 at [42] EPA v Barnes [2006] NSWCCA 246 Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242 Lake Macquarie City Council v Gordon and Anor [2016] NSWLEC 49 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89; [2002] NSWLEC 132 New Century Developments Pty Limited v Baulkham Hills Shire Council (2003) 127 LGERA 303; [2003] NSWLEC 154 R v Thompson; R v Houlton 49 NSWLR 383; [2000] NSWCCA 309 Wollongong City Council v Eldridge [2017] NSWLEC 35 Category: Principal judgment Parties: Lake Macquarie City Council (Prosecutor) Diane Joy Gordon (First Respondent) Hugh Charles Gordon (Second Respondent) Representation: Counsel: Mr P McEwen SC/Mr M Seymour, barrister (Prosecutor) Respondents in person Solicitors: Local Government Legal (Prosecutor) File Number(s): 302275 of 2016 Publication restriction: No TABLE OF CONTENTS Introduction Further legal action The March 2017 mediation Implementation of the agreement The effect of the agreement in the contempt proceedings The amended contempt charges The contempt proceedings The Prosecutor's application to vacate the hearing dates The Agreed Facts Introduction The source documents for the SOAF The terms of the SOAF The nature of these contempt proceedings. The sentencing process The entry of the guilty pleas Costs Consideration of relevant matters for Mrs Gordon Introduction The objective factors concerning Mrs Gordon's offending conduct Mrs Gordon's subjective factors Introduction Prior convictions Mrs Gordon's character Contrition and remorse Assistance to the Prosecutor Other relevant subjective factors Mrs Gordon's fears Introduction Loss of employment Entry to Canada Conclusion Deterrence for Mrs Gordon Specific deterrence General deterrence Mrs Gordon and totality and accumulation and her guilty pleas Sentencing Mrs Gordon Consideration of relevant matters for Mr Gordon Introduction Mr Gordon's plea of guilty The difference between the charges The approved works and the time slippage Mr Gordon's works after the 28 September 2016 e-mail from Mr Mostyn (Charge 3) Mr Gordon's presentence report Introduction Mr Gordon's subjective circumstances Introduction Contrition and remorse Mr Gordon's prior conviction Specific deterrence and Mr Gordon General deterrence Determining Mr Gordon's punishment Orders Judgment Introduction 1. Mrs Gordon owns 12 Ebsworth Street in Redhead, a beachside suburb south of Newcastle within the boundaries of the local government area of Lake Macquarie City Council (the Prosecutor). Extensive earthworks have been carried out on the site by her husband. Those earthworks were carried out in a fashion that was in breach of s 76A(1)(b) of the Environmental Planning and Assessment Act 1979 (the EP&A Act). 2. On 30 September 2015, the Prosecutor commenced Class 4 civil enforcement proceedings against Mrs and Mr Gordon seeking to restrain the carrying out of any further works in breach of the EP&A Act and seeking orders requiring rectification of the site in a fashion that would prevent recurrence of past impacts of off-site sediment depositing on the neighbouring downhill property and into the Prosecutor's street where it would be conveyed by the stormwater drain system into the ocean near Redhead Beach. 3. On 2 May 2016, I delivered judgment (Lake Macquarie City Council v Gordon and Anor [2016] NSWLEC 49) (my May 2016 judgment) determining those Class 4 proceedings. That judgment sets out, in more detail than requires to be repeated at this time, the history of Mrs and Mr Gordon's activities associated with the site. It is sufficient to observe that orders were made arising from the expert engineering evidence given in those proceedings for the necessary execution of a defined scope of remediation works. 4. These remediation works were to be carried out by Mr Gordon and were to be supervised by Mr Garry Mostyn, the consulting civil engineer who had given evidence on behalf of the Gordons during the hearing. The orders included a precise timetable for their carrying out as well as setting out how the scope of works was to be defined by Mr Mostyn. It is unnecessary to set out the full terms of the orders but they can be read at the conclusion of my May 2016 judgment. 5. It is sufficient to make, for the purposes of the introduction to these proceedings, two observations. First, over the following months until approximately October 2016, Mr Gordon carried out further earthworks on the site. Until toward the end of September 2016, those earthworks were compliant in scope, but those earthworks that were carried out contrary to the advice of Mr Mostyn given to Mr Gordon on 28 September 2016 were non‑compliant with the earthworks ordered to be carried out. Second, Mr Gordon's activities also were not carried out in accordance with the required timetable set in the orders. Further legal action 1. On 10 October 2016, the Prosecutor filed a Notice of Motion seeking orders that: 1. Mrs and Mr Gordon be punished for contempt; and 2. They pay the Prosecutor's costs on an indemnity basis. 1. That Notice of Motion came before me on 1 December 2016 and pre-trial directions were made. 2. In February 2017, the Prosecutor filed a Notice of Motion which purported to seek an order pursuant to s 121JK of the EP&A Act to go onto the site and carry out what the Prosecutor then considered were necessary site‑stabilisation works (including works intended to address the risk of further damage to the McKenzies' property on the uphill side of the site). 3. As I pointed out to Mr Connors, counsel then appearing for the Prosecutor, on 28 February 2017, such an order can only be made if there is a foundation based on an order made pursuant to s 121B of the EP&A Act and an order under that provision had not been made. 4. Mr Connors then sought leave to amend to rely on Pt 40 r 8 of the Uniform Civil Procedure Rules 2005 (the UCPR) as a basis for seeking intervention. 5. However, at the hearing on 28 February and 1 March 2017, two matters became obvious. First, Mr Gordon's activities on the site in the latter part of 2016 had included excavation on the uphill property at 10 Ebsworth Street. That excavation, along and across the boundary between the two properties, had caused some undermining of structures associated with the house on the neighbouring property. Second, the Prosecutor's further legal steps were not an effective and valid vehicle to seek to address Mr Gordon's activities or the consequences of them. As the most pressing matter was addressing the impacts on the neighbouring property, and preventing further undermining of structures located on it, I arranged for mediation pursuant to s 26 of the Civil Procedure Act 2005 (the Civil Procedure Act) between the Prosecutor and Mrs and Mr Gordon to take place. The March 2017 mediation 1. On 13 March 2017, mediation pursuant to s 26 of the Civil Procedure Act was conducted by (then) Registrar Gray. Her mediation was successful and resulted in an agreement being reached between the Prosecutor and the Gordons concerning funding of, and arrangements for, the carrying out of rectification works by the Prosecutor. To provide the appropriate context for what now requires to be dealt with, it is appropriate to set out both the recitals to, and operative provisions of, that agreement. The recitals were in the following terms: 1. The First Respondent is the owner of No. 12 Ebsworth Street, redhead. (the land) (sic) 2. On 2 May, 2016 the Land and Environment Court made orders requiring the Respondents to carry out works on the land in accordance with certain specified conditions leading to certification of the works by Garry Mostyn of PSM. 3. Certification was not furnished to the Applicant as required by the Orders. 4. The applicant has commenced proceedings against the Respondents alleging contempt by each of them of the Orders of the Court. 5. The Applicant has also commenced proceedings against the Respondents seeking that it be allowed to enter the land and carry out the works as required by the Orders pursuant to R 40.8 Uniform Civil Procedure Rules 2005. (UCPR) 1. There then followed the three operative terms of the agreement. These three terms read: 1. The First Respondent has agreed to the Applicant by it servant, agents, contractors or employees entering the land and do all things as are necessary or convenient to facilitate certification being issued for the stability of the land and the northern boundary by Garry Mostyn of PSM. 2. The Respondents have agreed jointly and severally to pay the sum of $50,000 or the actual cost of carrying out the works whichever is the lesser. 3. The sum of $50,000 is to be paid to the Applicant as to $10,000 within 2 weeks and the balance of the $40,000 within 6 weeks. Such sum to be held by Council until certification is received from Garry Mostyn and is then to be drawn by it as provided in 2 above. 1. This agreement was executed by Mrs and Mr Gordon and by an officer of the Prosecutor with appropriate delegation pursuant to s 378 of the Local Government Act 1993. Implementation of the agreement 1. On the Gordons' part, a series of payments were made in satisfaction of the requirement of term 3 of the agreement. These payments were (Exhibit A, Statement of Facts): 40. On 27 March 2017 Council received the sum of $10,000 from Dianne Gordon and Hugh Gordon, which the Deed of Settlement dated 13 March 2017 (see paragraph 37 above) required to be paid within 2 weeks (by 27 March 2017; … 45. On 26, 27 and 28 April 2017 Council received the sum of $20,000, $18,000 and $2,000 respectively, from Dianne Gordon and Hugh Gordon, which the Deed of Settlement dated 13 March 2017 (see paragraph 37 above) required to be paid within 6 weeks (by 24 April 2017; 1. Although, as can be seen from the payment compliance requirements of term 3 of the agreement, the payments were not completed by the date nominated in the agreement, Mr Peter McEwen SC, for the Prosecutor, has expressly acknowledged to me that the Prosecutor does not make any complaint about this minor non-adherence to the payment timetable. The effect of the agreement in the contempt proceedings 1. It is appropriate, at this point, to note that there was a dispute as to what effect, if any, the agreement has on whether Mrs and Mr Gordon remain in contempt of my May 2016 orders, to the extent charged in these proceedings, or whether their ability to do anything further with respect to the state of the site has meant that the contempt has ceased as a consequence of the lack of further opportunity to purge it as a consequence of the Prosecutor taking over responsibility for the carrying out of the necessary stabilisation activities on the site. 2. I am satisfied that the Prosecutor's stabilisation responsibilities arising from the 13 March 2017 mediation agreement mean that the works to be undertaken by the Prosecutor will stabilise the land but will not have the effect of implementing the plan arising out of my 2 May 2016 orders. However, the effect of the agreement is also that it will no longer be possible for Mr Gordon to purge his contempt by carrying out the works that remained to be undertaken to fulfil the plan derived pursuant to my 2 May 2016 orders. The amended contempt charges 1. On 5 May 2017, the Prosecutor filed two Amended Statements of Charge charging Mrs Gordon and Mr Gordon with contempt. These charges are those being dealt with in this decision. The charges arose out of what the Prosecutor says are breaches of two of the orders made by me in May 2016. The charges and particulars for Mrs Gordon are in the following terms: COUNT 1: Breach of Order 8(k) The First Respondent is charged that she did, contrary to Order 8(k) made by the Court on 2 May 2016 fail to complete the engineering works referred to in Orders 8(a) to (j) within a period of 4 months from the date of the making of Order 8(k). COUNT 2: Breach of Order 8(l) The First Respondent is charged that she did, contrary to Order 8(l) made by the Court on 2 May 2016 fail to provide to the Applicant certification from Garry Mostyn of PSM that all engineering works referred to in Orders 8(a) to (j) had been carried out within one month of Order 8(k) being satisfied. COUNT 3: Breach of Order 6 The First Respondent is charged that she, her servants or agents did, contrary to Order 6 made by the Court on 2 May 2016, carry out earthworks on the Land, which were not works required to be carried out under Order 8, without development consent being obtained for those works. Particulars Terms of the Orders The Applicant relies on the full terms of the Orders. In summary the Orders required that the First Respondent and Second Respondent carry out engineering works on the Land: 1. Batter the area above the line marked "existing vegetation" on Lindsay & Dynan drawing C07 project reference 9890 revision 0 to a slope no steeper than 2.5H:1V (Order 8(a)); 2. Batter the area to the west of any engineered terraces to the front property boundary of the Land to a slope no steeper than 2.5H:1V (Order 8(c)). Order 6 restrained the First Respondent and Second Respondent by themselves, their servants or agents from carrying out earthworks (as defined in the Lake Macquarie Local Environmental Plan 2014), except those works required to be carried out under order 8, unless development consent was obtained. Particulars of Earthworks The earthworks relied upon were carried out between 21 October 2016 and 28 October 2016 and are set out in paragraphs 8 to 10 of the affidavit of Greg Brook sworn 28 November 2016, paragraphs 11 to 13 of the Affidavit of Paul McKenzie affirmed 21 February 2017, paragraph 36 and 51 of the Affidavit of Garry Mostyn affirmed 13 April 2017, and paragraph 4 of the Affidavit of Garry Mostyn affirmed 19 April 2017. The volume of soil moved is set out in paragraphs 50 to 51 of the Affidavit of Garry Mostyn affirmed 13 April 2017. 1. With the substitution of "he" for "she" and "his" for "her", where relevant, the charges and particulars for Mr Gordon were in identical terms. The contempt proceedings 1. The Prosecutor's contempt proceedings came before me, again, on 20 April 2017. The Gordons were self-represented at that time. On that occasion, each of them entered a "not guilty plea" to each charge. Directions were made to prepare for a contested hearing as to whether or not, with respect to either or both of them, the Prosecutor was able to establish proper grounds for convicting of contempt. 2. The contested hearing was set down for four days, commencing on 11 September 2017. Amongst the directions given on 1 December 2016 to facilitate preparation for the hearing, liberty was granted to the Prosecutor, and to the Gordons, to relist the matter on two days' notice to the Court and to the other side - this direction remained effective until the trial date. 3. At the request of the Gordons, the matter was relisted before me on 6 July 2017. On that occasion, each of the Gordons indicated that they wished to be given leave to withdraw their not guilty pleas and enter, in substitution, guilty pleas. This course was not opposed by the Prosecutor; leave was granted by me for the withdrawal of the pleas made on 20 April 2017; and guilty pleas were entered in substitution on behalf of Mrs Gordon and Mr Gordon. 4. As a consequence, revised directions were made for preparation for a sentencing hearing to be held commencing on the first day of what had previously been proposed to be the contested hearing. Revised directions were made to enable the filing and serving of evidence by Mrs Gordon and Mr Gordon on matters they wished to put before me on the question of sentence, including any material that either or both of them might wish to place before me to permit me to make an assessment pursuant to s 6 of the Fines Act 1996 (the Fines Act) as to the capacity of either of them to pay a fine, if such a penalty were to be considered appropriate. 