Dunia v Fairfield City Council - [2010] NSWLEC 217

Land and Environment Court

of New South Wales

CITATION: Dunia v Fairfield City Council [2010] NSWLEC 217

PARTIES:
APPELLANT
Mahmoud Dunia
RESPONDENT
Fairfield City Council

FILE NUMBER(S): 60005 of 2010

CORAM: Sheahan J

KEY ISSUES: APPEAL :- against severity of sentence

LEGISLATION CITED: Crimes (Appeal & Review) Act 2001
Crimes (Sentencing Procedure) Act 1999
Fairfield Local Environmental Plan 1994

CASES CITED: Carlino v Leichhardt Municipal Council [2005] NSWLEC 198; (2005) 144 LGERA 235
Choices Manufacturing Pty Ltd v Fairfield City Council [2009] NSWLEC 72
Environment Protection Authority v Pal [2009] NSWLEC 35
Environment Protection Authority v Pal (No.2) [2009] NSWLEC 60
R v Doan [2000] NSWCCA 317; (2000) 50 NSWLR 115
R v Rahme (1989) 43 A Crim R 81

DATES OF HEARING: 21October 2010

EX TEMPORE JUDGMENT DATE: 21 October 2010

LEGAL REPRESENTATIVES:
APPELLANT
Mr D Provera, Barrister
SOLICITORS
Sachs Gerace Lawyers
RESPONDENT
Mr AJJ Thompson, Solicitor
SOLICITORS
Ritchie & Castellan

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheahan J

21 October 2010

60005 of 2010 Dunia v Fairfield City Council

EXTEMPORE JUDGMENT

1 His Honour: This is an appeal by Mr Dunia in class 6 of the court’s jurisdiction, against the severity of a sentence imposed on him by Fairfield local court for operating a particular type of business, as at a particular time on a particular date (3.30pm on 16 September 2008), without the requisite development approval under Fairfield Local Environmental Plan 1994.

2 It is at least arguable that the appeal was commenced in this court out of time (filed on 24 May 2010, after the local court decision dated 22 April 2010), but an appeal had been lodged at the District Court at Parramatta on 18 May 2010. The prosecutor, very fairly, does not wish to take the point, and, in so far as leave may be required by the Crimes (Appeal & Review) Act 2001, I am prepared to grant it.

3 Likewise, the prosecutor did not press its opposition to a late application (required by 17 September 2010) by the appellant to adduce, in the interests of justice, some further evidence of matters his representative at first instance did not fully develop, and the court granted leave. A further affidavit from the appellant sworn 1 October 2010 was read today, some short oral evidence from him supplemented it, and he was cross-examined by the prosecutor. Regrettable errors in dates added some confusion to the matter, but I draw no adverse conclusion from that.

4 The prosecutor opposes any reduction in the penalty imposed, but does not seek its increase.

5 The appellant asks the court to substitute a much lower fine, but did not press for a s 10 order.

6 The lower court file and the full transcript of those proceedings are before this court on the appeal (Exhibits C1 and C2).

7 The facts may be briefly summarised as follows.

8 The appellant borrowed money to buy a smash repair business at 51A Railway…

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.

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Details

Case: [2010] NSWLEC 217
Decision Date: 21 October 2010

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Mahmoud Dunia appealed against the severity of a sentence imposed by the Fairfield Local Court for operating a business without the requisite development approval. The court had to decide whether the appeal was validly commenced despite being filed out of time, and whether the appellant should be granted leave to adduce further evidence in the interests of justice. Additionally, the court had to determine whether the penalty imposed was appropriate in light of the appellant's financial hardship.

The court found that the appeal was validly commenced despite being filed out of time, and granted leave for the appellant to adduce further evidence. The court considered the evidence and submissions on the appellant's financial hardship, and found that the appellant had demonstrated a modest taxable income and had incurred some hardship as a consequence of his decision to close his business when confronted with the unlawfulness of its continued operation. However, the court found that the appellant had capacity to raise the necessary funds, and his circumstances were not analogous to those in other cases cited.

The court found that the appellant failed to discharge his duties under the planning legislation as a proponent and/or as an operator of a business, and demonstrated little remorse or contrition. The court found that the Magistrate approached the question of penalty in an exemplary way, and the penalty imposed was appropriate in light of the objective seriousness of the offence and the appellant's subjective circumstances. The appeal was dismissed, and the orders of the learned Magistrate will stand. The appellant was ordered to pay the respondent prosecutor's reasonable costs of the appeal, agreed in the sum of $5,000, within six months.

Orders