Land and Environment Court
New South Wales
- Amendment notes
Medium Neutral Citation: Marano v Tweed Shire Council [2021] NSWLEC 95 Hearing dates: 31 August 2021 Date of orders: 1 September 2021 Decision date: 01 September 2021 Jurisdiction: Class 6 Before: Pain J Decision: (1) The Appeal is allowed.
(2) The sentence imposed in the Local Court on 28 April 2021 in proceedings 2020/343914 is set aside.
(3) The Appellant is sentenced for the offence of carrying out development without consent the subject of proceedings 2021/343914 in the Local Court by making an order under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 dismissing the charge.
(4) No order is made in respect of the costs order made in the Local Court.
(5) Each party to pay their own costs of the appeal.
Catchwords: CRIMINAL – appeal against the severity of sentence in Local Court for offence of carrying out development without consent – exercise of sentencing discretion to make s 10(1)(a) order in light of appellant’s circumstances – appeal upheld
Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) ss 33, 39
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 10, Pt 3 Div 1 ( s 21A)
Cases Cited: Environment Protection Authority v Barnes [2006] NSWCCA 246
Environment Protection Authority v Queanbeyan City Council (No 3) [2012] NSWLEC 220
Harris v Harrison (2014) 86 NSWLR 422 5
Heatscape Pty Ltd v Mahoney [2015] NSWLEC 126
Moseley v Queanbeyan-Palerang Regional Council (No 2) [2017] NSWLEC 52
Terry v Department of Environment, Climate Change and Water [2011] NSWLEC 141
Category: Principal judgment Parties: Michelle Marano (Appellant)
Tweed Shire Council (Respondent)Representation: COUNSEL:
M Seymour and L Sims (Appellant)
N Lichti, solicitor (Respondent)
SOLICITORS:
N/A (Appellant)
Minter Ellison (Respondent)
File Number(s): 21/173852 Decision under appeal
- Court or tribunal:
- Local Court
- Jurisdiction:
- Criminal
- Date of Decision:
- 28 April 2021
- Before:
- Magistrate G Dunlevy
- File Number(s):
- 20/343914
Judgment
-
The Appellant appeals against the severity of her sentence imposed by the Local Court on 28 April 2021, leave to do so having been granted under s 33(1)(a) of the Crimes (Appeal and Review) Act 2001 (NSW) (Appeal Act).
Crimes (Appeal and Review) Act 2001
-
Section 39(2) of the Appeal Act provides:
Part 4 Appeals from Local Court to Land and Environment Court
Division 1 Appeals by defendants
…
Subdivision 2 Determination of appeals
…
39 Determination of appeals
…
(2) The Land and Environment Court may determine an appeal against sentence—
(a) by setting aside the sentence, or
(b) by varying the sentence, or
(c) by dismissing the appeal.
Crimes (Sentencing Procedure) Act 1999
-
Relevant sections of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) state:
Part 1 Preliminary
…
3A Purposes of sentencing
The purposes for which a court may impose a sentence on an offender are as follows—
(a) to ensure…
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- Case
- [2021] NSWLEC 95
- Decision Date
CaseChat Overview and Summary
The central legal issues the court was required to determine were whether the Local Court's determination that the Appellant's development was not minor or insignificant was correct, and if the sentence imposed was appropriate. The Appellant argued that the development was minor and insignificant, and that the sentence was harsh and unjust. The Tweed Shire Council maintained that the Local Court's findings and sentence were correct.
The District Court found that the Local Court had erred in its assessment of the development's significance. The court concluded that the Appellant's development was minor and insignificant, and that the sentence imposed was excessive. The court set aside the sentence and dismissed the charge, finding that the Appellant's actions did not warrant a conviction. The court also determined that no order should be made in respect of the costs order made in the Local Court, and that each party should bear their own costs of the appeal.
Orders
Orders of the court
(1) The Appeal is allowed.
(2) The sentence imposed in the Local Court on 28 April 2021 in proceedings 2020/343914 is set aside.
(3) The Appellant is sentenced for the offence of carrying out development without consent the subject of proceedings 2021/343914 in the Local Court by making an order under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 dismissing the charge.
(4) No order is made in respect of the costs order made in the Local Court.
(5) Each party to pay their own costs of the appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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