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Norman Waterhouse

Record penalties imposed in successful Council prosecution

Rural City of Murray Bridge v Shires (No 2) [2020] SAERDC 31

In a recent prosecution brought by Norman Waterhouse on behalf of the Rural City of Murray Bridge (Council), the Environment, Resources and Development Court has convicted the defendant on all counts and imposed a record penalty.

Facts of the case

The defendant, Ms Holly Shires, owns land within the Council area. From August 2017 and continuing over an eighteen month period, she undertook multiple counts of unlawful development on the land. The offences included the placement of transportable buildings on the land, associated site works and the connection of those buildings to the usual utilities. She then leased the land for use as an office and then as a residence (and undertook further unlawful development in doing so, namely a change in the use of the land without approval). She also failed to comply with two enforcement notices issued by the Council during the period, and she hindered or obstructed Council officers in the lawful exercise of their duties while undertaking their investigations, including by striking one of those officers with a shovel across the buttocks.

The complaint

The Council charged Ms Shires with seven offences in total. She pled guilty to one of those offences on the first day of trial (the placement of the transportable hut on the land) and changed her plea to guilty in relation to a second offence during the trial (failure to comply with a s84 enforcement notice). She pled not guilty to all other charges.

Following a six day trial, the Court found Ms Shires guilty of the remaining five counts. The Court rejected the defendant’s claim that the remaining five counts formed part of the same offending comprising the two counts to which she had pled guilty. Each count was found to relate to a separate and discrete breach of the Act.

In relation to the charge of hindering/obstructing an authorised officer, the defendant attempted to argue that she did not have to allow the entry of Council officers onto her land as these officers were trespassers. The Court rejected this.

Record penalties and costs orders made

Following the Court’s findings of guilt, the defendant was required to be sentenced for that offending.

However, during the intervening period between the Court’s findings of guilt and the sentencing hearing, the defendant had rather astoundingly undertaken further unlawful development on the land: She removed the unlawful transportable buildings from the land, and replaced them with another transportable dwelling (which had been granted Development Plan consent only at that time). We argued, on behalf of the Council, that this further action by the defendant demonstrated that she had not rehabilitated in any way and that her conduct since the Court’s verdict supported the strong need for specific deterrence in this case.

The Court found that Ms Shires had prior knowledge about the requirement to obtain development approval before undertaking development, and that she continued to breach the Act and in further defiance of warning letters and enforcement notices issued by the Council requiring her to stop. It also found that Ms Shires, a property manager, had been motivated by commercial gain to obtain leasing income from the land. The Court found that in addition to this motivation for profit, the case demonstrated offending that was part of a deliberate conduct consisting of a series of criminal acts. The Court agreed with our submissions that the defendant had been unwilling to face up to the consequences of her actions. Her evidence had been to the effect that nothing had ever been her fault and had always been a result of someone else not doing their job or not assisting her fully enough. That attitude, the Court found, required some measure of specific deterrence particularly in light of her most recent conduct after the verdict. The Court found that there was a high likelihood that this defendant would reoffend, that she had shown no remorse for her offending, had accepted no responsibility for her actions and demonstrated no insight into her behaviour, and that she was not contrite.

The Council sought, and was granted, an order for its costs on a higher scale than usual on the basis that after a six day trial, the defendant had not put up any real contest in respect of the factual matters proved, and while there had been many opportunities to agree matters which were obviously not in dispute, she had not taken that opportunity which added to the length of the trial and the cost to the Council. Her extensive cross examination of the Council’s witnesses was; “often misdirected, irrelevant and unnecessary lengthy”.

The total of the notional penalties in this case, in relation to the seven offences, was $164,000.

In determining the penalty imposed on Ms Shires, the Court considered a number of sentencing principles, including whether a penalty of that magnitude would be crushing. It determined that it would be crushing, and reduced it by 30%, resulting in a total penalty of $114,800. As far as we can recall, this is a record penalty in relation to prosecutions that have been taken by a Council in the ERD Court for breaches of the Development Act 1993.

Given Ms Shires guilty pleas were made late, and although she was entitled to a discount of 10% for making those guilty pleas, the Court, in its discretion, did not give her the benefit of a 10% discount because there was no good reason to do so. The trial in the matter did not benefit from those pleas and the case against her in any event had been very strong.

For more specific information on any of the material contained in this article please contact Claire Ryan on +61 8 8210 1294 or CRyan@normans.com.au.

Posted

6 October 2020

Audience

Government

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