Kovacevic v Queanbeyan City Council

[2017] NSWLEC 40

Land and Environment Court

New South Wales

Medium Neutral Citation:	Kovacevic v Queanbeyan City Council [2017] NSWLEC 40
Hearing dates:	5 April 2017
Date of orders:	05 April 2017
Decision date:	05 April 2017
Jurisdiction:	Class 6
Before:	Pain J
Decision:	(1) The application for leave to appeal is dismissed. (2) The Applicant is to pay the Council’s costs of this application.
Catchwords:	APPEAL – leave to appeal against severity of sentence in local court – whether leave to appeal out of time should be granted – interests of justice justifying grant of leave to appeal not established – inadequate explanation of delay
Legislation Cited:	Crimes (Appeal and Review) Act 2001 ss 31, 33, 36 Environment Planning and Assessment Act 1979 s 125 Queanbeyan Local Environmental Plan 1998
Cases Cited:	Herron v Attorney-General for NSW (1987) 8 NSWLR 601
Category:	Procedural and other rulings
Parties:	Mary Lucy Kovacevic (Applicant) Queanbeyan City Council (Respondent)
Representation:	COUNSEL: H Marjason, solicitor (Applicant) A Herring, solicitor (Respondent)   SOLICITORS: Marjason & Marjason Solicitors (Applicant) Herring & Associates (Respondent)
File Number(s):	16/389608
Decision under appeal	Court or tribunal: Queanbeyan Local Court Jurisdiction: Criminal Date of Decision: 30 September 2016 Before: Magistrate Antrum File Number(s): 2011/366061

EX TEMPORE Judgment

1. The Applicant seeks leave to appeal under s 31 of the Crimes (Appeal and Review) Act 2001 (Appeal and Review Act) against the severity of a sentence imposed on her in the Queanbeyan Local Court. The application was brought by Summons Seeking Leave to Appeal filed on 29 December 2016. Leave is required because the appeal was not made within 28 days after the sentence was imposed, as specified in s 31(2)(a). Leave to appeal out of time can be made because the summons commencing an appeal was made within three months of the sentence being imposed, s 33(2).

2. Under s 36(2) of the Appeal and Review Act the Court must not grant leave to appeal in relation to an application under s 33(2) unless the Court is satisfied that it is in the interests of justice that leave be granted. The Court also considers the reasons for delay in filing an appeal. The interests of justice are broad per Herron v Attorney-General for NSW (1987) 8 NSWLR 601 at 613 per Kirby P. As the Council submitted the interests of justice require consideration of the position of all parties before the Court not the Applicant only.

3. The matter has a lengthy chronology following the Applicant’s decision to plead not guilty in relation to a penalty infringement notice (PIN) she received from the Council in August 2009. At issue was the parking of trucks on her property in Collett Street Queanbeyan, an activity characterised as a transport depot which required development consent under the then Queanbeyan Local Environmental Plan 1998 (LEP).

4. Mr Marjason solicitor swore an affidavit dated 3 March 2017 which he read in this application. This set out the history of the matter to date, as identified in the following chronology.

6 Aug 2009	The Council ordered Applicant to cease use of premises as a “transport depot” (for which development consent is required) by issuing her with a PIN.
2 Nov 2011	Court attendance notice issued. Applicant charged with an offence under s 125 of the Environment Planning and Assessment Act 1979 for failing to cease use of premises as “transport depot” contrary to order.
11 Sept 2012	Charge dismissed in the Queanbeyan Local Court.
21 Aug 2013	Dismissal appealed by the Council to the Land and Environment Court of NSW.
25 Sept 2015	Appeal allowed. Matter remitted to the Local Court.
23 May 2016	Applicant filed summons in Court of Appeal of NSW seeking, by way of judicial review, to have the decision of Craig J in this Court set aside on basis that the Council did not having standing to appeal as a “prosecutor” and that his Honour misconstrued the words “transport depot” per the LEP.
28 June 2016	Applicant convicted in in remitted matter in the Local Court.
26 Sept 2016	Court of Appeal hearing.
30 Sept 2016	Sentence in the Local Court. Applicant fined $8,800 and ordered to pay Council’s costs of $11,000.
13 Dec 2016	Summons dismissed by Court of Appeal.
29 Dec 2016	Summons filed in this Court seeking leave to appeal severity of the Local Court sentence.

