Lewis v Mangano and Mangano - [2015] VSC 592

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2015 00892

IN THE MATTER OF an appeal on a question of law pursuant to s 272(1) of the Criminal Procedure Act 2009

BETWEEN

PAUL LEWIS and MORNINGTON PENINSULA SHIRE COUNCIL	Appellants
v
ANTOINETTA MANGANO	Respondent

S CI 2015 00893

PAUL LEWIS and MORNINGTON PENINSULA SHIRE COUNCIL	Appellants
v
SANTO MANGANO	Respondent

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JUDGE:	ZAMMIT J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 October 2015
DATE OF JUDGMENT:	28 October 2015
CASE MAY BE CITED AS:	Lewis & Anor v Mangano & Mangano
MEDIUM NEUTRAL CITATION:	[2015] VSC 592

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JUDICIAL REVIEW – Question of law – Manifest inadequacy – Sentencing guidelines – Specific and general deterrence – Gravity of offending – Breach of the Planning and Environment Act 1987 (Vic) – Illegal vegetation removal – Illegal earthworks - Planning and Environment Act 1987 (Vic) s 126, s 127 – Criminal Procedure Act 2009 (Vic) s 272, s 290 – Sentencing Act 1991 (Vic) s 5, Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr J Shaw	Mornington Legal
For the Respondents	Mr M Simon	LFS Legal

HER HONOUR:

Background

On 5 February 2015 in the Frankston Magistrates’ Court, the respondents were convicted and fined an aggregate of $500 each for breaching s 126(1) of the Planning and Environment Act 1987 (Vic) (‘the Act’). Antoinetta Mangano was found guilty of two breaches of s 126(1) of the Act and Santo Mangano was found guilty of three breaches of s 126(1) of the Act.

The appellants now appeal against the sentences imposed by Magistrate Smith on questions of law pursuant to s 272(1) of the Criminal Procedure Act 2009 (Vic) (‘the CPA’). There are two proceedings on foot, proceeding number SCI 2015 00892, in which Antoinetta Mangano is the respondent, and proceeding number SCI 2015 00893, in which Santo Mangano is the respondent. Paul Lewis and Mornington Shire Council are the appellants in both proceedings. While there are separate proceedings on foot, the notices of appeal and the affidavits in support and legal submissions in the proceedings are effectively identical. As the two separate appeals relate to substantively similar subject matter, I will aggregate the appeals together in my reasons below.

The questions of law in the appellants’ notices of appeal dated 26 February 2015 are:

(a)Did the learned Magistrate err by imposing a sentence on the respondents that was manifestly inadequate?
(b)Did the learned Magistrate err by imposing a sentence on the respondents that was not reasonably open to his Honour in all the circumstances of the case?

The grounds of appeal are:

(a)The sentences imposed were manifestly inadequate.
(b)The sentences imposed were not reasonably open to the learned Magistrate in all the circumstances of the cases.

The appellants seek orders that the appeal be allowed, that Magistrate Smith’s sentences be quashed and that the respondents be re-sentenced.

The appellants rely on the affidavits of:

(a) Anthony Donald Snooks…

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.

Continue reading Lewis v Mangano and Mangano

Details

AGLC: Lewis v Mangano and Mangano [2015] VSC 592
Case: [2015] VSC 592
Decision Date: 28 October 2015

CaseChat Overview and Summary

The appeal was brought by the respondent, Lewis, against the decision of Mangano and Mangano to sentence the appellants for offences under the Planning and Environment Act 1987 (Vic). The appellants were found guilty of illegal vegetation removal and earthworks. The Court of Appeal was tasked with determining whether the sentence was manifestly inadequate. The legal issues involved the principles of specific and general deterrence, the gravity of the offending, and the applicability of sentencing guidelines.

The court examined whether the sentence was manifestly inadequate by assessing whether it fell outside the range of sentences that a properly directed sentencing judge would impose. The court considered the principles of sentencing, including specific deterrence, which aims to discourage the offender from reoffending, and general deterrence, which aims to discourage others from committing similar offences. The court also considered the gravity of the offending, including the environmental impact and the appellants' culpability. The court found that the sentence imposed was not manifestly inadequate, as it fell within the range of sentences that could be considered appropriate.

The court held that the sentence was not manifestly inadequate and dismissed the appeal. The court found that the sentence took into account the relevant sentencing principles, including specific and general deterrence, and the gravity of the offending. The court also found that the sentence was not disproportionate to the offending and was not manifestly inadequate. The court held that the sentence was within the range of sentences that a properly directed sentencing judge would impose.

No further orders were made by the court. The appeal was dismissed, and the original sentence was upheld.

Orders