Land and Environment Court New South Wales Medium Neutral Citation: Hongzhi Sun v Grant Barnes, Department of Industry [2018] NSWLEC 196 Hearing dates: 30 October 2018 Date of orders: 30 October 2018 Decision date: 30 October 2018 Jurisdiction: Class 6 Before: Moore J Decision: (1) The penalty imposed on Hongzhi Sun (the Defendant) for the offence in Court Attendance Notice 2 for a breach of s 91A(2) of the Water Management Act 2000 is set aside; (2) In substitution, the Defendant is fined the sum of $6,400; (3) The penalty imposed on the Defendant for the offence in Court Attendance Notice 6, for breach of s 91B(1) of the Water Management Act 2000 is set aside; (4) In substitution, the Defendant is fined the sum of $6,400; (5) The penalty imposed on the Defendant for the offence in Court Attendance Notice 16 of a breach of s 91K(2) of the Water Management Act 2000 is set aside; (6) In substitution, the Defendant is fined the sum of $6,400; (7) The penalty imposed on the Defendant for the offence in Court Attendance Notice 17 of a breach of s 336C(1) of the Water Management Act 2000 is set aside; (8) In substitution, the Defendant is fined the sum of $4,800; (9) The Defendant is ordered to pay the Prosecutor's cost of the appeal as agreed or assessed. Catchwords: APPEAL AGAINST SENTENCE IN LOCAL COURT - four water offences - guilty pleas - circumstances of reasons for and timing of guilty pleas - consideration of discount on sentence to be given - consideration of relevant objective and subjective factors - no financial circumstances requiring moderation of penalties - appeals upheld - Appellant resentenced Legislation Cited: Crimes (Appeal and Review) Act 2001, s 31 Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A, 22 Fines Act 1996, s 6 Water Management Act 2000, ss 91A, 91B, 91K, 327 336C, 344A, 364A Cases Cited: Barbaro v The Queen, Saveio Zirilli v The Queen [2014] 253 CLR 58; [2014] HCA 2 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 2 NSWLR 683 Costa Holdings Investments Pty Limited (unrep) Wentworth Local Court, September 2016 Environment Protection Authority v Waste Recycling and Processing Corporation 148 LGERA 299; [2006] NSWLEC 419 Environment Protection Authority v Barnes [2006] NSWCCA 246 Markarian v R (2005) 229 CLR 357; [2005] HCA 25 R v Thomson, R v Houlton [2000] 49 NSWLR 383; [2000] NSWCCA 383 Veen (No 2) v R (1988) 164 CLR 465; [1998] HCA 14 Wollongong City Council v Eldridge [2017] NSWLEC 35 Category: Sentence Parties: Hongzhi Sun (Appellant) Grant Barnes, Department of Industry (Respondent) Representation: Counsel: Appellant in person Ms J Single, barrister (Respondent) Solicitors: Crown Solicitor's Office (Respondent) File Number(s): 161447, 161448, 161449 and 161450 of 2018 Publication restriction: No TABLE OF CONTENTS The maximum penalty Aggravating factors Mitigating subjective factors Introduction Prior conviction Contrition and remorse s 21A(3)(i) Entry of the guilty plea s 21A(3)(k) Cooperation with the Prosecutor s 21A(3)(m) Deterrence Introduction Specific deterrence for Mr Sun General deterrence The sentencing process Form 1 matters Mr Sun's financial capacity Proportionality Aggregation and totality Conclusion Orders EXTEMPORE JUDGMENT 1. HIS HONOUR: These matters are four appeals pursuant to s 31(1) of the Crimes (Appeal and Review) Act 2001. 2. They arise with respect to four penalties imposed by his Honour Magistrate Still in Parramatta Local Court on 20 March 2018. The Defendant in the proceedings is Mr Hongzhi Sun. Mr Sun conducts a market gardening business, relevantly to the matters I now need to consider, through a company known as "Happy Family Fruits & Vegetables Pty Limited" (the Company). 3. Mr Sun and his Company operate a market garden business and grow vegetables at a number of properties which they lease in Wolstenholme Avenue in Greendale. Each of the properties that are leased by Mr Sun and/or his Company for these purposes backs onto the Nepean River. 4. Mr Sun has been brought before me with respect to a severity appeal concerning four charges laid pursuant to the Water Management Act 2000 (the Water Management Act), these being the charges that were dealt with by the learned Magistrate. Initially, Mr Sun and his Company had been charged with a significantly larger number of offences and, on 27 September 2017, "not guilty" pleas had been entered with respect to each of those charges. 5. During the period between the entry of those pleas and the hearing before the learned Magistrate on 19 and 20 March 2018, there were negotiations between Mr Sun and officers in the Crown Solicitor's Office on behalf of the Department of Industry, that department being the Prosecutor in these proceedings, concerning the charges which were initially preferred against both Mr Sun and his Company. 