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Court of Criminal Appeal 27 May 2004

Chin v. Ryde City Council [2004] NSWCCA 167 revised - 10

[2004] NSWCCA 167

Other
CRIMINAL LAW ENVIRONMENT LAW LOCAL GOVERNMENT APPEAL CRIMINAL LAW APPEAL AGAINST SENTENCE

Citation: Chin v Ryde City Council [2004] NSWCCA 167; (2004) 133 LGERA 312
Court: Court of Criminal Appeal, New South Wales
Date: 27 May 2004
Judge(s): Hodgson JA; Levine J; Hidden J

Background

The appellant was the registered proprietor of a duplex property in North Ryde, zoned Residential 2A under the Ryde Planning Scheme Ordinance. The property comprised two two-storey joined buildings, each internally configured so that the ground floor and first floor operated as separate, self-contained dwellings with independent kitchens, lockable doors, and separate tenancy arrangements. The appellant disputed this characterisation, but the primary judge accepted the evidence of tenants over his own account.

Ryde City Council inspected the property on 21 November 2001 and found that it was being used as a residential flat building, a prohibited purpose within the zone. After the Council issued orders requiring the use to cease and certain structural changes to be made, the appellant complied by early April 2002. The Council nonetheless proceeded with a prosecution under s 125(1) of the Environmental Planning and Assessment Act 1979 (EPA Act), and the primary judge in the Land and Environment Court convicted the appellant and fined him $7,500.

The appellant appealed to the Court of Criminal Appeal against both the conviction and the sentence.

  • Whether s 125(1) of the EPA Act, properly construed, precluded a prosecution once the appellant had complied with the Council's directions to cease the prohibited use
  • Whether the 12-month limitation period in s 127(6) of the EPA Act barred the prosecution, given the date the use was said to have commenced
  • Whether the sentencing judge failed to properly apply s 10 of the Crimes (Sentencing Procedure) Act 1999 by not adequately considering the factors in s 10(3)
  • Whether the $7,500 fine was manifestly excessive

Decision

Conviction appeal: continuing offence

The central argument on conviction was that because the appellant had complied with the Council's directions, s 125(1) no longer permitted a prosecution. The court rejected this. The offence under s 125(1) is the carrying out of prohibited development, which in this context meant the ongoing use of land. Use of land is a continuous act: the offence is not committed only at the moment the prohibited use commences, but persists for as long as the use continues. The fact that compliance followed the Council's orders did not retrospectively extinguish the offence that had occurred.

Limitation period

The appellant also argued that the 12-month limitation period had expired before proceedings were commenced, calculated from when the prohibited use first began. The court rejected this as well, on the basis that a continuing offence runs for as long as the use continues. Because the use was still ongoing at the date identified in the charge (21 November 2001), and proceedings were commenced within 12 months of that date, the limitation point did not assist the appellant.

Sentence appeal

The primary judge had referred to s 10 of the Crimes (Sentencing Procedure) Act 1999 (which allows a court to record a conviction or impose no further penalty in appropriate cases) but declined to apply it. The appellant argued that the judge had failed to work through the factors in s 10(3) systematically. The court accepted, as a working assumption, that a judge who invokes s 10 should consider all relevant factors under that provision. However, it found that the primary judge had in fact addressed the relevant considerations in the course of the judgment, including the appellant's cooperation with the Council. The court also noted that the primary judge properly weighed the absence of a guilty plea, the appellant's contested evidence conflicting with the tenants, and his apparent refusal to accept the finding of guilt as relevant to contrition and remorse. The fine of $7,500 was not manifestly excessive.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted; appeal against sentence dismissed
  • Appellant to pay the respondent's costs of the appeal and application

Key Takeaways

  • Using land for a prohibited purpose under the EPA Act is a continuing offence: liability does not end at the moment use commences, but persists throughout the period of use.
  • Compliance with a Council order to cease a prohibited use does not retrospectively bar a prosecution for the offence that took place during the period of non-compliance.
  • The 12-month limitation period in s 127(6) of the EPA Act runs from the date of the offence as charged; where the offence is continuing, time runs from within the period of continuation identified in the charge rather than from the date the use first began.
  • Where a sentencing judge refers to s 10 of the Crimes (Sentencing Procedure) Act 1999, the relevant factors in s 10(3) should be considered, even if this is not formally requested. However, no error arises if those factors were substantively addressed elsewhere in the judgment.
  • An absence of a guilty plea, evidence given at trial that conflicts with findings of fact, and an apparent failure to accept the verdict are all matters properly weighed against a finding of contrition and remorse when considering whether to apply s 10.

Legislation and Cases Referenced

Legislation:
- Environmental Planning and Assessment Act 1979 (NSW), ss 4, 76B, 125, 127
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10

Cases cited:
- NSW Crime Commission v Kelly [2003] NSWSC 56
- Rao v Canterbury City Council [2000] NSWCCA 471
- R v Piccin (No 2) [2001] NSWCCA 323