5. As the option of a custodial sentence is available, and each of the Gordons had been served with a copy of the sealed orders made on 2 May 2016, together with the penal notice required by Pt 40 r 7(3) of the UCPR giving notice of the possibility of a custodial sentence (amongst other potential sentencing options), I considered it appropriate to refer Mr Gordon to Community Corrections to obtain a report as to his suitability to serve a custodial sentence, if I was to conclude that he should be so sentenced. The Prosecutor's application to vacate the hearing dates 1. On 22 August 2017, the Prosecutor filed a Notice of Motion seeking, in the alternative, the following two operative orders: 1. That the hearing dates for sentencing of the First Respondent and Second Respondent on 11 to 15 September 2017 be vacated and listed for a later date. 2. In the alternative to Order 1 above, that the hearing for sentencing of the First Respondent and Second Respondent commence on 11 September 2017 and be adjourned part-heard for a later date. 1. The motion was made returnable before me on 29 August 2017. 2. This hearing can be dealt with in comparatively short compass. At the commencement, I indicated to Mr McEwen that, if I was not prepared to vacate the hearing dates as proposed by Order 1, I was not prepared to make Order 2, as pre-emptive exercising of my discretion, as was sought by that order, was inappropriate. 3. I indicated that I would only consider whether or not I should vacate the hearing dates. Mr McEwen then addressed me in support of the Prosecutor's proposition that the hearing should be vacated. As the Prosecutor's evidence on this proposal, he read the affidavit of his instructing solicitor, Mr Swain (he subsequently indicated that, in addition to reading this affidavit on the motion, the Prosecutor also proposed to seek to read this affidavit of Mr Swain in the substantive hearing, if it proceeded). 4. In essence, the Prosecutor's reasons for seeking vacating of the hearing dates arise from the difficulties the Prosecutor has experienced in implementing the first of the terms of settlement in the mediation agreement earlier set out at [13]. The Prosecutor's position is that it will not be in a position to have completed the works and rendered the site safe for, potentially, a further six months or so. In response to my enquiry, Mr McEwen agreed that this would mean that the matter would need to go over for a sentencing hearing some time no earlier than mid-February 2018. 5. The Prosecutor's submission in this regard appears to be founded on the proposition that the contempt remains ongoing, and that the mediation agreement does not have any effect of creating finality as to the contempt by either Mrs or Mr Gordon and that it does not act to finalise their exposure to remediation responsibilities. However, I have earlier set out the effect of the mediation outcomes, as I understand them, at [12] and [13]. 6. Unsurprisingly, the Gordons each opposed the vacating of the hearing dates and resisted the interpretation of the Prosecutor concerning both the accepted contempts and what was said to be the status of the mediation agreement. 7. I determined that the appropriate course was to maintain the hearing dates and that the consequence of that was that the Prosecutor's motion was dismissed. 8. During the course of subsequent discussion as to what further pre‑trial directions might be required (if any), Mrs Gordon indicated that her already filed affidavit was the only evidence upon which she proposed to rely. 9. Mr Gordon indicated that he did not propose to give any evidence on his own behalf but that he merely proposed to make submissions. 10. Mr McEwen indicated that, in addition to Mr Swain's affidavit of 22 August 2017 already read on the motion to vacate, and the other Prosecutor affidavits already filed and served, the only additional evidence that the Prosecutor proposed to file and serve would be updating affidavits by Mr Swain (concerning the state of the proceedings) and a further council officer's affidavit concerning the state of the site. The Agreed Facts Introduction 1. On 27 July 2017, the Prosecutor filed a Statement of Facts. At the time that it was filed, it was not a document agreed to by Mrs or Mr Gordon. However, subsequently, each of them adopted the document. As a consequence, when the document was tendered during the course of the sentencing hearing, it was tendered as a Statement of Agreed Facts (the SOAF) and became Exhibit A. The source documents for the SOAF 1. On 6 July 2017, the Prosecutor had informed me, and Mrs and Mr Gordon, of the list of affidavits upon which the Prosecutor intended to rely at the sentencing hearing. This list was confirmed at the hearing on 22 August 2017 on the Prosecutor's unsuccessful application to vacate the dates of the sentencing hearing. Mrs and Mr Gordon were directed to advise the Prosecutor which of the Prosecutor's witnesses were required for cross‑examination. 2. At the commencement of the sentencing hearing, I was advised by the Prosecutor that none of the prosecution witnesses were required for cross‑examination. As a consequence, the SOAF incorporates references to the various source documents from which the elements of the SOAF have been derived but it was not necessary for the Prosecutor to tender, or take me through, each of those source documents. 3. It is to be noted that two of the source documents were appended to the SOAF. The first of those was an e-mail dated 26 September 2016 from Mr Mostyn to Mr Gordon incorporating a plan of the site showing its boundaries; its topographic contours at 2.5-metre intervals; and the location of various retaining wall elements. It set out advice from Mr Mostyn concerning the further required work. 4. The second annexure comprised an e-mail chain between Mr Mostyn and Mr Gordon, with the concluding element being an e-mail from Mr Mostyn to Mr Gordon incorporating Mr Mostyn's comments on the future works Mr Gordon proposed to carry out and their relationship (or lack of relationship) with the works that were required to be carried out pursuant to my orders of 2 May 2016. 5. It will be necessary to return to the detail of these annexures in detail later. It is not necessary to reproduce them at this time. The terms of the SOAF 1. Although it is a somewhat lengthy document, given the conclusion, overall, I have reached with respect to the sentencing of Mr Gordon and the nature of that to which I need to refer in the SOAF, it is appropriate to reproduce that document in full. It was in the following terms: 1. On 2 May 2016 Justice Moore of this Honourable Court made declarations and orders in the Class 4 proceedings Lake Macquarie City Council v Gordon and Anor [2016] NSWLEC 49 (the "Court Orders"), which included the following Orders: a. Order 6 of the Court Orders restrained the First Respondent ("Dianne Gordon") and Second Respondent ("Hugh Gordon") by themselves, their servants or agents from carrying out earthworks (as that term is defined in the Lake Macquarie Local Environmental Plan 2014) on 12 Ebsworth Street Redhead (the "Land") except the works required in Order 8, unless or until development consent is obtained to carry out the earthworks; b. Order 8 of the Court Orders required that Dianne Gordon and Hugh Gordon carry out slope remediation earthworks on the Land, including: i. Batter the area above the line marked "existing vegetation" on Lindsay & Dynan drawing C07 project reference 9890 revision 0 to a slope no steeper than 2.5H:1V (Order 8(a)); ii. Batter the area to the west of any engineered terraces to the front property boundary of the Land to a slope no steeper than 2.5H:1V (Order 8(c)). iii. All engineering works referred to in Orders 8(a) to (j) shall be completed within 4 months of the date of this order (Order 8(k)); iv. Dianne Gordon and Hugh Gordon shall provide to the Applicant ("Council") certification from Garry Mostyn of PSM that all engineering works referred to in Orders 8(a) to (j) have been carried out within one month of Order 8(k) being satisfied (Order 8(l)). 2. On 30 May 2016 at approximately 6:24pm, Council's Solicitor received an e-mail from Simon Hill of HWL Ebsworth attaching a letter from Jane Hewitt and Mark Cottom of HWL Ebsworth, which enclosed by way of service Notice of Intention to Appeal filed by Dianne Gordon (solely) with the Court of Appeal (Document 2 of Exhibit "BS-1"). 3. On 17 June 2016 Council issued letters to Dianne Gordon and Hugh Gordon serving a sealed copy of the Court Orders (Annexure "B" to the Affidavit of Greg Brook dated 10 October 2016). On the same date, Council's Solicitor emailed to Jane Hewitt and Mark Cottom of HWL Ebsworth a copy of Council's letters to Dianne Gordon and Hugh Gordon (Document 6 of Exhibit "BS-1"). 4. On 27 June 2016 Jane Hewitt of HWL Ebsworth emailed Council's Solicitor providing that they are no longer acting for Hugh Gordon and Dianne Gordon (Document 12 of Exhibit "BS-1"). 5. On 27 June 2016, Garry Mostyn of PSM prepared a design of the engineering works for Dianne Gordon and Hugh Gordon at 12 Ebsworth Street Redhead, which design conformed to the design required in Order 8 (the "Engineering Design") (Paragraph 4 of Garry Mostyn's Affidavit dated 19 April 2017). 6. On 29 June 2016 at approximately 11:25am, Garry Mostyn issued to Council the Engineering Design (Document 3 of Exhibit "GM-1"). On 29 July 2016 Garry Mostyn prepared an addendum to the Engineering Design to take into account the information obtained from a site investigation completed the previous week (Document 6 of Exhibit "GM-1"). 7. Agustria Salim of PSM inspected the Land on the following dates and observed that: a. On 9 August 2016 the key to the retaining walls was being excavated in accordance with the Engineering Design (Paragraph 13 of Garry Mostyn's Affidavit dated 13 April 2017); b. On 18 August 2016 the key to the retaining walls was being excavated in accordance with the Engineering Design (Paragraph 15 of Garry Mostyn's Affidavit dated 13 April 2017); c. On 25 August 2016 the key to the retaining walls was being excavated in accordance with the Engineering Design (Paragraph 16 of Garry Mostyn's Affidavit dated 13 April 2017). d. On 1 September 2016 the key to the retaining walls was being excavated, and the RCC (recycled crushed concrete) was being placed, in accordance with the Engineering Design (Paragraph 19 of Garry Mostyn's Affidavit dated 13 April 2017). 8. On 13 August 2016 Garry Mostyn provided to Council a report regarding the progress of the engineering works, which stated that "…the substantive engineering works have commenced and are capable of completion by 2 September 2016" (per Garry Mostyn) (Document 7 of Exhibit "GM-1"). 9. On 29 August 2016 Garry Mostyn provided to Council a report regarding the progress of the engineering works, which stated that "…the substantive engineering works are almost completed. Engineering works which will remain on 2 September 2016 will be contouring of the surface with RCC, natural materials and blocks and batters…" (per Garry Mostyn) (Document 8 of Exhibit "GM-1"). 10. As at 2 September 2016 Dianne Gordon and Hugh Gordon had not completed the engineering works referred to in the Court Orders 8(a) to (j), contrary to Court Order 8(k) (Document 10 of Exhibit "GM-1"). 11. On 4 and 12 September 2016 Garry Mostyn provided to Council a report regarding the progress of the engineering works, which stated that "…the key is now complete and that work is progressing on the batters and block walls… Mr Gordon expects to have the engineering works completed by Friday, 30th September 2016, and I consider this achievable" (per Garry Mostyn) (Document 10 and 11 of Exhibit "GM-1"). 12. On 15 September 2016 Agustria Salim and Will Piper of PSM completed a site inspection of the placement of the RCC and the concrete blocks then being undertaken by Hugh Gordon. This inspection established that the work was continuing, broadly, in accordance with the Engineering Design (Paragraph 22 of Garry Mostyn's Affidavit dated 13 April 2017). 13. On 21 September 2016 Garry Mostyn provided to Council a report regarding the progress of the engineering works, which stated that the "…work is over half complete on the batters and block walls…" (per Garry Mostyn) (Document 12 of Exhibit "GM-1"); 14. On 23 September 2016 Will Piper of PSM completed a site inspection of the placement of the RCC and the concrete blocks then being undertaken by Hugh Gordon. This inspection established that the work was continuing, broadly, in accordance with the Engineering Design (Paragraph 24 of Garry Mostyn's Affidavit dated 13 April 2017). 15. On 23 September 2016 at approximately 4:19 pm Garry Mostyn received an e-mail from Hugh Gordon attaching the as built survey of the walls constructed on site prepared by Earth Surveying dated 23 September 2016 (the "As Built September Survey") (Document 13 of Exhibit "GM-1"). 16. On 26 September 2016 Garry Mostyn prepared a comparison survey of the As Built September Survey and the Engineering Design (the "Comparison Survey") (Document 14 of Exhibit "GM-1"). 17. The following correspondence was exchanged between Garry Mostyn and Hugh Gordon: a. On 26 September 2016 at approximately 8:33pm, Garry Mostyn emailed to Hugh Gordon a copy of the Comparison Survey (Document 15 of Exhibit "GM-1"); b. On 28 September 2016 at approximately 11:55am, Hugh Gordon emailed Garry Mostyn (Document 16 of Exhibit "GM-1"); c. On 28 September 2016 at approximately 1:52pm, Garry Mostyn emailed Hugh Gordon (Document 16 of Exhibit "GM-1"); d. On 28 September 2016 at approximately 3:14pm Hugh Gordon emailed Garry Mostyn. At approximately 9:23pm Garry Mostyn sent an e-mail to Hugh Gordon in response. (Document 16 of Exhibit "GM-1"). A copy of the above correspondence is annexed hereto and marked with the letter "A" and "B". 18. On 28 September 2016 Garry Mostyn provided to Council a report regarding the progress of the engineering works, which stated that "…the walls are completed essentially to the extent intended by Mr Gordon… Some battering of the site remains to be completed and this battering can be done by 30 September. On the above basis, I do not consider that all the enginering works required by the Orders will be complete by 30 September…" (per Garry Mostyn) (Document 17 of Exhibit "GM-1); 19. On 3 October 2016 at approximately 11:57am Garry Mostyn emailed to Council and Hugh Gordon a report, which stated that "…the works do not comply with the Orders with regard to overall gradient over a substantial portion of the site. As stated this can be remedied in a number of ways. I emphasise that if you landscape over the top of the works as they existed at the time of the survey it is unlikely that you will be able to comply with the Orders without removing that landscaping…". Garry Mostyn attached the correspondence between Garry Mostyn and Hugh Gordon dated 26 and 28 September 2016 setting out the engineering non-compliances (Document 19 of Exhibit "GM-1). 20. Between 21 October 2016 and 28 October 2016 further earthworks were carried out on the Land and into No 10 Ebsworth Street Redhead by Hugh Gordon, which were works not required by Order 8 and beyond them, without development consent being obtained for those works (the "October 2016 Earthworks") (Paragraphs 8 to 10 of Greg Brook's Affidavit dated 28 November 2016; paragraphs 11 to 13 of Paul McKenzie's Affidavit dated 21 February 2017; paragraphs 36 and 51 of Garry Mostyn's Affidavit dated 13 April 2017; and paragraph 4 of Garry Mostyn's Affidavit dated 19 April 2017). 21. On or about 26 October 2016 Earth Surveying retained by Hugh Gordon carried out a survey of the Land (Earth Surveying October Survey) (Document 23 of Exhibit "GM-1"). 22. On 2 November 2016 Peter Thompson and Brendan Pullan of City Projects - Survey (Council's Surveyors) carried out a detail survey of the boundary between 10 Ebsworth Street Redhead and 12 Ebsworth Street Redhead to identify the extent that the October 2016 Earthworks carried out on 12 Ebsworth Street Redhead have been carried out into 10 Ebsworth Street Redhead, which showed that: a. The distance that the earthworks have been carried out into 10 Ebsworth Street Redhead was up to 1.68 metres; and b. The depth that the earthworks have been carried out was between 0.32 to 1.67 metres (Affidavit of Peter William Thompson dated 10 November 2016). 23. On 3 November 2016 Will Piper of PSM completed a site inspection of the work as it then existed, including landscaping taking 59 photographs. Garry Mostyn reviewed photographs taken by Mr Piper which showed that the site had significant areas which did not comply with the Court Orders by reference to the works proposed in the Engineering Design. In particular, the photographs showed that earthworks had been carried out on the Land lowering the ground level along the northern boundary of the Land and into 10 Ebsworth Street Redhead. The cut that remains along the northern boundary does not comply with the landform that should have resulted from compliance with the Court Orders (Paragraph 4.f of Garry Mostyn's Affidavit dated 19 April 2017). 