6. Of some importance in these proceedings, when I turn to consider the time at which I should regard Mr Sun as having evinced a proper intention to plead guilty to the remaining charges that now bring him before me, are e-mails in November 2017 when Mr Sun indicated a preparedness to plead guilty and then, subsequently, withdrew that intention for a variety of reasons. 7. In this regard I have considered the terms of a letter written to Mr Sun on behalf of the Crown Solicitor dated 24 November 2017, which makes it clear that as at that date it was intended that charges against Mr Sun, pursuant to various provisions of the Water Management Act, remained to be pursued. There were six such charges detailed in that letter. 8. In addition, the letter also indicated that a further three charges were intended to be pursued against the Company. On the occasion when the matter was to come before the Court on 19 March 2018, the Prosecutor then appearing, as I understand the position, indicated to Mr Sun that only four charges were proposed to be pursued and that those against the Company were not proposed to be pursued at all. 9. As a consequence of that, on 19 March 2018, Mr Sun was before the learned Magistrate charged with the four offences that are noted in the facts sheet that was before the Magistrate as being pursuant to Court Attendance Notices 2, 6, 16 and 17. Those offences were as follows: * Court Attendance Notice 2 - use water otherwise than as authorised by a water use approval being a breach of s 91A(2) of the Water Management Act; * Court Attendance Notice 6 - using a water supply work without holding a water supply work approval being an offence against s 91B(1) of the Water Management Act; * Court Attendance Notice 16 - meter-tampering, being an offence against s 91K(2) of the Water Management Act; * Court Attendance Notice 17 - being a failure to comply with a direction issued under s 327 of the Water Management Act, the failure constituting a breach of s 336C(1) of the Water Management Act. 1. On 19 March 2018, Mr Sun withdrew his "not guilty" pleas, it would appear, and entered pleas of "guilty" to the four remaining charges that I have just set out. One of the matters that I am required to consider, for the purposes of s 22 of Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act), is when I should regard Mr Sun's pleas of guilty being entered. It is an accepted position to which I will later return that a discount on penalty is to be given to a maximum of 25% in recognition of the utilitarian value to the system of justice of the entry of such a plea. 2. Although I am not satisfied that Mr Sun's pleas of guilty were entered at the earliest possible opportunity, I am satisfied that they were entered at a reasonably early occasion, given the negotiations between the Prosecutor and Mr Sun as to the number of offences for which he was to finally go before the learned Magistrate. 3. I now turn to address the sentencing framework. I do so in the context where these appeals are appeals against the severity of the sentences imposed by the learned Magistrate, being a fine of $10,000 for each of the offences rather than a reagitation of the questions of guilt or otherwise of those offences. 4. I turn first to the relevant legislative provisions. A number of provisions of the Sentencing Procedure Act and one provision of the Fines Act 1996 (the Fines Act) are either relevant, or potentially relevant, to the process I am undertaking. I have earlier outlined the various provisions of the Water Management Act engaged by each of the court attendance notices to which Mr Sun pleaded guilty before the learned Magistrate. I therefore turn to the relevant provisions of the Sentencing Procedure Act. 5. The first relevant provision is s 3A, a provision which sets out the purposes of sentencing. This provision is in the following terms: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence; (b) to prevent crime by deterring the offender and other persons from committing similar offences; (c) to protect the community from the offender; (d) to promote the rehabilitation of the offender; (e) to make the offender accountable for his or her actions; (f) to denounce the conduct of the offender; (g) to recognise the harm done to the victim of the crime and the community. 1. The next provision is s 21A Aggravating, mitigating, and other factors in sentencing. It is not necessary at this point to set out the totality of this provision, but it will be necessary to deal with the relevant elements of it in my subsequent analysis. 