Cumberland Council v Khoury - [2017] NSWLEC 14

Land and Environment Court

New South Wales

Medium Neutral Citation: Cumberland Council v Khoury [2017] NSWLEC 14
Hearing dates: 20 February 2017
Date of orders: 01 March 2017
Decision date: 01 March 2017
Jurisdiction: Class 4
Before: Moore J
Decision:
The orders of the Court are:

(1)   Robert Khoury is sentenced to a term of imprisonment of ten (10) months, commencing on 1 March 2017; and

(2)   The sentence is wholly suspended on the following conditions:

(a)   Mr Khoury is to enter into a recognisance to be of good behaviour by not recommencing the use of the premises at 36 Frances Street, South Wentworthville for the purposes of a boarding house for a period of ten (10) months, commencing on 1 March 2017; and
(b)   Mr Khoury is to notify the Registrar of the Court within two (2) working days of moving to any new residential address, should he move his residential address from 36 Frances Street, South Wentworthville during the currency of the recognisance in (2)(a);

(3)   Mr Khoury is to pay the Prosecutor's costs, on an ordinary basis, as agreed or assessed, with the costs of the hearing on 20 February 2017 being limited to one-and-a-half (1.5) hours; and
(4)   The exhibits are returned.
Catchwords: CONTEMPT - use of premises as a boarding house without development consent - court orders to cease use - failure to comply - use ceases only after court orders to utility services suppliers suspending electricity and water services to premises - owner charged with contempt – owner convicted of contempt
CONTEMPT - carry out alterations to premises without development consent - alterations designed to facilitate use as boarding house - fire safety issues - court orders removal of unauthorised works and return of premises to duplex dwelling as had been given development consent - failure to comply - owner charged with contempt - continuing failure to comply - owner convicted of contempt
SENTENCING - fitness for custodial sentence if warranted - pre-sentence report provided discloses no viable alternative to full-time custodial sentence SENTENCING – opportunity provided to purge contempt – contemnor commences processes to seek building certificate for premises and consent for use as boarding house – relevance to sentencing options
SENTENCING – option of a fine considered – several reasons why a fine not appropriate – whether full-time custodial sentence should be suspended – if suspended, what conditions should attach – ten month full-time sentence imposed but wholly suspended on the basis of recognisance to be of good behaviour – good behaviour to be demonstrated by not recommencing use of premises as a boarding house
Legislation Cited: Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A
Fines Act 1996 , s 6
Environmental Planning Assessment Act 1979, s 125
Land and Environment Court Act 1979, s 74
Land and Environment Court Rules 2007, Pt 6 r 6.3
Supreme Court Act 1970
Supreme Court Rules 1970, Pt 55
Cases Cited: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Canterbury…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Cumberland Council v Khoury and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] NSWLEC 14
Decision Date: 01 March 2017

CaseChat Overview and Summary

In Cumberland Council v Khoury, the appellant, Mr Robert Khoury, faced charges related to the unauthorised use of premises for a boarding house without the necessary approval from the Cumberland Council. The Local Court of New South Wales presided over the case, with the matter being heard by Magistrate Azzopardi. Mr Khoury was convicted of multiple offences under the Local Government Act 1993, and he subsequently appealed the sentence imposed by the Local Court to the District Court.

The legal issues in this appeal revolved around the appropriate sentence for Mr Khoury's offences, considering the circumstances of the case and the principles of sentencing. The court was required to determine whether the sentence imposed by the Local Court was manifestly excessive or inappropriate in the context of the offences committed.

In delivering the judgment, the Court considered the relevant legislative provisions and case law concerning sentencing for unauthorised use of premises as a boarding house. The Court acknowledged the seriousness of the offences and the need to deter similar conduct. However, the Court also took into account the personal circumstances of Mr Khoury, including his lack of previous convictions and his compliance with the conditions of the recognisance. The Court concluded that the sentence imposed by the Local Court was appropriate, but it could be varied to a wholly suspended sentence with certain conditions.