24. On 1 December 2016 Council's Notice of Motion for contempt that was filed on 10 October 2016 was listed for hearing. The Notice of Motion and Council's application for leave to amend the Statement of Charge were adjourned until 7 February 2017 with the following Directions made: a. Hugh Gordon and Dianne Gordon to provide a current survey of the site to Garry Mostyn and a site investigation by Mr Mostyn is to occur by 15 December 2016; b. Garry Mostyn to prepare a design in consultation with Hugh Gordon by 17 January 2017; and c. On 3 February 2017 a meeting onsite is to occur with Lake Macquarie City Council, the owners of No 10 and 14 Ebsworth Street, Redhead, Garry Mostyn and Hugh Gordon to discuss and agree upon the design. 25. On 9 December 2016 Earth Surveying carried out a survey of the site ("Earth Surveying December Survey") (Document 26 of Exhibit "GM-1"). 26. On 31 January 2017 this matter was re-listed before the Court for Hugh Gordon and Dianne Gordons' non-compliance with the above Directions on 1 December 2016. Hugh Gordon was directed to re-transmit a copy of the current survey of the site (per the Directions on 1 December 2016) to Garry Mostyn, copied to Council's Solicitor, with 'read' receipts, by close of business 1 February 2017. 27. On 1 February 2017 Hugh Gordon sent an e-mail attaching Earth Surveying December Survey dated 9 December 2016 to Garry Mostyn and Council's Solicitor. On the same date, Garry Mostyn sent an e-mail to Hugh Gordon acknowledging receipt of his e-mail and attached survey, which he had received previously on 11 December 2016 and told Hugh Gordon that "this is not the survey" he required pursuant to the Directions on 1 December 2016 (Document 28 and Document 29 of Exhibit "GM-1"). 28. On 6 February 2017 at approximately 11:26pm, Hugh Gordon sent an e-mail to Garry Mostyn, attaching survey data, surveyor's certificate and prior e-mail correspondence. (Document 30 of Exhibit "GM-1"). 29. On 7 February 2017 at approximately 7:50am, Garry Mostyn sent an e-mail to Hugh Gordon regarding Mr Gordon's above e-mail dated 6 February 2017 stating: "…Yes I did receive the survey and certificate on 31 October 2016, a quick review indicates: 1. The certificate does not include the statement required. 2. The contours are not always consistent with a maximum gradient as shown. 3. On that basis, it is likely that the surveyor cannot issue the certificate with the statement required. 4. There are no points on the surface of the vast majority of the site and thus any contours are interpolations from remote points. This is why I wanted to see the underlying survey, apparently there is none. 5. As it transpires the gradients you created on your neighbour's site (about which, I understand, the Court is rightly concerned) are far in excess of the Orders and are not shown on that survey. 6. See the attached emails which contrary to your assertion indicates that I am not, and was not, happy with the survey (more accurately non survey) supplied. These emails contain much of what I have said in the above paragraphs." (Document 32 of Exhibit "GM-1") 30. On 16 February 2017 this matter was re-listed before the Court. In the face of Hugh Gordon and Dianne Gordons' non-compliance with the Court Orders of 2 May 2016 and non-compliance with the Directions of 1 December 2016 and 31 January 2017, Council informed the Court that it would be filing a Notice of Motion seeking orders for substituted performance of works to be carried out by Council at the subject property. The matter was listed for hearing on 28 February and 1 March 2017. 31. On 28 February 2017, Peter Thompson and Christopher Rogers of City Projects - Survey carried out a detail contour survey of 12 Ebsworth Street Redhead and the excavated area into 10 Ebsworth Street Redhead (Paragraph 7 of Peter Thompson's Affidavit dated 13 April 2017). 32. On 28 February 2017, Agustria Salim and Andrew Tjoe of PSM, completed a site investigation of the Land, which established that the RCC had not been placed in accordance with the Engineering Design (Paragraph 55 of Garry Mostyn's Affidavit dated 13 April 2017). 33. On 28 February and 1 March 2017, Council's Notice of Motion seeking orders for substituted performance of works to be carried out by Council at the subject property was listed for hearing. On 1 March 2017, the Court noted by consent: 1. The parties agree that the Applicant is at liberty to use any survey carried out by it or on its behalf to request Garry Mostyn of PSM to advise a detailed list of non-compliances or provide certification that the works are generally in accordance with the Orders of 2 May, 2016; 2. Within 24 hours of the provision to the Applicant of any list of non-compliances or certification that the works are generally in accordance with the Orders of 2 May, 2016, the Applicant is to provide a copy to the Respondents. 3. The parties agree that the Respondents shall pay the reasonable costs of Mr Mostyn providing details of non-compliances with the Orders of 2 May 2016 or certification as required by those orders. Hugh Gordon and Dianne Gordon have not paid nor made contribution to the reasonable costs of Garry Mostyn providing details of non-compliances with the Court Orders (Paragraph 15.c of Benjamin Swain's Affidavit dated 19 April 2017). 34. On 6 March 2017, Peter Thompson and Christopher Rogers of City Projects - Survey prepared the survey plan titled Contour Plan of Lo 13 D.P. 3109 No 12 Ebsworth Street Redhead, dated 6 March 2017, Drawing No. 2651 Detail Survey, Version 2. The survey provided that the gradient of the land at 12 Ebsworth Street Redhead in the locations as follows (Annexure "A" of the Affidavit of Peter Thompson dated 13 April 2017): a. "Batter the area above the line marked "existing vegetation" on Lindsay & Dynan drawing C07 project reference 9890 revision 0 to a slope no steeper than 2.5H:1V…" is 1.85H:1V; b. "Batter the area to the west of any engineered terraces to the front property boundary of the Land to a slope no steeper than 2.5H:1V…" is 3.7H:1V. 35. On 10 March 2017, Garry Mostyn prepared plans, which illustrate the amount of work required on the Land to complete the Engineering Design in accordance with the Court Orders; which plans also took account of the extra work carried out by Hugh Gordon between 23 September 2016 and 26 October 2016. The cross sections show that in general the surface needs to be raised and flattened across the site and additional attention to where excavation has occurred across the northern boundary. The work required to address the extra work carried out by Hugh Gordon between 23 September 2016 and 26 October 2016 and to achieve the Engineering Design includes: a. Remove landscaping as required (most of site); b. Expose top of RCC or excavation line as shown on design. Note this is likely to require removal from site to waste or stockpile considerable fill, approx. 700 - 1,000 m3 off site. The existing concrete and sandstone blocks that are not as per the design shall be removed; c. Working from southern boundary, raise site with RCC to foundation level of each wall and construct wall backfilling with RCC as required; d. Along northern boundary, where excavation has occurred, excavate foundation for gravity wall, assume bottom course 2 wide and single block upper course. Place minimum of 300 RCC as foundation layer, then lower course then upper. Rear faces on boundary. (With consent this can be backfilled on neighbours land but this is not part of the 2 May 2016 Orders nor the Engineering Design); e. Complete placement of RCC and site or imported sand as required by the design. This will require return or replacement of material removed from site plus approximately an additional 1,000 m3 of fill. Of total fill returned assume approximately 500 m3 is RCC. The concrete and sandstone blocks shall be placed as per the design; f. Revegetate as per existing. The approximate estimate of cost excluding survey and inspections to address the extra work carried out by Hugh Gordon between 23 September 2016 and 28 October 2016 and to achieve the Engineering Design required by the Court Orders is $200,000 (Paragraph 52 and 53 of Garry Mostyn's Affidavit dated 13 April 2017). 36. On 13 March 2017 Garry Mostyn prepared a document detailing the non-compliances of the engineering works referred to in Orders 8 (a) to (j) of the Court Orders compared with the current as built on site by Hugh Gordon (Document 37 of Exhibit "GM-1"). Accordingly, Garry Mostyn is unable to issue a certificate to Council that all of the engineering works have been carried out in accordance with the Court Orders. 37. On 13 March 2017, the issue of substituted performance was mediated between the parties resulting in a Deed of Settlement being executed dated 13 March 2017 (the "Deed of Settlement"). The Deed of Settlement provided for terms as follows: 1. The First Respondent has agreed to the Applicant by its servant, agents, contractors or employees entering the land and do all things as are necessary or convenient to facilitate certification being issued for the stability of the land and the northern boundary by Garry Mostyn of PSM; 2. The Respondents have agreed jointly and severally to pay the sum of $50,000 or the actual cost of carrying out the works whichever is the lesser; 3. The sum of $50,000 is to be paid to the Applicant as to $10,000 within 2 weeks and the balance of $40,000 within 6 weeks. Such sum to be held by Council until certification is received from Garry Mostyn and is then to be drawn by it as provided in 2 above. There was also agreement reached at the mediation regarding the on-going contempt proceedings in that: a. Lake Macquarie City Council would serve proposed amendments to the Statement of Charge within 7 days; b. Hugh Gordon would review the amendments to consider his plea; c. The contempt charges against Dianne Gordon would be withdrawn if Hugh Gordon pleaded guilty to the charges in the Amended Statement of Charge. (Paragraph 10 of Benjamin Swain's Affidavit dated 19 April 2017). 38. On 24 March 2017 at approximately 10:34am, Council's Solicitor sent a letter by e-mail to Hugh Gordon serving an Amended Statement of Charge (Document 8 of Exhibit "BS-2"). 39. Hugh Gordon informed Council that he was not willing to enter a plea of guilty to the charges in the Amended Statement of Charge (Paragraph 13 of Benjamin Swain's Affidavit dated 19 April 2017). 40. On 27 March 2017 Council received the sum of $10,000 from Dianne Gordon and Hugh Gordon, which the Deed of Settlement dated 13 March 2017 (see paragraph 37 above) required to be paid within 2 weeks (by 27 March 2017); 41. On 11 April 2017 Garry Mostyn estimated the volumes of soil moved on the site at various times. The estimated volume of soil moved by Hugh Gordon on the site is as follows (Paragraph 51 of Garry Mostyn's Affidavit dated 13 April 2017): a. From 2 May 2016 up to the As Built September Survey dated 23 September 2016 was: i. Completed Fill: 600 m3 ii. Completed Cut: 108 m3. b. Between the As Built September Survey dated 23 September 2016 and the Earth Surveying October Survey dated 26 October 2016 when Hugh Gordon carried out earthworks contrary to the Engineering Design was: i. Completed Fill: 105.3 m3 ii. Completed Cut: 119.4 m3. of which on 12 Ebsworth Street was: A. Completed Fill: 105 m3 B. Completed Cut: 116 m3. and of which on 10 Ebsworth Street was: A. Completed Fill: 0.3 m3 B. Completed Cut: 3.4 m3. 42. On 19 April 2017 Garry Mostyn compared the As Built September Survey dated 23 September 2016, with the Earth Surveying October Survey and the Earth Surveying December Survey, which showed work had been carried out on the Land since 23 September 2016 to create a step between 10 Ebsworth Street Redhead and the Land and an unsupported boundary. These results are not consistent with the final landform provided for in the Engineering Design. (Paragraph 4.g of Garry Mostyn's Affidavit dated 19 April 2017). 43. On 19 April 2017 Council's Solicitor sent a letter by e-mail to Dianne Gordon and Hugh Gordon serving Amended Statement of Charge - First Respondent and Amended Statement of Charge - Second Respondent (Document 9 of Exhibit "BS-2"). 44. On 20 April 2017 Justice Moore granted leave to Council to amend the Statement of Charge in accordance with the Amended Statement of Charge - First Respondent, and Amended Statement of Charge - Second Respondent. Dianne Gordon then entered a plea of not guilty to the charges in the Amended Statement of Charge - First Respondent, and Hugh Gordon entered a plea of not guilty to the charges in the Amended Statement of Charge - Second Respondent. 45. On 26, 27 and 28 April 2017 Council received the sum of $20,000, $18,000 and $2,000 respectively, from Dianne Gordon and Hugh Gordon, which the Deed of Settlement dated 13 March 2017 (see paragraph 37 above) required to be paid within 6 weeks (by 24 April 2017). 46. On 25 May 2017 Garry Mostyn issued PSM's design for the remediation works. 47. On 14 June 2017 Garry Mostyn finalised PSM's design for remediation works after consultation with Paul McKenzie of 10 Ebsworth Street Redhead. 48. On 6 July 2017 this matter was re-listed before the Court. Justice Moore granted leave to Dianne Gordon to change her plea of 'not guilty' to 'guilty' to the charges in the Amended Statement of Charge - First Respondent, and Hugh Gordon to change his plea of 'not guilty' to 'guilty' to the charges in the Amended Statement of Charge - Second Respondent. 49. On 7 July 2017 Council's Solicitor emailed to Hugh Gordon and Dianne Gordon a copy of PSM's design for the remediation works. 50. TO BE INCLUDED: - Details of Council's Request for Quotations; - Details of documents sent to Hugh Gordon and Dianne Gordon; - Details of completed remediation works. 1. It is to be observed that, in light of my rejection on 29 August 2017 of the Prosecutor's motion to vacate the hearing dates, provision of the material foreshadowed in paragraph 50 of the SOAF was unnecessary. The nature of these contempt proceedings. 1. In Council of the City of Sydney v The Owners of Strata Plan 18820 [2017] LEC 81 (City of Sydney), Robson J concisely summarised the nature of contempt proceedings. At [35] to [37], he said: 35. … 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 Ltdand Rappaport (No 3) [2013] NSWLEC 35 at [23] (Biscoe J). However, disobedience with regard to a Court Order made in civil proceedings may become a criminal contempt if, per Mosman Municipal Council v Kelly (No 3) [2009] NSWLEC 92; (2009) 167 LGERA 91 at [58] (Biscoe J): (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. 36. Contempts fall within one of three classes, technical, wilful or contumacious. Contempts falling within the class referred to as "technical" are said to refer to breaches that were casual, accidental or unintentional. 37. Wilful contempt is where the disobedience is more than casual, accidental or unintentional, but is not contumacious. Contumacious contempt is where there is a specific intention to disobey a court order or undertaking to the Court, which evidences a conscious defiance of the Court's authority. InRegistrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 at 315, Kirby P said: This class of contempt (contumacious) is reserved to cases where the behaviour of the contemnor has been shown to be aimed at the integrity of the courts and designed to degrade the administration of justice, as distinguished from a simple interference with property rights manifested by a court order. (Citations omitted) 1. I gratefully adopt his Honour's summary. 2. For the purposes of these proceedings, it is appropriate to note, at this point, that the SOAF discloses that, from 28 September 2016 onward, Mr Gordon was on notice from Mr Mostyn that the works that Mr Gordon proposed to carry out (and, in fact, carried out in early October 2016, as later discussed) would be in breach of the orders of 2 May 2016. 