2. The final provision of the Sentencing Procedure Act that is relevant is s 22, a provision that requires me to take into account Mr Sun's guilty pleas. This provision is in the following terms, 22 Guilty plea to be taken into account. In passing sentence for an offence on an offender who has pleaded guilty to an offence, a court must take into account, (a) the fact that the offender has pleaded guilty, and (b) when the offender pleaded guilty or indicated an intention to plead guilty, and (c) the circumstances in which the offender indicated an intention to plead guilty; and (d) may accordingly impose a lesser penalty than it would otherwise have imposed. 1A. A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence. 1. The remaining provisions of s 22 do not require consideration in these proceedings. 2. The final relevantly potentially applicable statutory provision is contained in s 6 of the Fines Act. This provision is in the following terms, 6. Consideration of accused means to pay. In the exercise by a court of a discretion to fix the amount of any fine, the Court is required to consider: (a) such information regarding the means of the accused as is reasonably and practically available to the Court for consideration; and (b) such other matters as in the opinion of the Court are relevant to the affixing of that amount. The maximum penalty 1. The maximum penalty to each offence with which Mr Sun has been charged is $22,000 when the matter is prosecuted before the Local Court (see s 364(6) of the Water Management Act). However, before me, the maximum overall penalty for a Tier 2 offence is $247,500. The legal position is, had I contemplated increasing the penalties that were imposed by the learned Magistrate, it would have been necessary for me to warn Mr Sun that I intended to do so. 2. I have given no such warning, nor has the Prosecutor suggested that I ought to do. I therefore start with the maximum relevant penalties for this determination being those that were imposed by the learned Magistrate. However, it is appropriate to note that the maximum penalty reflects a public expression by the Parliament of the seriousness of each offence charged (see Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 2 NSWLR 683 (Camilleri's Stock Feeds) at 698). Aggravating factors 1. The Sentencing Procedure Act in s 21A(2) earlier noted requires me to consider whether there are any aggravating factors requiring to be taken into consideration. 2. The Prosecutor suggests in her written submissions at p 15 that I should conclude that pursuant to s 21A(2)(o) of the Sentencing Procedure Act, the offence was committed for financial gain, or at a minimum to avoid financial loss. 3. Although, in the evidence that Mr Sun gave before the learned Magistrate, he expressed concerns about his inability to irrigate and the necessity to comply with the regulatory scheme whilst he sought approval to do so. There is no express evidence before me in these proceedings as to the extent of the financial gain which might have accrued or be expected to have accrued to Mr Sun. 4. I am therefore not satisfied, given that the Prosecutor has to establish any aggravating factor beyond reasonable doubt (contrary to the position where mitigating factors in Mr Sun's favour are only to be found on the balance of probabilities), that I can conclude that financial gain operated in any aggravating fashion warranting any increase in sentence that might otherwise be appropriate. Mitigating subjective factors Introduction 1. The Sentencing Procedure Act requires me by s 21A(3) to consider were there any relevant mitigating factors requiring to be taken into consideration. The section sets out a variety of matters which may require consideration and I now turn to those which it seems to me are engaged with respect to Mr Sun. Prior conviction 1. Section 21A(3)(e) deals with prior convictions. Mr Sun has no prior convictions for water or any other offences and this is a factor standing in his favour. Contrition and remorse s 21A(3)(i) 1. In his evidence contained in Exhibit A and in his written submissions filed on 25 October 2018, Mr Sun has not expressed any degree of remorse for his unlawful conduct. Indeed, in his written submissions Mr Sun makes a number of conduct allegations against officers of the prosecuting Department and does not express any regret for the actions which currently bring him before me and which originally brought him before the learned Magistrate. I am not satisfied that there is any contrition or remorse expressed by him that would have any