Marano v Tweed Shire Council - [2021] NSWLEC 95

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
R v Hemsley [2004] NSWCCA 228
R v Paris [2001] NSWCCA 83
Terry v Department of Environment, Climate Change and Water [2011] NSWLEC 141
Veen v The Queen (1979) 143 CLR 458
Veen v The Queen (No 2) (1988) 164 CLR 465

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…

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: [2021] NSWLEC 95
Decision Date: 01 September 2021

CaseChat Overview and Summary

The appeal in Marano v Tweed Shire Council involved the Appellant, who was convicted by the Local Court for carrying out development without consent. The Tweed Shire Council contested the appeal, which was heard by the District Court. The Appellant contested the conviction and sentence, arguing that the Local Court erred in finding that the development was not minor or insignificant and that the sentence was excessive.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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 R v Hemsley [2004] NSWCCA 228 R v Paris [2001] NSWCCA 83 Terry v Department of Environment, Climate Change and Water [2011] NSWLEC 141 Veen v The Queen (1979) 143 CLR 458 Veen v The Queen (No 2) (1988) 164 CLR 465
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