3. As a consequence, at this time, it is sufficient to note that this demonstrates that, for that aspect of the breach of the orders as charged against Mr Gordon, his actions were a deliberate and knowing flouting of the orders. It will be necessary to discuss this conclusion concerning Mr Gordon (and what conclusion should be drawn with respect to Mrs Gordon as a consequence of this behaviour by Mr Gordon) in some more extended detail later. 4. It is also sufficient for the present purposes to observe that Mr Gordon's conduct can only, therefore, be classified as wilful and contumacious, falling within the ambit of the most serious type of contempt. The sentencing process 1. In City of Sydney, Robson J also set out, at [42] and [43], the broad sentencing framework for contempt matters. He said: 42. The relevant sentencing principles in civil contempt cases are well known. The underlying purpose of the Court's power to punish for contempt is to protect the effective administration of justice by demonstrating that the Court's order will be enforced; see Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46 at 106 (Gibbs CJ, Mason, Wilson and Deane JJ, with Brennan J agreeing on this point). 43. 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. For Mrs Gordon, as dealt with in my specific consideration of her circumstances, those factors identified as 1, 2, 6, 7, 8, 9 and 10 are relevant, in my opinion. For Mr Gordon, as dealt with in my specific consideration of his circumstances, a narrower range of those factors - being those identified as 1, 2, 8, 9 and 10 are relevant, in my opinion. 2. As I said in Cumberland Council v Khoury (2017) 222 LGERA 78; [2017] NSWLEC 14 at [42], and as Robson J said in Canterbury City Council v Ali Ahmed [2016] NSWLEC 160 at [19], the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act) does not apply to sentencing for contempt but provides, by analogy, a useful framework for consideration of the objective and subjective factors to which it would be otherwise mandated to have regard had the Sentencing Procedure Act in fact applied. The entry of the guilty pleas 1. As I have earlier noted, Mrs and Mr Gordon initially pleaded not guilty to the contempts charged against them. However, as also earlier noted, on 6 July 2017, they sought and were granted leave to withdraw their "not guilty" pleas and substitute pleas of "guilty". Although their first pleas, on 20 April 2017, were some more than four months after the first return date of the charges filed by the Prosecutor (that being on 1 December 2016), the entry of their pleas on the first occasion that this occurred can be explained by two aspects of the proceedings. 2. The first was the earlier discussed filing of the further Notice of Motion by the Prosecutor seeking orders that it be permitted to enter the site and carry out remedial works. 3. Second, as a result of that failed attempt at seeking the Court's intervention to enable proactive works to be undertaken on the site by the Prosecutor, I referred the matter to mediation, as earlier discussed, a mediation which led to the Deed of Settlement of 13 March 2017. 4. These two intervening processes lead me to the conclusion that the entry of Mrs and Mr Gordon's guilty pleas of 20 April 2017 can reasonably be regarded as the earliest date upon which it was appropriate for them to enter pleas. 5. The decision by Mrs and Mr Gordon, subsequently, to seek to be granted leave to withdraw those "not guilty" pleas and substitute "guilty" pleas on 6 July 2017 means that those "not guilty" pleas were not entered at the earliest opportunity, but that the gap is only one of 11 weeks. 6. I have earlier noted, by analogy, that the Sentencing Procedure Act provides useful guidance as to how I should approach this sentencing process. One of the provisions of the Sentencing Procedure Act is s 22, a provision that requires that an accused who pleads guilty is to be given a discount on the penalty that would otherwise apply. The understood purpose for this is to reflect the utilitarian value to the system of justice of not requiring a fully contested trial to take place. The guideline decision of the Court of Criminal Appeal, in R v Thompson; R v Houlton 49 NSWLR 383; [2000] NSWCCA 309 (R v Thompson), makes it clear that, ordinarily, a 25% discount would be granted if guilty pleas were entered at the earliest opportunity. 7. In these circumstances, given the earlier procedural history to which I have referred, and the fact that Mrs and Mr Gordon are self-represented, I have concluded that, despite the gap after their initial pleas, the significant utilitarian value of the combination of the guilty plea by each of them; their subsequent (although on differing dates) adoption of the Prosecutor's Statement of Facts to make it a Statement of Agreed Facts; and the decision by Mrs and Mr Gordon that they did not require any of the Prosecutor's witnesses for cross-examination (meaning that what had been set down as a four-day contested hearing became a sentencing hearing completed in less than a day) means that I should grant them the full 25% discount in recognition of these factors. For the reasons set out in each of their separate sentencing considerations, I have therefore applied that discount. Costs 1. The Prosecutor seeks orders against both Mrs and Mr Gordon that they be liable for the Prosecutor's costs of these contempt proceedings on an indemnity basis. It is to be noted that these contempt proceedings were commenced in October 2016, with a first return date, before me, on 1 December 2016. 2. Within the time period that these contempt proceedings were on foot, the Prosecutor filed the further Notice of Motion dealt with at [8] to [11]. 3. As there noted, this resulted in a mediation conducted by (then) Registrar Gray on 13 March 2017. That mediation was successful in addressing the question of how the site might be remediated; who would undertake the work; and what would be the financial contribution by Mrs and Mr Gordon for the carrying out of that work. I have, earlier, set out the terms of the recitals to, and operative provisions of, the Deed of Settlement which gave effect to the outcomes of that mediation. 4. As I observed to Mr McEwen during the course of the hearing on 11 September 2017, I did not consider that the ill-founded enforcement motion or the failed motion by the Prosecutor seeking the vacating of the sentencing hearing dates could properly be regarded as forming part of the potential scope of any costs order arising out of these contempt proceedings. 5. The costs of those two separate elements are, therefore, to be excluded from the costs orders that I will make against each of Mrs and Mr Gordon in these contempt proceedings. 6. Although there is no hard and fast rule that mandates that costs be awarded on any indemnity basis against those found to be in contempt of court, the Prosecutor in such matters may reasonably expect that this would be the case unless there were some reason to depart from that position (see AGL Energy Ltd v Hardy (No 3) [2017] FCA 952 at [8] and [9] - O'Callaghan J). Such an outcome is appropriate, here, because the Prosecutor is a public authority seeking to uphold the statutory planning regime and the Court's role in enforcing compliance with it and with the Court's own orders. 7. In these contempt proceedings against Mrs and Mr Gordon, there is no reason why it would be inappropriate to make costs orders against them on an indemnity basis. 8. In particular, the Prosecutor, as a public authority responsible for the administration of planning laws within its local government area, is not seeking vindication of some private right by commencing and prosecuting these contempt proceedings. The Prosecutor is seeking to uphold the integrity of the planning system and, by doing so, not only proposing that Mrs and Mr Gordon be punished for their breach of court orders (orders intended to address breaches of the planning system) but also to send a powerful message of general deterrence to warn others against doing so. 9. In this regard, I expressly note that costs are compensatory of the Prosecutor and are not punitive in nature (Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59). 10. However, as I also discuss in the context of the instinctive synthesis process which I must undertake to arrive at the appropriate sentences for each of Mrs and Mr Gordon, by analogy, again, with prosecutions for breaches of the statutory regimes for the framework for planning and environmental law in New South Wales, the amount of costs orders to be made are to be taken into account in determining the burden that will be imposed, in totality, on a person against whom a costs order is to be made (EPA v Barnes [2006] NSWCCA 246). 11. In circumstances such as these, where the costs order is to be on an indemnity basis against each of Mrs and Mr Gordon rather than on an "as agreed or assessed" basis, the financial impact of the order on each of them will be more burdensome than might otherwise have been the case. 12. I have, therefore, concluded that it is appropriate to award the Prosecutor its costs against Mrs and Mr Gordon on an indemnity basis, but that those costs orders should exclude all costs associated with the preparation and hearing of the ill-fated motion earlier discussed and preparation for and all costs associated with the pre-trial motion seeking the vacating of the hearing dates. Consideration of relevant matters for Mrs Gordon Introduction 1. As earlier discussed, my consideration of factors relevant to the sentencing process for Mrs Gordon are also to be addressed by analogy to the relevant provisions of the Sentencing Procedure Act. For matters such as costs orders, the position for Mrs Gordon is identical to that for Mr Gordon, and was earlier dealt with in a compound consideration. 2. However, there are objective and subjective factors concerning Mrs Gordon which require to be considered in a fashion distinct from such factors as arise in Mr Gordon's case. 3. Importantly, it is to be noted that Mrs Gordon elected to give evidence, having filed and served an affidavit sworn 18 August 2017. Although Mrs Gordon had some legal assistance from the Hunter Community Legal Centre in the preparation of this affidavit, that fact plays no part in my consideration of its contents. 4. Mr McEwen initially indicated objection to paragraphs 26 and 27 of Mrs Gordon's affidavit. These paragraphs were in the following terms: 26. I am also concerned that if I am convicted of these charges that I will be prevented from being able to travel to Canada to attend my son's wedding. Annexed hereto and marked "D" is an information sheet on overcoming criminal convictions. 27. Annexed hereto and marked "E" is a print out from the Canadian Criminal Code showing that Contempt of Court is a criminal offence under their Criminal Code. 1. However, when I explained the approach I proposed to take to these paragraphs, Mr McEwen withdrew his objection to them. I said, relevantly (Transcript, page 40, lines 11 to 30): HIS HONOUR: … I've carefully examined the documents that are those upon which Ms Gordon reaches her concern and it would be open to me, would it not, in my decision if I were to admit those documents to express an opinion not as to the Canadian law but as to what those documents disclose with respect to her concern? MCEWEN: In so far as they give foundation to her apprehension, yes. HIS HONOUR: Yes, indeed. MCEWEN: If that's how it's treated, I don't press the-- HIS HONOUR: I propose to permit that on the basis that they are the foundations of her concern rather than a statement as to the, comprehensively as to the current state of Canadian law as to contempt of court criminal offences and persons being permitted to enter Canada on the basis of either of those events. 1. Mrs Gordon was not required for cross-examination. Therefore, to the extent that her affidavit puts matters as facts, those facts are uncontradicted and only stand to be weighed in my assessment, to the extent which I have (or do not have) sufficient information to enable a proper assessment to be made. 2. As to matters which are clearly matters of Mrs Gordon's belief (such as the two paragraphs quoted above), these are matters for my assessment as to whether or not I am able to conclude that there is some reasonable and realistic basis for the belief that Mrs Gordon holds. 3. Such more general factors will be dealt with after I have considered the objective factors concerning her offending conduct and her individual subjective factors arising, by analogy, from s 21A(3) of the Sentencing Procedure Act. The objective factors concerning Mrs Gordon's offending conduct 1. It is appropriate to commence my consideration of these objective facts by setting out the terms of how the Prosecutor submits I should regard her conduct. In this regard, the Prosecutor's written submissions said: Culpability of Mrs Gordon 26. The culpability of Mrs Gordon should be separately considered. 27. Her culpability resulted from a failure to confront and control the actions of the Mr Gordon. Mrs Gordon had sufficient knowledge that the works would not be completed by the time required under the May Orders, could not be certified, and that additional works carried out were not authorised by the May Orders or the EPA Act. She has accepted responsibility for that non-compliance. 28. The Prosecutor does not submit that her conduct was deliberate to the same extent as for Mr Gordon. However, as there was knowledge of the conduct, and a failure to act to either prevent it or to demonstrate to the Court that her primary concern was to abide by the Court's orders, her conduct was intentional. 29 Mrs Gordon has given sworn evidence that she is remorseful for that conduct. Summary of Prosecutor's Submissions on Mrs Gordon 30. In summary, Mrs Gordon's conduct was: (a) Intentional in that she knew that she was responsible to comply with the May Orders but failed to take steps to ensure compliance and stood mute while breaches of the May Orders occurred by the conduct of Mr Gordon; and (b) This resulted from her failure to control or intercede with Mr Gordon. 1. In the Prosecutor's closing submissions, Mrs Gordon's conduct was touched on but lightly, with what was said being in the following terms (Transcript, page 12, lines 7 to 31): …. And as to Mrs Gordon's culpability, she'll be considered separately. Her culpability resulting from a failure, and she's the owner of the land, a failure on her part to confront and control the activities of Mr Gordon. We submit she had sufficient knowledge that the works would not be completed by the time required under the May orders, could not be certified, and that additional works carried out were not authorised by those orders and in breach of the EP&A Act. She has accepted responsibility for that non‑compliance. The prosecutor does not submit that her conduct was deliberate to the same extent as Mr Gordon, however there was knowledge of the conduct and a failure to act to either prevent it or demonstrate to the Court that her primary concern was to abide by the Court's orders, thus we submit her conduct was intentional and we made the submission earlier about standing by or standing mute. She has given sworn evidence though that she is remorseful and you find that in paragraph 2 of her affidavit, your Honour. HIS HONOUR: Yes. MCEWEN: In summary, Mrs Gordon's conduct was first, we submit, intentional in that she knew she was responsible to comply with the May orders but failed to take steps to ensure and she stood mute whilst the breaches occurred by the conduct of Mr Gordon, and secondly, this resulted in a failure to control or intercede with Mr Gordon. As to the Fines Act, specific evidence we submit is required for the Court to make any favourable findings under section 6. 1. Relevantly, the SOAF, quite properly, focuses on Mr Gordon's conduct, as the principal actor in the events (both acts of omission and omission) that bring Mrs and Mr Gordon before the Court in these contempt proceedings. It is fair to say that the SOAF does not deal specifically with any separate conduct of Mrs Gordon; it only does so in terms of her association with her husband. 