Citation: Erector Group Pty Ltd v Burwood Council; Liverpool Developing Pty Ltd v Burwood Council [2018] NSWCCA 56
Court: Court of Criminal Appeal (NSW)
Date: 6 April 2018
Judges: Bathurst CJ; Hoeben CJ at CL; Button J
Background
A property developer and its related building company carried out excavation work at a site in Enfield without first obtaining a construction certificate or appointing a principal certifying authority, as required by the Environmental Planning and Assessment Act 1979 (NSW) and the terms of the development consent. Both steps were legally required before building work could commence.
The day after the excavation, an adjoining building collapsed and several other neighbouring buildings were damaged. Both companies pleaded guilty in the Land and Environment Court to charges of failing to comply with s 81A(2) of the EPA Act and condition 26 of the development consent.
At sentencing, the primary judge treated the damage to the adjoining buildings as an aggravating factor, finding it had "in all probability" been caused by the offending conduct. The companies appealed, contesting both the causation finding and whether taking that damage into account amounted to punishing them for a separate, uncharged offence.
Legal Issues
- Whether the sentencing judge applied the correct standard of proof in finding that the building damage was caused by the offending excavation work
- Whether the evidence was sufficient to establish that causal link beyond reasonable doubt
- Whether treating the building damage as an aggravating factor amounted to punishing the offenders for a separate, uncharged offence under the De Simoni principle (that is, sentencing someone as though they had committed a more serious offence with which they were not charged)
Decision
On the standard of proof, the Court held that the phrase "in all probability," used by the sentencing judge, was not technically ideal but was being deployed as a substitute for "beyond reasonable doubt." No error arose from the choice of words alone.
However, the Court found the causation finding could not stand on the evidence available. There was no evidence excluding the possibility that the initial demolition work (which predated the charged offences) had caused the damage, and no evidence that compliance with s 81A(2) or condition 26 would have prevented the collapse. The prosecution had not established the causal connection to the required standard.
On the De Simoni ground, the Court rejected the argument that the sentencing judge had punished the appellants for a separate regulatory offence under cl 98E(1) of the Environmental Planning and Assessment Regulation 2000 (which requires builders to protect, support, or underpin adjoining buildings). The sentencing judge had sentenced the appellants for the charged offences, not for breaching cl 98E(1). The Court did not need to resolve whether the "more serious offence" comparison under De Simoni turns on maximum penalty or objective seriousness.
With the aggravating factor removed, the Court resentenced both companies. Applying a 22% reduction for the utilitarian value of their guilty pleas and a 50% totality reduction to reflect that the two related companies were effectively one enterprise, it imposed reduced fines.
Orders Made
- Appeal allowed
- Orders of the primary judge set aside (except the costs order below)
- Liverpool Developing Pty Ltd convicted and fined $20,000 on the first charge; fined $15,000 on the second charge
- Erector Group Pty Ltd convicted and fined $20,000 on the first charge; fined $15,000 on the second charge
Key Takeaways
- A sentencing court must establish aggravating factors, including that an offence caused substantial damage, to the criminal standard of proof (beyond reasonable doubt); mere probability is insufficient, even if loosely expressed language suggests otherwise.
- Insufficient evidence existed here to satisfy that standard: without proof ruling out the earlier demolition work as the cause, and without proof that compliance with the charged provisions would have averted the collapse, the causal link failed.
- The De Simoni principle prohibits sentencing an offender as though guilty of a more serious uncharged offence; it does not prevent a court from considering the consequences of the charged conduct, provided those consequences are properly linked to the offence actually charged.
- The Court of Criminal Appeal left unresolved whether the "more serious offence" comparison under De Simoni is determined by reference to maximum penalty or to the objective seriousness of the offence in question.
- Where multiple related corporate offenders are effectively the same enterprise, the principle of totality may warrant a significant reduction in the aggregate penalty to avoid the number of defendants inflating the overall sentence beyond what the criminality warrants.
Legislation and Cases Referenced
Legislation
- Environmental Planning and Assessment Act 1979 (NSW), ss 76A(1), 81A(2), 125(1)
- Environmental Planning and Assessment Regulation 2000 (NSW), cl 98E(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(g)
- Criminal Appeal Act 1912 (NSW)
Cases
- R v De Simoni (1980) 147 CLR 383; [1981] HCA 31
- R v Dookheea (2017) 91 ALJR 960; [2017] HCA 36
- Cassidy v The Queen (2012) 220 A Crim R 420; [2012] NSWCCA 68
- Royall v The Queen (1990) 172 CLR 378; [1991] HCA 27
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Burns v The Queen (2012) 246 CLR 334; [2012] HCA 35
- R v Pham (2015) 256 CLR 550; [2015] HCA 39
- Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304; [2001] NSWCCA 280
- Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34