mitigating effect on the sentences otherwise appropriate to be imposed. Entry of the guilty plea s 21A(3)(k) 1. The Prosecutor does not accept that Mr Sun entered pleas of guilty at the earliest appropriate opportunity. Indeed, in the Prosecutor's written submissions, she wrote: 102 The appellant takes issue with the sentencing judge's findings as to the timing of the plea. It would appear that plea negotiations took place in November 2017 as evidenced in the appellant's appeal book tab 1. These communications were not in evidence before the sentencing judge and the sentencing judge was unaware of them. On the evidence before the sentencing judge he did not err in concluding it was a late plea. 1. With respect to those observations on the basis that the e-mail and other correspondence was not before the sentencing judge, those submissions on behalf of the Prosecutor are entirely unexceptional. The written submissions then continued, at 103: The plea of guilty was entered in the Local Court when the matter was listed for trial. The plea negotiations that take place in November 2017 can be taken into account when considering the discount to apply for the plea. The appellant did indicate a desire to enter a plea in November 2017 however there was no real plea negotiation until the matter was listed for trial. The respondent concedes the appellant is entitled to a mitigation in sentence in light of the plea entered. 1. It seems to me that the nature of the negotiations, particularly arising out of the letter from the Crown Solicitors Office in November 2017 indicating that nine offences remained to be brought before the Court and that it was only until virtually the timing of commencing of the proceedings in March 2018 before the learned Magistrate that Mr Sun was informed that only four matters would be pursued, whilst a number of other matters would be placed before the Court pursuant to a Form 1 Notification attached to the relevant court attendance notice matter is relevant. 2. Although I am satisfied that it is not appropriate to regard these pleas as eventually given to the learned Magistrate as occurring at the earliest possible occasion, I am satisfied that they were entered at a time reasonably proximate to that and that as a consequence Mr Sun should be entitled to a significant discount albeit one a little less than the maximum discount permissible of 25% (see R v Thomson, R v Houlton [2000] 49 NSWLR 383, [2000] NSWCCA 383). Cooperation with the Prosecutor s 21A(3)(m) 1. I accept that Mr Sun has cooperated significantly with the Prosecutor by making admissions. Whilst they may not have been entirely unalloyed, it seems to me that the making of such admissions as has occurred and the agreeing to what the Magistrate accepted was a statement of agreed facts, although not so labelled, does evidence cooperation with the Prosecutor on those matters. Deterrence Introduction 1. I have earlier set out the terms of s 3A of the Sentencing Procedure Act. It provides in s 3A(b) that one of the purposes to be achieved by sentencing an offender is to prevent crime by deterring the offender and other persons from committing similar offences. I therefore turn to consider the matters of specific deterrence for Mr Sun and that of broader general deterrence. Specific deterrence for Mr Sun 1. It seems to me that Mr Sun now appears to accept, but not unconditionally, that what he did was wrong. His 26 October 2018 submissions, however, are still significantly blind as to the nature of his offending conduct. It is, therefore, necessary to reinforce Mr Sun's understanding of the requirement that such conduct is not to be repeated and is unacceptable, that there be an element of specific deterrence in the sentences to be imposed on him. General deterrence 1. It is also necessary to send a broader message of the importance of upholding the integrity of the system for water regulation including extraction from scarce riverine sources, such reinforcement of the necessity to obtain appropriate permits and approvals is relevantly directed to others who have market garden businesses and to the broader public who might contemplate such water extraction activities. The sentencing process 1. The appropriate process to be undertaken in sentencing Mr Sun is one that requires me to perform an instinctive synthesis of all relevant factors, objective and subjective, in order to determine what might be an appropriate starting penalty to punish his conduct in each instance (see Markarian v R (2005) 229 CLR 357, [2005] HCA 25). This instinctive synthesis requires me to have regard to whereabouts within a range of seriousness the