FILE NO: 3667/2017 DELIVERED ON: 24 August 2018 DELIVERED AT: Hobart HEARING DATE: 14 June 2018 JUDGMENT OF: Pearce J
CATCHWORDS:
Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Sentencing – Sentence manifestly excessive or inadequate – Multiple breaches of planning and building legislation by demolition of heritage listed house and trees – Commercial development aspect – House contained asbestos – Total fine of $225,000 not manifestly excessive.
Environment and Planning – Environmental planning – Planning and development prosecutions – Sentencing – Demolition of heritage listed house and trees without planning permit.
Environment and Planning – Pollution – Air pollution – Offences – Penalty – Environmental nuisance – House demolition resulting in release of asbestos fibres into atmosphere.
Counsel: Applicant: T Kovacic First Respondent: F Cangelosi Second Respondent: S Thompson Solicitors: Applicant: Leonard Fernandez First Respondent: Simmons Wolfhagen Second Respondent: Director of Public Prosecutions
Judgment Number: [2018] TASSC 38 Number of paragraphs: 46
Serial No 38/2018
File No 3667/2017
DARKO KRAJINOVIC v NICHOLAS HEATH and DALE WEBSTER
REASONS FOR JUDGMENT PEARCE J
24 August 2018
The applicant moves to review a sentence imposed on him by a magistrate, Mr S Cooper, on 5 December 2017. On 26 February 2017 the applicant demolished the house at 55 Mt Stuart Road in Hobart, and cut down two trees on the land. As will be explained, by doing so he committed offences under the Land Use Planning and Approvals Act 1993, the Building Act 2016, the Building Regulations 2016, the Environmental Management and Pollution Control Act 1994 and the Occupational Licensing Act 2005. He pleaded guilty to nine offences across two complaints. Eight counts are on one complaint in which the first respondent, as General Manager of the Hobart City Council, was the complainant. For those counts the magistrate imposed one sentence, a fine of $205,000. The remaining count was on a separate complaint, in which the second respondent, as Administrator of Occupational Licensing, was the complainant. For that count the magistrate imposed a separate sentence and fined the applicant $20,000. A further order was made that the applicant pay the costs of both the complainants.
The sole ground of appeal is that the sentence, a total fine of $225,000, is manifestly excessive. For the following…
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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AGLC
Krajinovic v Heath [2018] TASSC 38
Case
[2018] TASSC 38
Decision Date
CaseChat Overview and Summary
The case of Krajinovic v Heath involves an appeal against a sentence imposed by the Magistrates Court of Tasmania. The appellant, Krajinovic, was fined $225,000 for multiple breaches of planning and building legislation, including the demolition of a heritage-listed house and trees, as well as the presence of asbestos in the house. The appeal was brought on the grounds that the sentence was manifestly excessive or inadequate.
The primary legal issue before the court was whether the total fine of $225,000 was manifestly excessive or inadequate. The court had to consider the severity and nature of the offences, the presence of aggravating factors such as the commercial development aspect, and the overall impact of the demolition on the community. The court also needed to determine if the fine was proportionate to the breaches of planning and building legislation and if it adequately reflected the seriousness of the offence.
In delivering its judgment, the court carefully examined the evidence and the circumstances surrounding the demolition of the heritage-listed house. It considered the commercial aspect of the development, the presence of asbestos, and the impact on the community. The court concluded that the total fine of $225,000 was not manifestly excessive or inadequate, taking into account the severity of the offences and the need to deter future breaches of planning and building legislation. The court found that the fine was proportionate to the breaches committed and adequately reflected the seriousness of the offence.
The court dismissed the appeal and upheld the original sentence imposed by the Magistrates Court. The appellant was required to pay the total fine of $225,000 for the multiple breaches of planning and building legislation.