5. The reasons for the delay in commencing the appeal are set out in the following paragraphs of Mr Marjason’s affidavit as follows:

13.   The solicitor now on record advised Ms Kovacevic that an appeal could be made in relation to the severity of the sentence imposed by His Honour Magistrate Antrum.

14.   After Ms Kovacevic was sentenced in the NSW Local Court she had considered a High Court appeal which essentially delayed instructions to file a severity appeal in the Land and Environment Court NSW.

15.   Due to the lengthy nature of this matter Ms Kovacevic originally advised she needed time to consider bringing another appeal and needed to consider the impact a conviction, the fine and Order for costs would have on her and her business notwithstanding the other Costs of the Land and Environment Court proceedings and Court of Appeal proceedings.

16.   After consideration, Ms Kovacevic instructed me to file a severity appeal to the Land and Environment Court, I advised that she was outside the time limitation to bring an appeal however still within the 3-month limitation period to file an appeal where leave of the Court would be required to hear the appeal.

17.   I am instructed that Ms Kovacevic says that the sentence imposed against her is excessive and too harsh considering the objective seriousness of the offence which was only that she was parking her trucks on her property. She was not causing environmental damage. It was simply the case that the council considered she was using her property as a transport depot in relation to the operation of her driving school business. She maintained it was not a transport depot.

6. Oral submissions were made by Mr Marjason to the effect that instructions were obtained from the Applicant in late November 2016, after the 28 day period of an appeal as of right had elapsed at the end of October 2016. According to Mr Marjason’s affidavit the Applicant was advised of her rights of appeal in time. An appeal was filed on 29 December 2016. As the Council submitted there is no explanation for the delay in giving instructions other than that the Applicant was considering her position including in relation to whether she would appeal to the High Court. If that is a reason I find it is an inadequate explanation.

7. An appeal against the severity of a sentence is a hearing de novo in this Court. It is not necessary to find error in the exercise of the sentencing discretion of the presiding magistrate. I have been referred to the sentencing remarks of the presiding magistrate at Queanbeyan Local Court on 30 September 2016 when the penalty was imposed. The magistrate appeared to be fully cognisant of the objective and subjective matters relevant to sentencing in the matter before him. The offence is held to be one of low objective seriousness and the penalty of $8,800 is commensurate with that finding. There is no obvious error in the exercise of the magistrate’s decision and that is relevant to my consideration in this application as it informs my consideration of the merit of any appeal against the severity of the sentence. These remarks suggest that the prospects of success of any sentencing appeal are very low in my view.

8. In a sentencing severity appeal in this Court additional matters can be placed before the Court as it is a hearing de novo. No evidence has been filed by the Applicant identifying what additional matters would be placed before the Court were leave to be granted. Reliance was largely placed on the history of the matter, which I accept is lengthy and costly. That circumstance also suggests that there has been more than enough litigation in this matter which is costly in both time and money for the Council as much as the Applicant.

9. In submissions from the bar table the Applicant’s solicitor identified matters such as capacity to pay a fine and the potential for a criminal conviction to impact on the Applicant’s livelihood of running a driving school which requires an operating licence. No evidence to that effect has been provided. It is therefore impossible to weigh up the significance of any such evidence in balancing the respective interests of justice for the parties in this matter. The Applicant was represented by a solicitor in the Local Court and such matters could have been adduced then.

10. The Applicant has not demonstrated in this application for leave to appeal any basis to exercise my discretion in her favour. The application for leave to appeal is dismissed. As the Applicant is unsuccessful in this application and costs follow the event she should pay the Council’s costs of this application.

Orders

11. The Court makes the following orders:

1. The application for leave to appeal is dismissed.

2. The Applicant is to pay the Council’s costs of this application.

**********

Decision last updated: 06 April 2017