offending conduct should be regarded as falling having regard to the maximum penalties for such offences. Camilleri's Stock Feeds, earlier cited, at 698, confirmed that the task of a court is to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided. 2. Having determined the relative seriousness of the offence, the penalty imposed is that which approximately correlates upon the scale of penalty set by the legislature from zero to the maximum. The upper limit for the range within which the sentence for each offence falls must not exceed that which is proportionate to the gravity of the offence in light of its objective circumstances (see Veen (No 2) v R (1988) 164 CLR 465, [1998] HCA 14). The lower limit is fixed to permit allowance for subjective factors as those relevant to the offender cannot produce a sentence that fails to reflect the offences' objective seriousness. 3. Consistent with this, it is necessary to categorise the objective seriousness of the behaviour constituting the offences in these proceedings as falling somewhere within a range between the least bad case and the worst category of such conduct. I find in each of these instances that Mr Sun's offending conduct should be categorised as being toward but not at the upper end of the low range for such offending conduct. Form 1 matters 1. As I have earlier noted, a number of further charges were included on several versions of Form 1 appended to the relevant court attendance notice. I have taken those into account in my instinctive synthesis as appropriate. Mr Sun's financial capacity 1. Section 6 of the Fines Act gives me a discretion to take into account Mr Sun's financial circumstances in determining what would be appropriate penalties to impose. Although, in his submissions of 25 October 2018, Mr Sun makes reference to his inability to afford a lawyer to represent him in these proceedings, I have no evidence whatsoever of any satisfactory nature concerning Mr Sun's financial position. This is unlike the position with which I dealt in Wollongong City Council v Eldridge [2017] NSWLEC 35, at [180] to [206], where detailed evidentiary material was provided and Mr Eldridge was cross-examined about it. 2. In these proceedings I am unable to make any finding that the penalties to be imposed on Mr Sun should be mitigated in any way because of what he says might be his financial circumstances. 3. It is also appropriate to note that the Prosecutor has sought an order that Mr Sun pay the Prosecutor's costs, an ordinarily appropriate order to make and an approach in these circumstances from which there is no valid reason to depart. I do not have a detailed estimate as to the costs which might be involved, but I do have regard to the extent to which Mr Sun will be liable for the Prosecutor's costs. 4. This is a matter able to be taken into account when determining the appropriate penalty otherwise to be imposed (see Environment Protection Authority v Barnes [2006] NSWCCA 246). Proportionality 1. Two cases were put before the learned Magistrate by the Prosecutor as being those relevant to considering what might be the penalties to be imposed on Mr Sun. Whilst it is not a relevant position for proportionality in my consideration, as I have earlier noted there were negotiations between Mr Sun and the Prosecutor and this document entitled Schedule Award of Prosecution Penalties was made available to Mr Sun and appears to have influenced on the basis of his written submissions, his agreement to entering a plea of guilty. 2. However, in these proceedings, the Prosecutor has not suggested a range of penalties but has merely provided the material that was before the learned Magistrate to assist me in my decision making. It would not be appropriate for the Prosecutor to suggest to what might be an appropriate range of penalties (see Barbaro v The Queen, Saveio Zirilli v The Queen (2014) 253 CLR; [2014] 58 HCA 2). 3. However I note that, in his reasons, the learned Magistrate did not refer to this schedule of penalties. In the individual case that was included in the schedule, a prosecution of Mr George Galea, an order pursuant to the then applicable s 10 of the Sentencing Procedure Act was made with a requirement for a good behaviour bond for 12 months and no conviction was recorded. 4. In the corporate prosecution, one involving Costa Holdings Investments Pty Limited and others in Wentworth Local Court in September 2016, fines for three offences were imposed with the range for those fines between $3,600 and $1,800. In that instance it is recorded in this document that the learned Magistrate imposing those sentences. Magistrate Dunlevy noted the need to uphold the integrity of the regularity system for water use in New South Wales. I am satisfied that that position applies equally in these proceedings. 