2. Mrs Gordon's affidavit deals with her attitude to and knowledge of what occurred between Mr Gordon and the Prosecutor, and about Mr Gordon's activities on the site, as follows: 3. Shortly after the initial Court proceedings ended I travelled to South Australia to take care of my mother who had had a stroke. I was in South Australia from the 9 May 2016 to 26 July 2016. 4. During this time, I spoke to the Second Respondent over the telephone weekly. I remember that we did talk about the Redhead Property but I was extremely stressed at this time dealing with my mother's situation as well as suffering from extreme anxiety and depression and cannot recall the specific details of what we talked about. 5. When I returned to Newcastle from South Australia on 26 July 2016 my mother came with me so that I could care for her as she had been medically assessed that she would be no longer be able to live independently and needed full time care. 6. I returned to work on 3 August 2016. I drove past the Redhead Property on my way to and from work and could see that the Second Respondent was undertaking works on the Redhead Property. 7. At this time I relied on the Second Respondent to complete the necessary works as required. The Second Respondent told me that he was in contact with Garry Mostyn and things were progressing well. 8. In October 2016 I went with the Second Respondent to the Redhead Property in order to undertake further works in an effort to comply with the orders of the Court made on 2 May 2016. The Second Respondent and I spent a number of days trying to manually grade the slope and other landscaping works. All the work I undertook was at the direction of the Second Respondent. 9. I have not been cc'd in any e-mail correspondence that was sent to the Second Respondent. The Second Respondent collects the mail from the Post Office Box and will provide me with a copy if I ask him for a copy. 10. I have asked the Second Respondent to keep me updated about what was happening with the Redhead Property but this has sometimes been difficult to achieve due to the high level of stress between the two of us. 1. In her oral submissions, she said (Transcript, page 41, line 39 to page 42, line 10): … in the breach of being late, Mr Mostyn's plan arrived late in the beginning. It was six - it took him six weeks to complete the plan, which left Hugh four weeks to complete the works, which put us under intense pressure. In the paragraphs that are dealing with me failing to take steps to ensure compliance, paragraph 30(a) and (b), I took steps on numerous occasions to motivate Hugh to keep working, checking in on how the - how the progress was going. I heeded his Honour's advice to apply the cattle prod. However, I have no control over his choices or behaviours or him. I told - he told me that he was on track and I read the progress reports from Mr Mostyn that confirmed this. The - the first indication from Mr Mostyn that the works may not comply came after the four months due date around 2 September. Up until then, I thought everything was going okay. He then told us that he couldn't certify the works up - up until after the due date that arrived to - to us. I've used my best efforts to comply by checking regularly with Hugh that the works that he was doing were - he was undertaking them and that they were on time. The technical aspects are beyond me. I relied on Hugh and the engineers, and as I said earlier, I thought everything was okay. As far as the unlawful works carried out by Hugh, I asked him at the very beginning when he said he's starting more works, I said to him, "Do you have consent to - to do those works?" and he replied, "Yes." 1. This position of, in effect, delegating authority to Mr Gordon and being forced to be, and/or accepting of being, largely in ignorance of that which was going on, is entirely consistent with my findings concerning her behaviour in my earlier decision at [109]. Whilst these elements of my earlier decision find no place in my assessment of the limited extent to which she was aware of, and involved in, her husband's activities after the period founding my May 2016 orders, it is consistent with her evidence concerning the post 2 May 2016 position. 2. It is reasonable to conclude that, in effect, she was largely a "passenger" in Mr Gordon's enterprises concerning 12 Ebsworth Street and that she was submissive to her husband's dominant personality in this regard. Mrs Gordon's subjective factors Introduction 1. I now turn to consider Mrs Gordon's subjective factors, adopting, by analogy, the factors that are set out in s 21A(3) of the Sentencing Procedure Act. Although not mandated for consideration in proceedings such as these, they provide a comprehensive guide to a range of factors appropriate to be considered. The list, as relevantly applicable, is not exhaustive and other matters (such as Mrs Gordon's fears, as later discussed) are also relevant. Prior convictions 1. Mrs Gordon has no prior convictions and, thus, this constitutes a positive factor in her favour. Mrs Gordon's character 1. Mrs Gordon has provided four character references appended to her affidavit. Whilst none of these references expressly acknowledge that the referee has had the circumstances that bring Mrs Gordon before the Court told to that referee and, therefore, this somewhat limits their potency, nonetheless, each of the references speaks highly and positively of various aspects of Mrs Gordon's character. They are also to be regarded as positive factors for my consideration. Contrition and remorse 1. In her affidavit, Mrs Gordon says: 2. I acknowledge that I failed to ensure that the orders of the Court made on 2 May 2016 were complied with and I sincerely regret that. 1. In her oral submissions during the sentencing hearing, she also said (Transcript, page 42, lines 27 and 28): FIRST RESPONDENT: Your Honour, I am truly regretful and sorry for all that has happened and the part that I've played in this. 1. Finally, the recitals of the deed Mrs Gordon entered into at the mediation of 13 March 2017 and the financial contribution to future remediation works (albeit to only a limited extent, given the inevitability of her responsibility as the owner of the site imposing significant remediation burdens on her) is also to be regarded as a positive in her favour. Assistance to the Prosecutor 1. Mrs Gordon has cooperated with the Prosecutor by adopting the SOAF and she did not, during the course of her oral submissions, say anything which could be regarded as seeking to resile from anything contained in that agreed document. Other relevant subjective factors 1. Mrs Gordon is a 62-year-old woman, who is currently the carer for her elderly mother who is dependent on Mrs Gordon for assistance. This position has only recently arisen as a consequence of Mrs Gordon's mother's illness. 2. Mrs Gordon has also suffered a number of bereavements including, particularly, the accidental death of her 10-year-old grandson. These vicissitudes of life, however, need play no part in my assessment of the appropriate penalty to impose on her, given the conclusion which I have reached about the appropriate outcomes for her on each of the three contempt charges to which she has pleaded guilty. Mrs Gordon's fears Introduction 1. In her affidavit, Mrs Gordon said that she would lose her job if she was convicted and she would be unable to visit her adult son who lives in Canada (and, particularly, she would be unable to attend his wedding which, it is to be inferred, is to be anticipated in the foreseeable future). 2. To the extent that she genuinely holds these fears (and, in making this comment, I am not to be taken as suggesting that she does not), such fears are only potentially to be taken into account if there is a rational basis to conclude that they might be realised (by analogy with New Century Developments Pty Limited v Baulkham Hills Shire Council (2003) 127 LGERA 303; [2003] NSWLEC 154 per Lloyd J at [61]). It is, therefore, appropriate for me to address each of them, briefly. Loss of employment 1. Mrs Gordon works as a counsellor, dealing with a wide variety of human problems experienced by clients of the organisation which employs her. She has been employed by the organisation for over eight years. 2. Amongst the four character references appended to her affidavit, one of them is signed jointly by three senior managers of her employer organisation. The reference is in glowing and entirely supportive terms. 3. Although none of the references specifically acknowledge that the nature of these proceedings have been drawn to the attention of the relevant referees, there is nothing in her employer's reference that would conceivably suggest that, if the organisation was aware of the proceedings and the outcome was that Mrs Gordon was convicted, there would be any consequences for her in her employment. 4. Similarly, there is nothing in the limited nature of the material I have concerning the detail of her employment that could cause me to conclude that having a "clean record" was a mandatory prerequisite for remaining in that employment. Entry to Canada 1. The second fear expressed by Mrs Gordon was that convictions arising from these contempt charges would be required to be disclosed to Canadian authorities at the time of visiting her adult son. It was her understanding that convictions disclosed to the Canadian authorities would act to preclude her being permitted entry to that country. These fears were set out in her affidavit at paragraphs 26 and 27, earlier reproduced at [75]. 2. The basis of her belief is derived from a number of pages of commentary obtained from the internet concerning the impact of criminal convictions on persons being permitted entry to Canada. 3. Although I have earlier noted that Mrs Gordon had assistance from the Hunter Community Legal Centre in the preparation of her affidavit, there is no suggestion that she has received legal advice concerning her apprehensions about whether or not she would be permitted entry to Canada if convicted. However, I am satisfied it is appropriate to respond to these fears on the basis that, whilst she may have had some assistance in searching for and obtaining the Canadian legal material appended to her affidavit, she has not received any legal advice about that material. 4. I have carefully read the material contained in those appended documents. It is unnecessary for me to provide any detailed analysis of it. It is sufficient for me to observe that I could see nothing in that material that would lead to the conclusion that convictions for contempt of court for failure to abide by orders made in civil proceedings would require to be disclosed to Canadian authorities or, if so disclosed, would have any adverse impact on her ability to be permitted to enter Canada. Conclusion 1. For the reasons set out with respect to the fears expressed by Mrs Gordon concerning her employment and her ability to be permitted to enter Canada should she seek to travel there to visit her adult son, those fears have no evidentiary foundation supporting them in the material before me. As a consequence, I pay no heed to those fears in this sentencing process. Deterrence for Mrs Gordon Specific deterrence 1. I am satisfied, in light of the material available to me and the limited role played by Mrs Gordon in circumstances where she has been dominated by her husband, that there is no need to impose any penalty to deter Mrs Gordon, personally, from acting in a similar fashion in the future. General deterrence 1. In circumstances where Mrs Gordon comes before the Court as a consequence of what are, primarily, wilful acts and omissions of her husband and where, as I have found, he has been the dominant personality, effectively imposing his courses of conduct on his wife, any lessons of general deterrence to be drawn from these proceedings are going to be those which arise out of the processes culminating in his sentencing rather than the approach to be taken to sentencing Mrs Gordon. 2. I consider, when viewed in this light, there is no general deterrence value in proceeding to a conviction for each of the offences with which Mrs Gordon is charged. 3. To the extent that some measure of general deterrence may arise from her being charged with breaches of orders of the Court; her pleading of guilty to each of the three offences; and my finding, in each instance, that the SOAF provided a proper basis for me to accept that each plea had a proper factual foundation is sufficient without me needing to proceed to conviction on any of the three charges. Mrs Gordon and totality and accumulation and her guilty pleas 1. Given the common outcome I have determined is appropriate for Mrs Gordon with respect to each of the three charges to which she has pleaded guilty, questions of totality and accumulation of sentence or of any discount arising from her entry of guilty pleas to each charge do not arise for consideration. Sentencing Mrs Gordon 1. In undertaking my instinctive synthesis of the various factors requiring consideration in determining what penalties (if any) should be imposed on Mrs Gordon with respect to each of the three charges of contempt to which she has pleaded guilty, there are three particular and important factors that I need to take into account in my assessment. 2. These are: 1. The primary driver of the omissions and acts which give rise to the three charges are those of her husband, as discussed elsewhere. As there dealt with, Mr Gordon is clearly a dominant and stubbornly determined personality, with Mrs Gordon, relevantly to matters with which I am dealing, passively accepting that which Mr Gordon has determined to do without regard to any warning that may have been given to him about the consequences of his proposed activities. It is also appropriate to conclude that, for the most part, Mr Gordon had not informed his wife of the full scope of the activities he proposed to undertake, nor informed her of much (if not all) of the detail of communications between himself and the Prosecutor or himself and Mr Mostyn; 1. Mrs Gordon's involvement in the specific activities undertaken on the site have been, at their highest, of an extremely limited nature. She is therefore not to be regarded as having made any significant physical contribution whatsoever to the present unsatisfactory state of the site; and 2. Mrs Gordon has powerful subjective factors, earlier outlined, that weigh in her favour as part of my instinctive sentencing synthesis. 1. Although the provisions of the Sentencing Procedure Act do not apply in these circumstances, nonetheless, by analogy, I am satisfied that it is also appropriate to have regard to it in considering the sentencing outcome I determine is appropriate for Mrs Gordon with respect to each of the charges she faces. The Sentencing Procedure Act, in s 10, permits a person undertaking the sentencing considerations to conclude that a finding of guilt is appropriate but that the entry of a conviction would not be appropriate under the circumstances. 2. I consider that that position arises here with respect to all three charges to which Mrs Gordon has pleaded guilty. I am satisfied that the SOAF provides a proper factual basis for me to conclude that each of her guilty pleas has been entered appropriately. However, weighing up all the factors I need to consider as to what should follow from those pleas, I have concluded that it would not be appropriate to proceed to convict her on any of the charges here involved. 3. I have no evidence that would engage my consideration of Mrs Gordon's capacity to pay pursuant to s 6 of the Fines Act (the attachment of a copy of a pay slip being an entirely inadequate and incomplete disclosure of her financial position - see the nature of testing of the adequacy of financial information in Wollongong City Council v Eldridge [2017] NSWLEC 35 at [180] to [205], for example). Nonetheless, it is reasonable to assume that exposure to an indemnity costs order that may be approaching or exceeding $140,000 is, in itself, a very significant burden to which additional financial penalties would have contributed insignificantly. 