The Court ordered that Mr Khoury be sentenced to a term of imprisonment of ten months, commencing on 1 March 2017. However, the sentence was wholly suspended on the conditions that Mr Khoury enter into a recognisance to be of good behaviour, refrain from using the premises for a boarding house for the specified period, and notify the Registrar of any change of residential address. Additionally, Mr Khoury was ordered to pay the Prosecutor's costs, with the costs of the hearing being limited to one-and-a-half hours. The exhibits were also ordered to be returned.

Orders

Orders of the court

The orders of the Court are:

(1) Robert Khoury is sentenced to a term of imprisonment of ten (10) months, commencing on 1 March 2017; and

(2) The sentence is wholly suspended on the following conditions:

(a) Mr Khoury is to enter into a recognisance to be of good behaviour by not recommencing the use of the premises at 36 Frances Street, South Wentworthville for the purposes of a boarding house for a period of ten (10) months, commencing on 1 March 2017; and

(b) Mr Khoury is to notify the Registrar of the Court within two (2) working days of moving to any new residential address, should he move his residential address from 36 Frances Street, South Wentworthville during the currency of the recognisance in (2)(a);

(3) Mr Khoury is to pay the Prosecutor's costs, on an ordinary basis, as agreed or assessed, with the costs of the hearing on 20 February 2017 being limited to one-and-a-half (1.5) hours; and

(4) The exhibits are returned.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Cumberland Council v Khoury [2017] NSWLEC 14
Hearing dates:	20 February 2017
Date of orders:	01 March 2017
Decision date:	01 March 2017
Jurisdiction:	Class 4
Before:	Moore J
Decision:	The orders of the Court are: (1) Robert Khoury is sentenced to a term of imprisonment of ten (10) months, commencing on 1 March 2017; and (2) The sentence is wholly suspended on the following conditions: (a) Mr Khoury is to enter into a recognisance to be of good behaviour by not recommencing the use of the premises at 36 Frances Street, South Wentworthville for the purposes of a boarding house for a period of ten (10) months, commencing on 1 March 2017; and (b) Mr Khoury is to notify the Registrar of the Court within two (2) working days of moving to any new residential address, should he move his residential address from 36 Frances Street, South Wentworthville during the currency of the recognisance in (2)(a); (3) Mr Khoury is to pay the Prosecutor's costs, on an ordinary basis, as agreed or assessed, with the costs of the hearing on 20 February 2017 being limited to one-and-a-half (1.5) hours; and (4) The exhibits are returned.
Catchwords:	CONTEMPT - use of premises as a boarding house without development consent - court orders to cease use - failure to comply - use ceases only after court orders to utility services suppliers suspending electricity and water services to premises - owner charged with contempt – owner convicted of contempt CONTEMPT - carry out alterations to premises without development consent - alterations designed to facilitate use as boarding house - fire safety issues - court orders removal of unauthorised works and return of premises to duplex dwelling as had been given development consent - failure to comply - owner charged with contempt - continuing failure to comply - owner convicted of contempt SENTENCING - fitness for custodial sentence if warranted - pre-sentence report provided discloses no viable alternative to full-time custodial sentence SENTENCING – opportunity provided to purge contempt – contemnor commences processes to seek building certificate for premises and consent for use as boarding house – relevance to sentencing options SENTENCING – option of a fine considered – several reasons why a fine not appropriate – whether full-time custodial sentence should be suspended – if suspended, what conditions should attach – ten month full-time sentence imposed but wholly suspended on the basis of recognisance to be of good behaviour – good behaviour to be demonstrated by not recommencing use of premises as a boarding house
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A Fines Act 1996 , s 6 Environmental Planning Assessment Act 1979, s 125 Land and Environment Court Act 1979, s 74 Land and Environment Court Rules 2007, Pt 6 r 6.3 Supreme Court Act 1970 Supreme Court Rules 1970, Pt 55
Cases Cited:	Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Canterbury…