5. However, I also have regard to the fact that in the context of the negotiations concerning these offences, the schedule of water prosecution penalties was made available to Mr Sun and has influenced his decision to plead guilty in each instance. Aggregation and totality 1. In an instance such as these, where two offences, those in Court Attendance Notice 2 and Court Attendance Notice 17, are charged and they are part of a single course of conduct, it is also then necessary to consider issues of aggregation and totality to make such an allowance as is appropriate with respect to those two offences taken together. Conclusion 1. Having regard to all the facts and circumstances of Mr Sun's offending conduct I have earlier set out the place within the range of offending conduct where I feel his conduct falls. As the Prosecutor correctly draws to my attention, I am also required to have regard to the provisions of s 364A of the Water Management Act. The Prosecutor's written submissions, on pages 13 and 14, sets out the provisions that are said potentially to be engaged. 2. The first of those in s 344A(1)(c) relates to the extent of harm likely to be caused or caused to the environment by the commission of the offence. Although it is well settled as what was discussed by the Chief Judge of the Court in the Environment Protection Authority v Waste Recycling and Processing Corporation 148 LGERA 299; [2006] NSWLEC 419, it is not merely actual harm but threats and risk of harm that are to be taken into account. 3. Given that I have no information as to the quantity of water actually extracted and utilised and therefore diverted from other potential users of the water, I am unable to reach a conclusion as to whether or not there was significant harm, risk of harm or likelihood of harm. 4. Section 364A(1)(d) and A(1)(e), deal with foreseeability and prevention. There is no doubt that Mr Sun was able to foresee what the consequences would be of his activities and that he could have prevented them simply by meeting his lawful obligations. 5. I am satisfied that that is a matter which as part of the instinctive synthesis process requires weighing up in these proceedings. 6. It is equally true that pursuant to s 364A(1)(f), I am required to have regard to the extent to which Mr Sun had control over matters. Despite Mr Sun's attempts in his submissions of 26 October 2018 to blame officers of the department or employees or subcontractors to his Company, I am satisfied that he had entire control over the conduct which gave rise to each of the four offences. 7. Having undertaken the process of instinctive synthesis necessary to determine the appropriate penalty to impose, I have concluded that a starting fine of $8,000 would be appropriate to reflect the culpability of each offence. However, I consider that each of these penalties should be discounted by 20% for what I have accepted was Mr Sun's entry of pleas of guilty and the withdrawal of his earlier not guilty pleas at a relevantly early opportunity. Under all the circumstances, each starting penalty is therefore to be reduced to $6,400. The two offences in Court Attendance Notice 2, and Court Attendance Notice 17, must have a degree of accumulation so that the second of these should be further reduced to $4,800. Orders 1. Therefore follows that the orders of the Court are; 1. The penalty imposed on Hongzhi Sun (the Defendant) for the offence in Court Attendance Notice 2 for a breach of s 91A(2) of the Water Management Act 2000 is set aside; 2. In substitution, the Defendant is fined the sum of $6,400; 3. The penalty imposed on the Defendant for the offence in Court Attendance Notice 6, for breach of s 91B(1) of the Water Management Act 2000 is set aside; 4. In substitution, the Defendant is fined the sum of $6,400; 5. The penalty imposed on the Defendant for the offence in Court Attendance Notice 16 of a breach of s 91K(2) of the Water Management Act 2000 is set aside; 6. In substitution, the Defendant is fined the sum of $6,400; 7. The penalty imposed on the Defendant for the offence in Court Attendance Notice 17 of a breach of s 336C(1) of the Water Management Act 2000 is set aside; 8. In substitution, the Defendant is fined the sum of $4,800; 9. The Defendant is ordered to pay the Prosecutor's cost of the appeal as agreed or assessed. ********** Amendments 20 December 2018 - Counsel for the Respondent was Ms J Single, barrister. 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: 20 December 2018