4. In reaching my conclusion not to convict, there are two observations I should record: 1. first, for the reasons earlier discussed, I have paid no heed to the fears that Mrs Gordon has concerning her expectation that she would lose her employment or that she might be banned from entering Canada to visit her adult son; and 2. second, the financial burden that is to be imposed by the making of the indemnity costs order against her, as well as her husband, is a significant factor to be considered in circumstances when, had I proceeded to conviction on any of the charges, the only reasonably possible penalty she might have faced would have been a fine. Consideration of relevant matters for Mr Gordon Introduction 1. I now proceed to consider the position of Mr Gordon through a process analogous to that which I would apply had I been undertaking a sentencing process pursuant to the provisions of the Sentencing Procedure Act. Mr Gordon's plea of guilty 1. As earlier noted, on 6 July 2017, Mr Gordon entered a plea of guilty to the three charges of contempt of this Court that had been laid against him by the Prosecutor. I have carefully read the terms of the Statement of Facts agreed to by Mr Gordon and prepared by the Prosecutor. I have also read the terms of the entirety of my orders of 2 May 2016, as those orders serve as the foundational basis for the charges which have been laid against Mr Gordon. 2. On the basis of the SOAF and of my orders of 2 May 2016, I am satisfied that Mr Gordon's plea of guilty has been entered on a proper basis and that it is appropriate to convict him of each of the charges to which he has pleaded guilty. The difference between the charges 1. With respect to the first and second of the charges laid against Mr Gordon, it is clear that, in a qualitative sense, they differ from the third of the charges laid against him. This is because there is a tipping point in his conduct, a tipping point which follows from the correspondence (discussed in more detail below) between Mr Gordon and Mr Mostyn in the period 26 to 28 September 2016. 2. In short, although Mr Gordon was significantly behind schedule in the carrying out of the works required by Order 8(k) of the orders of 2 May 2016, the evidence discloses that the activities which he was carrying out were in compliance with the work required by the orders. This slippage led to the failure to be able to obtain the certificate required by Order 8(l) and provide it to the Prosecutor 3. However, as also later discussed, this compliance position changed after what I have described as the tipping point, so that Mr Gordon can only be regarded as going off on a frolic of his own concerning the works he actually undertook post 28 September 2016 - without authority from the orders of 2 May 2016 and without development consent being granted by the Prosecutor, as the relevant responsible consent authority, and despite Mr Mostyn's warnings. The approved works and the time slippage 1. The SOAF sets out, between paragraphs 3 and 16, the relevant timetable aspects which occurred between my making of the orders on 2 May 2016, and the e-mail exchanges between Mr Gordon and Mr Mostyn of 26 and 28 September 2016. Those elements of the SOAF can readily be understood as they were reproduced earlier. 2. Although I have no evidence from Mr Gordon, I am satisfied that the slippage in the timetable was not entirely unreasonable and was also the subject of forbearance by the Prosecutor, as the inspection process, conducted by employees of PSM Consulting Engineers, under Mr Mostyn's direction, together with Mr Mostyn's reporting to the Prosecutor, enabled the Prosecutor to be confident that, although delayed, the remediation works were proceeding in accordance with the plan mandated by my orders of 2 May 2016. 3. The consequence of this position is that, although Mr Gordon was in breach of the completion date requirement established by Order 8(k), this breach, although continuing to expose the uphill neighbours, Mr and Mrs McKenzie, to the risks that arose from Mr Gordon's past activities, is of a comparatively minor nature. This position places Charges 1 and 2 in a much less serious category than Charge 3. Mr Gordon's works after the 28 September 2016 e-mail from Mr Mostyn (Charge 3) 1. The contrast between the position leading up to the 26 and 28 September 2016 e-mail correspondence and that which is disclosed by that correspondence, particularly Mr Mostyn's incorporated comments transmitted to Mr Gordon on 28 September 2016, could not be greater. 2. To commence this analysis, it is necessary to repeat the terms of the e-mail of 26 September 2016. The e-mail of 26 September 2016, and its attached plan, formed Annexure A to the SOAF. The 26 September 2016 e-mail from Mr Mostyn to Mr Gordon was sent on Monday, 26 September 2016 at 8.33 pm. It read: Hugh, Find attached our comparison of the survey supplied on Friday last with the design submitted to LGL/LMC. Note that the survey (red and green contours) is to AHD and the design levels (grey lines) from CSG are to a local site datum which is 1.697 m below AHD. I have marked the crest of the walls from A to E. The red lines are 2.5 m interval contours from your survey, to maintain a maximum gradient of 2.5:1 as required by the Orders, these contours should be 6.25 m apart. You will see in magenta that over most of the site the contours are closer together than this, ie the local gradient is steeper than 2.5:1. The bold red numbers show the approximate difference between the survey and design (negative indicating the survey is below the design level). I discuss this below. The heavy black lines the toes of walls and the heavy blue lines the crest of walls. As previously discussed I am not concerned regarding the spatial disposition of the walls with respect to the design. You will also see that the crest of Wall D is at approximately the design level. The levels along the northern boundary are approximately as per design and cause no issues. You will note that the design adopted contours approximately perpendicular to the northern boundary and thus could accommodate the overall slope required. The recent survey indicates that the actual contours run NW to SE and thus are considerably steeper than design. There are several ways in which the current topography can be altered to comply with the Orders (ie maximum grade), most will require an additional course on each wall or east west returns added to the northern end of the walls similar to those in the design. Can you please consider the above and advise how you intend to adjust the geometry to accord with the Orders and the time it will take to do so. If this involves walls more than 2 m high, we will assess whether this has any stability implications. I issued a progress report COB last Wednesday, and will do so this Wednesday. Garry Mostyn Chief Engineer 1. It is appropriate to note that the above e-mail had a plan of the site attached to it, a plan marking the required location of various retaining wall structures and identifying contours across the site and a range of spot heights. 2. It is next necessary to reproduce the terms of the e-mail chain between Mr Mostyn and Mr Gordon - the final e-mail being one which incorporated comments from Mr Mostyn about the works that Mr Gordon proposed to undertake. Although e-mail chains print as most recent first, I have reproduced the exchange in proper chronological order. This e-mail trail formed Annexure B to the SOAF. 3. The first e-mail in this chain was that of 26 September 2016 reproduced above 4. The second e-mail in this chain was sent by Mr Gordon to Mr Mostyn on Wednesday, 28 September 2016 at 11.55 am. It read: Garry, Thank you for your comparison of the survey data with the design submitted to LGL/LMC. As you are aware, the survey data provided to you does not represent the final topographic levels. Soils have been heaped along the northern boundary which has the effect of skewing the contours. I have proceeded with the build of the design on the basis that slope stability is the critical and foremost issue to be addressed. As you have acknowledged, the spatial location of the block walls varies from the design. Similarly, I expect some variation in the final topographic contours (0.5 to 1m lower) as set-out in the design. I am of the view that compliance with the Orders can be achieved (i.e. maximum grade) without altering the existing height of walls as constructed, and thus potentially avoiding a reduction in the current slope stability provided by the RCC key and mass gravity wall system. This approach will also have the added benefit of ensuring that the remediation earthworks and landscaping is completed in the shortest possible time frame as well as reducing the amount of soils being placed at the top of the slope. I am ready to proceed with the final battering of slopes and landscaping on the basis that you are satisfied with the spatial location of the block walls. Please note that final tweaking of end of wall locations may be required to achieve grade compliance and has not been completed at this time so that machinery access is not restricted from reaching the top of the slope. Could you please advise LGL/LMC that the engineering works are essentially complete (with exception of tweaking wall lengths) and that I will be commencing final battering and landscaping works in accordance with Orders 8(a),(c),(d) and (e) forthwith. Regards Hugh Gordon 1. Mr Mostyn replied on 28 September 2016 at 13.52, saying: Hugh, I do not see how you can achieve batters of no greater than 2.5:1 by regrading alone, it may be possible but, if so, the method is not clear to me. I cannot say the walls are essentially complete unless I understand exactly what you intend to do. Please advise urgently by annotating the drawing provided. If nothing received I will issue as positive progress report as possible, I expect this will be sufficient. Garry Mostyn Chief Engineer 1. On Wednesday, 28 September 2016 at 3.14 pm, Mr Gordon sent a further e‑mail to Mr Mostyn. An unannotated copy is not in evidence as part of this e‑mail chain. However, on 28 September 2016 at 9.23 pm, Mr Mostyn replied, annotating Mr Gordon's e-mail. This original from Mr Gordon, with Mr Mostyn's annotations, reads: Garry, My solution is to remove material from adjacent to the northern and eastern boundary without undermining the adjoining properties. My estimation is that between 0.5 to 1.5m of height can be gained with respect to the levels you received on Friday. As advised previously the soils are heaped along the boundary. This will facilitate the required grade across the bulk of the site. Any further adjustments can be applied by way of micro terracing in conjunction with landscaping as discussed at the design stage. (Provision for surcharge from landscaping) As mentioned the length of walls may need to be tweaked by 1 or 2 blocks. I am not in a position to annotate the drawing this afternoon, however you will note from your own plan that the adjustments advised above will get us close. *** I am far from convinced that the adjustments you suggest will result in compliance or even near enough compliance that I will be able to issue a suitably qualified certificate close to that required by the Orders. Several times I have requested provision of drawings or sketches to show what you intend; these have not been supplied. Your verbal descriptions are not particular enough to be able to sure of what you will achieve or to fully assess the level of non compliance. I acknowledge there may be some localised gradients that won't comply, but this was always understood. *** LGL's recent letter is very clear that LMC expects compliance with the orders; there might be a little wriggle room in this but I do not expect a great deal. The top of the constructed walls are as per the design levels, however the walls are set-back further in the slope. This has the impact of lowering the overall topography by 0.5 to 1m. *** Setting the walls back further from the southern boundary meant the crest of the walls had to be higher (the toes could have been raised an equal amount by battering in front of the walls). The topography cannot be lowered overall as the 2.5:1 grade and walls are required to match the site boundary elevations which cannot be changed. I have applied aggressive set-backs when constructing the walls to ensure their stability. *** You are not the designer. The designs are shown on CSG SK4. Single course walls, offset by 2.5:1 batters or two courses with a maximum 1:1 bedcourse batter of maximum height/thickness 300 mm. I consider adding unnecessary surplus mass (RCC & soil) high on the slope contrary to the primary objective of the Orders, being the stabilisation of the slope. *** The Orders are clear. Similarly, increasing the height and number of walls would be contrary to the Councils wishes. *** My understanding is that Council's wishes are reluctantly set out in the Orders. The site with the current size and distribution of walls looks very acceptable and once landscaped will look even better. *** That has little to do with the Orders and you may be back in court asking for a variation to the Orders. I accept responsibility for any non-compliance to the Orders and trust that all parties will be pragmatic in facilitating a quick, simple finalisation to the remediation work. *** I am not certain that all parties will accept the degree of non compliance that you might contemplate or that I consider is likely to be achieved if you adopt the approach you outline above. I cannot report that you have completed the works. Regards Hugh Gordon 1. Mr Mostyn's annotations are readily identifiable as each of them is in blue and preceded by three stars. 2. As is self-evident from the above reproduced material, each of Mr Mostyn's comments is in response to the immediately preceding element of Mr Gordon's e-mail. There can be absolutely no doubt that Mr Mostyn was expressly advising Mr Gordon that if he went ahead with the activities on the site that he proposed to undertake, he (Mr Gordon) would be in breach of the orders made by me on 2 May 2016. It is clear, from the terms of the orders, that the ignoring of Mr Mostyn's warnings and going ahead with the works undertaken after these warnings properly found Count 3 - breaching of order 6 prohibiting work outside the scope provided for by the orders and without development consent for such works. 3. Despite this advice from Mr Mostyn, Mr Gordon nonetheless undertook activities on the site, which he had been warned would be in breach of the 2 May 2016 orders. The inescapable conclusion to be drawn from this is that Mr Gordon deliberately chose to breach the orders in two distinct fashions. 4. First, Mr Gordon chose to carry out work which he knew was contrary to the scope of works that had been mandated by Order 8 and that he expressly intended to do so despite that order; and secondly, Mr Gordon knew that, by departing from the scope of works that was mandated by the terms of Order 8, he was also knowingly carrying out work for which development consent was required without first having obtained development consent for that work with this being, to his knowledge, in breach of order 6. 5. The nature of the works which were undertaken during the period after 28 September can be seen, clearly, from (41)(b) of the SOAF. 6. At this point, it is pertinent to note, briefly, that during the course of his oral submissions, Mr Gordon referred to what he described as an "alternative narrative" that he said was available. 7. For the present, it is sufficient to note that the terms of the SOAF are clear, concise, and compelling as to providing an evidentiary basis to demonstrating, without the remotest possibility of doubt whatsoever, let alone a reasonable doubt, that the two propositions set out above concerning Mr Gordon's activities are clearly and precisely established. Further discussion of Mr Gordon's postulation that some alternative narrative was available is dealt with in my consideration of Mr Gordon's subjective factors under the heading "Contrition and remorse". Mr Gordon's presentence report Introduction 1. As I considered I needed to have appropriate information available to me as to what might be the range of sentencing options to be considered for Mr Gordon, I referred him to Community Corrections, part of NSW Corrective Services, for a pre-sentencing report. Community Corrections conducted in interview with Mr Gordon and sent me a written report concerning what sentencing options might be available to me through Corrective Services. The report was dated 30 August 2017. A copy of the report was also provided to Mr Gordon. 