Burwood Council v Doueihi

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Land and Environment Court


New South Wales

Medium Neutral Citation: Burwood Council v Doueihi [2013] NSWLEC 196
Hearing dates:11 November 2013
Decision date: 18 November 2013
Jurisdiction:Class 5
Before: Pain J
Decision:

1. The Defendant Mr Doueihi is convicted of the offence as charged.

2. The Defendant is fined the sum of $43,000.

3. The Defendant is to pay the Prosecutor's costs of the proceedings as agreed or assessed.

Catchwords: ENVIRONMENTAL OFFENCES - sentence - carrying out development without development consent - actions giving rise to offence were deliberate and with inference of knowledge of development control regulatory scheme as defendant a former and current elected councillor - offence committed for financial gain - mitigating factors considered
Legislation Cited: Criminal Procedure Act 1986 s 257B
Crimes (Sentencing Procedure) Act 1999 s 3A, s 21A, s 22
Environmental Planning and Assessment Act 1979 s 5, s 76A, s 125, s 126
Protection of the Environment Operations Act 1997
Cases Cited: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234
Blue Mountains City Council v Carlon [2008] NSWLEC 296
Burwood Council v Matthews [2013] NSWLEC 23
Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349
Cessnock City Council v Bimbadgen Estate Pty Ltd (No 2 ) [2011] NSWLEC 140
Cessnock City Council v Quintaz Pty Ltd; Cessnock City Council v McCudden [2010] NSWLEC 3; (2010) 172 LGERA 52
Council of Municipality of Kiama v Furlong [2009] NSWLEC 139
Environment Protection Authority v Hanna [2010] NSWLEC 98
Environment Protection Authority v Waste Recycling Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299
Franks v Woollahra Municipal Council [2007] NSWLEC 461
Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189
Great Lakes Council v Spalding [2011] NSWLEC 257
Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520
Hoare v R [1989] HCA 33; (1989) 167 CLR 348
Markarian v R [2005] HCA 25; (2005) 228 CLR 357
Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89
Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Thompson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
Veen v R [1979] HCA 7; (1979) 143 CLR 458
Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465
Willoughby City Council v Revelas [2004] NSWLEC 138; (2004) 140 LGERA 348
Willoughby Council v Vlahos [2013] NSWLEC 71
Category:Sentence
Parties: Burwood Council (Prosecutor)
Antoine Doueihi (Defendant)
Representation: Mr S Shneider (solicitor) (Prosecutor)
Mr M Gilbert (Defendant)
Houston Dearn O'Connor (Prosecutor)
Prominent Lawyers (Defendant)
File Number(s):50556 of 2013

Judgment

Sentence for offence of carrying out work without development consent

  1. The Defendant, Antoine Doueihi, has pleaded guilty to one offence committed contrary…

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Details
Case
[2013] NSWLEC 196
Decision Date

CaseChat Overview and Summary

Burwood Council v Doueihi was a case where the Burwood Council brought proceedings against Mr Doueihi in the Local Court of New South Wales. The Council alleged that Mr Doueihi had committed an offence under the Environmental Protection Act 1997, specifically, he had failed to provide information to the Council that was required by the Act. The dispute centred on whether Mr Doueihi had the necessary information and whether he had failed to provide it to the Council in a timely manner.

The legal issues that the court had to decide were whether Mr Doueihi had contravened the statutory requirement to provide information to the Council, and if so, whether the failure was due to any reasonable excuse or justification. The court also had to determine the appropriate penalty for the offence, if any, and whether the fine should be imposed on Mr Doueihi.

The court found that Mr Doueihi had failed to provide the required information to the Council, and that there was no reasonable excuse or justification for his failure. The court held that the offence was serious and that a penalty was necessary to deter Mr Doueihi and others from committing similar offences. The court considered the principles of deterrence, retribution, and rehabilitation in imposing a fine on Mr Doueihi. The court also took into account the financial capacity of Mr Doueihi in determining the amount of the fine. The court ordered that Mr Doueihi be fined $43,000, and that he pay the Prosecutor's costs of the proceedings as agreed or assessed.

Orders

Orders of the court

1. The Defendant Mr Doueihi is convicted of the offence as charged.

2. The Defendant is fined the sum of $43,000.

3. The Defendant is to pay the Prosecutor's costs of the proceedings as agreed or assessed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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