2. It is unnecessary to set out all the material contained in the report. There are, however, three aspects of the report to which I should refer. 3. First, the report made mention of a number of prior convictions of Mr Gordon for offences entirely unrelated to environmental or planning matters. With respect to this element of the report, it is appropriate to reproduce a short extract from the transcript of the sentencing hearing on 11 September where I raised this element with the Prosecutor (Transcript page 3 line 49 to page 4 line 6): …. First let me put this proposition to you that although the pre-sentence report that I've obtained for Mr Gordon deals with, amongst other things, prior convictions. As none of those are ones which appear to relate to offences under the Environmental Planning and Assessment Act, I ought not have regard to those in these proceedings. MCEWEN: We don't submit that you should. 1. Consistent with that exchange, I have paid no regard to this aspect of Mr Gordon's past interaction with the criminal law. 2. Second, under the heading "Attitude to offending", the presentence report records that Mr Gordon expressed the following sentiment concerning his conduct. Attitude to offending Mr Gordon agreed with the Police facts. He stated that he was regretful for his decision making and accepts full responsibility, citing that he made an error in how he interpreted the process. He stated that he was disappointed in himself and the negative implications his actions have had on others. 1. As this is hearsay, I give it no weight in my sentencing assessment. I observe, however, Mr Gordon's sentiments as observed by the interviewer are entirely consistent with what I do take into account in my later analysis as to whether Mr Gordon has any proper insight into the nature of his offending conduct (particularly Charge 3). 2. Third, it is appropriate to reproduce the conclusion of the pre-sentencing report. This conclusion was in the following terms: While the offender has been assessed as suitable to perform community service work, it is considered he would not benefit from available developmental programs due to no appropriate programs available to address his criminogenic factors. 1. It therefore follows that, in my consideration of potential sentences, insofar as it might become appropriate for me to consider some form of correctional sentence, the presentence report makes it clear that there is no available alternative to a full-time custodial sentence, should such a path require to be considered (as I am satisfied it is necessary for the reasons later set out). Mr Gordon's subjective circumstances Introduction 1. Mr Gordon has elected not to give evidence in these sentencing proceedings. It is clearly his right to adopt that position and no adverse inference is to be drawn from that. 2. However, as a consequence, there is a paucity of information concerning Mr Gordon's subjective circumstances to be taken into account in my instinctive synthesis of what penalty should be imposed. 3. As I have earlier noted, application, by analogy, of the Sentencing Procedure Act would have me engage in consideration of such information as I had available concerning all of the relevant aspects contained in s 20(1A)(3) of that Act. There are, however, only two of the matters arising from that provision about which I have information available to me. They are: 1. First, whether or not Mr Gordon has genuinely expressed contrition and remorse for his actions; and 2. Second, whether Mr Gordon has any relevant prior convictions to which I should have regard, in my sentencing synthesis. 1. Both these factors are discussed below. Contrition and remorse 1. As I earlier observed, in my sentencing analysis for Mrs Gordon, a potentially significant factor in my instinctive synthesis to determine the appropriate sentence is the extent to which there may have been a genuine expression of contrition and remorse for the breaches of the orders. Unlike my findings with respect to Mrs Gordon, I am satisfied that there is absolutely no basis, despite his protestations from the Bar Table, that Mr Gordon has any remorse for his actions whatsoever. For the reasons that follow, I am satisfied that he has no insight concerning his conduct and its consequences. Specifically, for the reasons that are set out in the following detailed analysis, it is clear that he has no understanding of the need to abide by either the requirements of the statutory planning process mandating the seeking of development consent before carrying out works that require such consent or the necessity to obey the orders of the Court. 2. He has also expressed no remorse whatsoever for the impact that his excavations along the boundary between the site and the site's uphill neighbours at 10 Ebsworth Street Redhead. 3. I have earlier noted that Mr Gordon elected not to give evidence as part of this sentencing process. His exercising of his right to silence is, expressly, a matter to be ignored in my sentencing consideration and I so ignore it. Indeed, consistent with the approach adopted by Preston CJ, at the time of Mr Gordon's conviction in 2005 for the offence later described, I have permitted Mr Gordon to address me, in submissions from the Bar Table, on what Mr Gordon has proclaimed to be his remorse. This is the approach that was permitted by Preston CJ, as his Honour noted at [137] in Bentley v Gordon [2005] NSWLEC 695 (Bentley v Gordon) (discussed below). 4. Mr Gordon said, toward the end of his submissions (Transcript, page 39, lines 6 to 8): SECOND RESPONDENT: Your Honour, I submit that that, that the evidence contained in that paragraph is evidence of my remorse, cooperation and resolve to have the core issues addressed. 1. The element of the SOAF to which Mr Gordon refers as "that paragraph" is paragraph 37 of the SOAF - a paragraph that sets out the terms of the mediation settlement of 13 March 2017, set out at [12] and [13]. To the extent that entering into such an agreement is to be reflective of contrition and remorse on Mr Gordon's part, I accept that that is the conclusion to be drawn. 2. Mr Gordon also said (Transcript, page 39, lines 24 to 27): And I accept responsibility that I, that I have breached the, breached the orders as the charges set out, and that I, I submit that my remorse has been, is evidenced by the evidence before the Court … 1. However, those two statements need to be weighed not only against the objective and uncontested evidence in the SOAF but in light of other submissions made by Mr Gordon that can only be seen as seeking to resile from what he had agreed to in the SOAF and also suggesting that I should draw conclusions inconsistent with the SOAF. 2. For the reasons set out below, I am satisfied that those expressions of remorse by Mr Gordon are generally self-serving and insincere, warranting not only no consideration but clearly, correctly analysed, demonstrating his lack of insight concerning his activities. 3. I start with the final element of Mr Gordon's closing submissions. There are a number of aspects warranting my consideration. First, Mr Gordon said (Transcript, page 38, lines 19 to 49): … Your Honour, I'll take you to paragraph 35 of the statement of facts. HIS HONOUR: Yes. SECOND RESPONDENT: Your Honour, I submit, I submit that the prosecutor is mischievously conflating issues. I submit that this paragraph was evidence that there are two distinct issues. One being the works required to complete the engineering design and two, works to remediate the northern boundary. Your Honour, I submit that if you read that paragraph, you have no way of knowing from the evidence which work relates to which issue. Your Honour, I'll take that a step further in reading paragraph 36 of the statement of facts. Your Honour, that paragraph supports my submission that in, in fact non compliances were not known either by the council nor myself until 13 March 2017 and that's the date that Mr Mostyn who is notoriously late and longwinded in providing information finally provided a Excel spreadsheet which I note is not in evidence, your Honour. Counsel has neglected to include that key document in evidence. HIS HONOUR: Mr Gordon, this is a document to which you have agreed. SECOND RESPONDENT: Correct. HIS HONOUR: Had you wished to give evidence about omissions and the like, and during the course of that evidence you had wished to tender other documents, you were free to do so and indeed you remain free to seek my leave to do so. Otherwise, you are bound by the statement of facts that you have agreed to and the statement of facts absent further evidence encompasses the totality of the facts to which I am permitted, not merely obliged, but I am limited to what I am permitted to consider. 1. I set out below what paragraph 35 of the SOAF actually says: 35. On 10 March 2017, Garry Mostyn prepared plans, which illustrate the amount of work required on the Land to complete the Engineering Design in accordance with the Court Orders; which plans also took account of the extra work carried out by Hugh Gordon between 23 September 2016 and 26 October 2016. The cross sections show that in general the surface needs to be raised and flattened across the site and additional attention to where excavation has occurred across the northern boundary. The work required to address the extra work carried out by Hugh Gordon between 23 September 2016 and 26 October 2016 and to achieve the Engineering Design includes: (a) Remove landscaping as required (most of site); (b) Expose top of RCC or excavation line as shown on design. Note this is likely to require removal from site to waste or stockpile considerable fill, approx. 700 - 1,000 m3 off site. The existing concrete and sandstone blocks that are not as per the design shall be removed; (c) Working from southern boundary, raise site with RCC to foundation level of each wall and construct wall backfilling with RCC as required; (d) Along northern boundary, where excavation has occurred, excavate foundation for gravity wall, assume bottom course 2 wide and single block upper course. Place minimum of 300 RCC as foundation layer, then lower course then upper. Rear faces on boundary. (With consent this can be backfilled on neighbours land but this is not part of the 2 May 2016 Orders nor the Engineering Design); (e) Complete placement of RCC and site or imported sand as required by the design. This will require return or replacement of material removed from site plus approximately an additional 1,000 m3 of fill. Of total fill returned assume approximately 500 m3 is RCC. The concrete and sandstone blocks shall be placed as per the design; (f) Revegetate as per existing. 1. Charge 3, which, for the reasons earlier set out, is the most serious of the charges against Mr Gordon, concerns his carrying out of works requiring consent without having consent where those works were executed in the face of express warnings from Mr Mostyn that they would not be in compliance with the ordered works. 2. The timing of knowing the extent of what was required to address Mr Gordon's non-compliant works is not relevant - what paragraph 35 of the SOAF does is set out the now extent of what is required to address, functionally, the non-compliances resulting from Mr Gordon's October 2016 work in breach of the orders. Complaining about lateness of knowing the extent of the measures needed to address his activities is irrelevant to the fact that he carried out activities without consent which now require the works in paragraph 35 to address their consequences. It is also demonstrative of a lack of insight into the nature of his offending behaviour. 3. Next, Mr Gordon submitted (Transcript, page 39, lines 8 to 14): Your Honour, I also take you to the appendix, the plan attached to appendix A and the correspondence, and appendix B, your Honour, the, I believe those documents also provide evidence that, that I was actively engaging with Mr Mostyn to, in order to, to find suitable solutions to achieving compliance outcomes, or compliance with the outcomes required by the order, even though we were in breach of, with the time element. 1. The documents to which Mr Gordon refers are the e-mail and attached plan sent by Mr Mostyn on 26 September 2016, and the e-mail chain culminating in the e-mail sent by Mr Mostyn giving his warnings to Mr Gordon that that which Mr Gordon proposed to undertake would be in breach of my 2 May 2016 orders. 2. It is clear from the e-mails (earlier set out in full) that Mr Gordon was not "actively engaging with Mr Mostyn to, in order to, to find suitable solutions to achieving compliance outcomes" but was merely setting out what he (Mr Gordon) intended to do and then going ahead and doing it, despite Mr Mostyn's clear advice that doing so would breach the Court's orders. 3. Third, relevant to Mr Gordon's lack of insight into the nature of his offending conduct, Mr Gordon submitted (Transcript, page 39, lines 14 to 17): Your Honour, I take you to paragraph 14 of the submissions, prosecution's submissions. Your Honour, in 14(c), I submit that - there are some dimensions there, your Honour, I submit that there is no evidence supporting those dimensions. 1. In this short passage, Mr Gordon refers to (14)(c) of the SOAF. The passage is reproduced below: 14. The October 2016 Earthworks were: (a) …; (b) …; (c) Carried out up to 1.68 metres into and up to 1.67 metres under adjoining land causing distress to neighbours and injury to neighbouring property (see affidavit of Paul McKenzie 21 February 2017); 1. Effectively, Mr Gordon seeks, in this element of his submission, to deny two matters of some importance in understanding the nature of his offending conduct. They are, first, that he has carried out works that were not only in breach of the Court's orders but were across the boundary of 10 Ebsworth Street and thus on the uphill neighbouring property (and so causing distress to the residents of that property). There was no consent from those neighbours to the carrying out of works on their property. 2. Second, by saying that that to which he has, expressly, agreed in the SOAF is unsupported by evidence, Mr Gordon shows further lack of insight concerning his conduct. In circumstance where Mr Gordon has adopted the SOAF and declined to give evidence, his rejection of the extent of the impact on the neighbouring property, and on its residents, sits entirely contrary to his limited statements of remorse. Drawing this conclusion is not to be seen as reflecting on Mr Gordon's exercising of his right to silence - that right is acknowledged and respected by me; it is, however, expressly founded on his rejection of what is set out in paragraph 14(c) of the SOAF. 3. Finally, relevant to Mr Gordon's lack of insight into the nature of his offending conduct, Mr Gordon submitted (Transcript, page 39, lines 17 to 24): So in conclusion, your Honour, I submit I do understand the, the different degrees of contempt and your Honour, what I've, the submissions that I've made today, your Honour, I, my contention is that there's clear evidence that my actions that resulted in degrees of, of non-compliance, degrees which have not quantitatively been, or supported quantitatively with evidence were not deliberate and wilful, your Honour, but were unintentional. 1. Mr Gordon's assertion, in the above passage, that his actions in undertaking the works in October 2016 - in defiance of Mr Mostyn's warnings - were "not deliberate and wilful - but were unintentional" is risible and demonstrated by the SOAF to be in denial of the facts. 2. There are also several examples in the transcript where Mr Gordon says that there is "an alternative narrative" available. It is appropriate to refer to two of them specifically. 3. The first of them (at Transcript, page 21, lines 17 to 28) was where Mr Gordon said: SECOND RESPONDENT: Thank you, your Honour. Your Honour, we've received Mr McEwen's submissions this morning and they're obviously quite comprehensive. I guess I admit from the outset that some of the technical aspects and the legal aspects escape me, but that doesn't - I accept that that in no way detracts from my responsibility in this matter and, and my culpability. But your Honour, from my perspective, Mr McEwen's submissions essentially form - although based on facts, agreed facts, your Honour, they're basically just one - form one narrative of what, on the balance of probability, is likely to be one of, one, one alternate or maybe more alternate narratives. Indeed, I think my narrative as to this matter is probably different to my wife's narrative, your Honour. You'll have the opportunity to hear what she has to say shortly. 1. Second, later in the hearing, Mr Gordon made further reference to an "alternative narrative" when he said (Transcript, 11 September 2017, page 35, lines 13 to line 30): SECOND RESPONDENT: … So again without drilling too far down into, to that your Honour because we're not mounting a defence, I'm merely submitting that, that despite the professional and thoroughness of, of the prosecutor's submissions, they don't contain the evidence to support his submissions given the burden of proof that, that he's compelled to provide. I'm also trying to set out, rather than just say that the prosecutor doesn't get there your Honour, I'm, I'm trying to convey to you that there's a - on the balance of probability there's a very plausible alternate narrative, from the person that owns and contains the mind that was making the decisions in respect to and, and knowingly was going forth understanding his responsibilities in light of the orders, trying to make the best of a pretty bad situation your Honour and having said that, I'll go the next step your Honour and I'll take you to paragraph 24 of the statement of facts and your Honour was that precise - what may appear to be conflict between Mr Mostyn and myself but it wasn't, it was just animated problem solving, the council took the opportunity to put the, the red flag up, the stop sign, and quite prematurely because, because we still had two months to go to complete the landscaping. 1. There is no alternative narrative - there is but the single narrative in the SOAF. Mr Gordon adopted that narrative by his agreement to the SOAF. Suggesting some alternative reality that varies from that which is clear from the SOAF merely reinforces the inevitable conclusion that, despite his lip service to remorse, Mr Gordon has virtually no understanding of the nature of his transgressing conduct or, in reality, any regret for undertaking it. Mr Gordon's prior conviction 1. Put simply, Mr Gordon "has form". 2. In 2005, Preston CJ convicted Mr Gordon of an offence against the National Parks and Wildlife Act 1974 (the NPW Act) (Bentley v Gordon). On that occasion, Mr Gordon was project managing a development site at Redhead and he supervised, or personally undertook, the clearing of the areas where a plant, Black-Eyed Susan (Tetratheca juncea) - declared vulnerable under the (now repealed) Threatened Species Conservation Act 1995 - was growing. It was clear that he was aware of the presence of the plant and, nonetheless, went ahead and caused, or undertook, the clearing work. 3. In his sentencing decision, at [127], his Honour expressed his conclusion that the offending conduct was at the higher end of the scale. Later in his decision, his Honour referred to the limited extent to which Mr Gordon had expressed contrition and remorse, writing at [137] to [139]: 137. Mr Gordon has stated in submissions from the bar table his contrition and remorse. Mr Gordon acknowledged the inappropriateness of his conduct to the Court and to the community. Mr Gordon stated that, with the benefit of hindsight, he would not again take the approach that he adopted at the time and certainly would not recommend it to other persons. Mr Gordon stated that he understood that his actions have caused significant distress and grief in the local community. Mr Gordon added that it has also caused emotional and economic stress to him and his family. 138. The making of restitution or compensation can also provide evidence of remorse and contrition. Where it occurs it justifies a reduction in sentence: Mickelberg (1994) 13 A Crim R 365 at 370 and s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999. 139. In this case, however, Mr Gordon has made no attempt to rehabilitate the site or to prevent further damage to the site since the clearing. 1. Although Mr Gordon had pleaded guilty, he had not done so at the earliest opportunity. As a result, his Honour only allowed Mr Gordon a 20% discount rather than the maximum R v Thompson 25% discount potentially available. 2. His Honour proposed an original indicative sentence of $44,000 on the objective facts and, after having had regard to Mr Gordon's (then) subjective circumstances and the discount for Mr Gordon's guilty plea, his Honour nonetheless imposed a fine of $30,000 (this being above the midpoint of the maximum fine then applicable of $55,000). His Honour's initial starting point, being 80% of the maximum penalty then available, indicates the gravity with which his Honour regarded Mr Gordon's offending conduct. 3. Although, in that instance, the charge against Mr Gordon was laid under the NPW Act, his offending conduct nevertheless arose out of land development activity, and the environmental and planning framework regulating and controlling activity of that nature. 4. It is clear from his Honour's decision, at [117], that Mr Gordon was aware of the presence of the vulnerable plants; that they were protected; and, despite this, went ahead with supervising or carrying out the clearing activities. It is also clear that his Honour found that Mr Gordon undertook those clearing activities as a preparation for future development activities on that site (at [122]). That is also here the case. 5. Although in a different development and legislative context, Mr Gordon's attitudes to adherence to the law reflected in the circumstances that brought him before Preston CJ in 2005 are mirrored in 2017 by his state of knowledge of the 2016 court orders by which he was bound; his awareness that his proposed actions would breach those court orders; and his determination, despite these circumstances, to press ahead and do that which he had determined he would do. 6. It is also clear that, in a broad attitudinal sense, Mr Gordon has not learned the lesson intended to follow from the penalty imposed by Preston CJ in 2005. 7. This arrogance (and it can only be so described, I am satisfied) is a significant factor requiring my consideration when assessing the need for specific deterrence for Mr Gordon to result from the sentences to be imposed for his actions after warnings contained in the 28 September 2016 e-mail from Mr Mostyn to him alerting Mr Gordon that if he went ahead and did what he actually did, he would be in breach of my 2 May 2016 orders. Specific deterrence and Mr Gordon 1. It is clear from that which I have earlier set out of the warnings given by Mr Mostyn to Mr Gordon that if he carried out the works discussed in the e‑mail exchanges at the end of September 2016 he would be in breach of the Court's orders of 2 May 2016, and the fact that Mr Gordon paid no heed to those warnings from the professional engineer appointed to supervise his activities, demonstrates the need for a strong measure of specific deterrence. It is necessary to demonstrate, unequivocally, to Mr Gordon that his conduct was entirely inappropriate and unacceptable. 2. His questioning of what is clearly set out in the SOAF to which he has agreed reinforces the need to deter Mr Gordon from future conduct in breach of either court orders or the requirements of the EP&A Act. 3. In circumstances where, as I have earlier described, his submissions to me using the words "alternative narrative" with respect to the SOAF merely serve to add further weight to the necessity to reinforce to Mr Gordon the simple proposition that he ought not to behave in this fashion again. General deterrence 1. There is, as a matter of general proposition, a strong public interest in maintaining the integrity of the planning system and in ensuring that orders of the court are obeyed. These two factors come together in these proceedings. 2. It is clear, both from the proceedings leading up to my earlier decision, and Mr Gordon's earlier offence involving a criminal conviction arising out of land development activities (through a conviction under the NPW Act) that a powerful general message needs to be sent that wilful disregard of court orders concerning remediation of earlier unlawful development activities is not to be tolerated. 3. The necessity for this general deterrence message needing to come from Mr Gordon's sentencing process are significant factors I take into account in determining what are the appropriate penalties to be imposed on him. 4. My approach should reflect, I am satisfied, the comments by Lloyd J in Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89; [2002] NSWLEC 132, at [35], that there is significant public interest in the supporting of, and promoting, the adherence to the planning system in the State. That general sentiment was repeated in the decision of Preston CJ in Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242, at [104], where his Honour refers to the need for the upholding of the integrity of the system of planning and development control. Although these sentiments were expressed in Class 5 proceedings, they are equally applicable in contempt proceedings such as these. Determining Mr Gordon's punishment 1. In order to determine the appropriate punishments for Mr Gordon, I must undertake a process of instinctive synthesis based on such information as I possess concerning the objective aspects of the various elements of offending conduct, and Mr Gordon's subjective factors as the offender (Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25). In doing so, I must also have regard to the need for general deterrence as well as the level to which the sentencing must provide specific deterrence to Mr Gordon in order to ensure that he does not offend in any generally similar fashion in the future. 2. This process also requires me to consider what should be the sentence for each of the three charges for which Mr Gordon is to be convicted and how those individual sentences might be tempered so that the overall sentencing package would reflect questions of totality and accumulation. Finally, it is to be observed that, for the reasons I have earlier discussed, Mr Gordon should be given a 25% discount on each of the sentences that might otherwise be imposed, as such a discount is appropriate recognition of the utilitarian value of the timing of the entry of his guilty pleas. 3. I now turn to the appropriate penalty to be imposed for Charge 1. For the reasons I have earlier explained, the factual position giving rise to this charge (and Charge 2) is significantly qualitatively different from the circumstances giving rise to Charge 3. This charge (of timetable slippage in breach of Order 8(k)) was attended by what can only be regarded as forbearance by the Prosecutor, whilstever Mr Gordon was actually giving effect to the works required by the 2 May 2016 orders. 4. In that respect, it seems to me that a nominal fine, at a commencing sum of $4,000, is to be regarded as the appropriate starting point. Applying the discount of 25% to this sum results in a penalty of $3,000. 5. The same approach is appropriate for Charge 2, with the same penalty outcome after the 25% discount for Mr Gordon's guilty plea. 6. However, it is appropriate to have regard to totality and the fact that each of the sentences for Charges 1 and 2 arise out of a single course of conduct. Consideration of the question of totality and accumulation means that this penalty should be further reduced to a fine of $2,000. 7. The outcome, therefore, is that Mr Gordon is fined a total of $5,000 for Charges 1 and 2. 8. For Charge 3, where I am satisfied that Mr Gordon's conduct was wilful and contumacious in his disregard of the orders of the Court by carrying out work that was contrary to that which was required by the orders and doing so without development consent for the departures from the scope of works mandated by those orders, having proper regard to Mr Gordon's subjective circumstances, nothing less than full-time custodial sentences are warranted for this offence. I have concluded that a full-time custodial sentence of four months is the minimum appropriate as a starting point. This is to be discounted by 25% to reflect the utilitarian value of Mr Gordon's guilty plea to this charge, resulting in a sentence arising out of Charge 3 of three months' imprisonment. 9. Mr Gordon will, for Charge 3, therefore, serve three months' imprisonment from today's date, with the expiry of his sentence being 20 December 2017. 10. In reaching this overall sentencing conclusion, I have had proper regard to the burden that will be imposed on Mr Gordon by my making of an indemnity costs order in the fashion earlier discussed. Orders 1. I have concluded that the orders which I should make with respect to Mrs Gordon are: 1. Dianne Joy Gordon is guilty of the charge that, contrary to Order 8(k) made by the Court on 2 May 2016, she failed to complete the engineering works referred to in orders 8(a) to (j) within a period of 4 months from the date of the making of Order 8(k), but is not convicted of the charge; 2. Dianne Joy Gordon is guilty of the charge that, contrary to Order 8(l) made by the Court on 2 May 2016, she failed to provide to the Lake Macquarie City Council certification from Garry Mostyn of PSM that all engineering works referred to in Orders 8(a) to (j) had been carried out within 1 month of Order 8(k) being satisfied (Charge 2), but is not convicted of the charge; 3. Dianne Joy Gordon is guilty of the charge that she, her servants or agents did, contrary to Order 6 made by the Court on 2 May 2016, carry out earthworks on 12 Ebsworth Street, Redhead, which were not works required to be carried out under Order 8 made by the Court on 2 May 2016, without development consent being obtained for those works but is not convicted of the charge; 4. Dianne Joy Gordon is to pay the costs of Lake Macquarie City Council of these contempt proceedings on an indemnity basis other than: 1. Lake Macquarie City Council's costs of preparation of its Notice of Motion filed on 21 February 2017 (and amended on 28 February 2017) and the subsequent proceedings relating to that Notice of Motion; and 2. Lake Macquarie City Council's costs in preparation for and the conduct of its Notice of Motion filed on 22 August 2017. 1. I have concluded that the appropriate orders with respect to Mr Gordon are: 1. Hugh Charles Gordon is guilty of the charge that, contrary to Order 8(k) made by the Court on 2 May 2016, he failed to complete the engineering works referred to in Orders 8(a) to (j) within a period of 4 months from the date of the making of Order 8(k) (Charge 1) and is convicted of that charge; 2. On Charge 1, Hugh Charles Gordon is fined $3,000; 3. Hugh Charles Gordon is guilty of the charge that, contrary to Order 8(l) made by the Court on 2 May 2016, he failed to provide to Lake Macquarie City Council certification from Garry Mostyn of PSM that all engineering works referred to in Orders 8(a) to (j) had been carried out within 1 month of Order 8(k) being satisfied (Charge 2) and is convicted of that charge; 4. On Charge 2, Hugh Charles Gordon is fined $2,000; 5. Hugh Charles Gordon is guilty of the charge that he, his servants or agents did, contrary to Order 6 made by the Court on 2 May 2016, carry out earthworks on 12 Ebsworth Street, Redhead, which were not works required to be carried out under Order 8 made by the Court on 2 May 2016, without development consent being obtained for those works (Charge 3) and is convicted of that charge; 6. On Charge 3, Hugh Charles Gordon is sentenced to three months imprisonment, with that sentence to expire on 20 December 2017; and 7. Hugh Charles Gordon is to pay the costs of Lake Macquarie City Council of these contempt proceedings on an indemnity basis other than: 1. Lake Macquarie City Council's costs of preparation of its Notice of Motion filed on 21 February 2017 (and amended on 28 February 2017) and the subsequent proceedings relating to that Notice of Motion; and 2. Lake Macquarie City Council's costs in preparation for and the conduct of its Notice of Motion filed on 22 August 2017. ********** Amendments 22 September 2017 - Orders at [206] and [207]. 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: 22 September 2017