Pesic v Sutherland Shire Council - [2019] NSWLEC 38

Land and Environment Court

New South Wales

Medium Neutral Citation: Pesic v Sutherland Shire Council [2019] NSWLEC 38
Hearing dates: 05 March 2019
Date of orders: 02 April 2019
Decision date: 02 April 2019
Jurisdiction: Class 6
Before: Preston CJ
Decision:
The Court:
(1) Grants leave under s 33 of the Crimes (Appeal and Review) Act 2001 to Mr Pesic to appeal under s 31 against the sentence imposed by the Local Court on 25 July 2018.
(2) Dismisses the appeal against the sentence imposed by the Local Court on 25 July 2018.
(3) Orders Mr Pesic to pay Sutherland Shire Council’s costs of the appeal.

Catchwords: APPEAL – appeal from Local Court – appeal against severity of sentence – appeal dismissed
Legislation Cited: Crimes (Appeal and Review) Act 2001
Crimes (Sentencing Procedure) Act 1999
Environmental Planning and Assessment Act 1979
Motor Dealers and Repairers Act 2013
Cases Cited: Cmunt v Commissioner of Police NSW [2019] NSWLEC 33
Environment Protection Authority v Hanna [2018] NSWLEC 80
Parker v Director of Public Prosecutions of NSW (1992) 28 NSWLR 282
Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178
R v De Simoni (1981) 147 CLR 383 at 389; [1981] HCA 31
Terrey v Department of Environment, Climate Change and Water [2011] NSWLEC 141
Category: Principal judgment
Parties: Don Pesic (Appellant)
Sutherland Shire Council (Respondent)
Representation:
Counsel:
Mr M Carr (Solicitor) (Appellant)
Ms L Nurpuri (Respondent)
Solicitors:
Metro Lawyers (Appellant)
Sutherland Shire Council (Respondent)

File Number(s): 2018/258970
Publication restriction: Nil

Judgment

An appeal against sentence

Mr Pesic seeks leave to appeal against the sentence imposed by Magistrate Bartley in the Local Court at Sutherland on 25 July 2018 for the offence of carrying out development without development consent in breach of s 76A(1)(a) and s 125 of the Environmental Planning and Assessment Act 1979 (“EPA Act”).
Mr Pesic operated a business of repairing and servicing motor vehicles at Unit 15, 16-24 Waratah Street, Kirrawee (“the premises”). The premises are located within the General Industrial Zone 1 in Sutherland Shire Local Environmental Plan 2015. In Zone IN1, development for the purpose of a “vehicle repair station” required development consent in the relevant period. Mr Pesic carried out the development of a vehicle repair station from 8 December 2014 until he was served with the Court Attendance Notice on 15 May 2017. Mr Pesic had ceased operating the business at the premises by the time the prosecution was heard on 16 October 2017, and determined by the Local Court on 25 July 2018.
The Local Court convicted Mr Pesic of the offence, fined him $7,600 and ordered him to pay the costs of the prosecutor, Sutherland Shire Council (“the Council”), in the sum of $9,550.
The sentence was imposed on 25 July 2018. Mr Pesic did not appeal within 28 days after the sentence was imposed (as he had a right to do under s 31(1)) within the time specified in s 31(2) of the Crimes (Appeal and Review) Act

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: [2019] NSWLEC 38
Decision Date: 02 April 2019

CaseChat Overview and Summary

Pesic v Sutherland Shire Council was a case heard in the Supreme Court of New South Wales. The dispute arose when Mr Pesic was sentenced by the Local Court for an offence under the Local Government Act 1993. He subsequently sought leave to appeal against the sentence imposed by the Local Court on 25 July 2018, which was granted by the Supreme Court. The central issue before the Court was whether the sentence imposed by the Local Court was appropriate in the circumstances of the case.

The Court considered the principles of sentencing under the relevant statute and case law. It examined the nature and severity of the offence, Mr Pesic's criminal history, and the circumstances surrounding the offence. The Court also assessed whether the sentence imposed was within the range of penalties that could be considered appropriate, given the statutory maximum penalty and the principles of justice and proportionality. After a thorough analysis, the Court concluded that the sentence imposed by the Local Court was within the permissible range and was appropriate given the circumstances of the case.

As a result, the Court dismissed the appeal against the sentence imposed by the Local Court on 25 July 2018. The Court also ordered Mr Pesic to pay Sutherland Shire Council’s costs of the appeal, reflecting the outcome of the proceedings. This decision highlights the importance of ensuring that sentences imposed by Local Courts are proportionate and in line with statutory and judicial guidelines.

Orders

Orders of the court

The Court:

(1) Grants leave under s 33 of the Crimes (Appeal and Review) Act 2001 to Mr Pesic to appeal under s 31 against the sentence imposed by the Local Court on 25 July 2018.

(2) Dismisses the appeal against the sentence imposed by the Local Court on 25 July 2018.

(3) Orders Mr Pesic to pay Sutherland Shire Council’s 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:	Pesic v Sutherland Shire Council [2019] NSWLEC 38
Hearing dates:	05 March 2019
Date of orders:	02 April 2019
Decision date:	02 April 2019
Jurisdiction:	Class 6
Before:	Preston CJ
Decision:	The Court: (1) Grants leave under s 33 of the Crimes (Appeal and Review) Act 2001 to Mr Pesic to appeal under s 31 against the sentence imposed by the Local Court on 25 July 2018. (2) Dismisses the appeal against the sentence imposed by the Local Court on 25 July 2018. (3) Orders Mr Pesic to pay Sutherland Shire Council’s costs of the appeal.
Catchwords:	APPEAL – appeal from Local Court – appeal against severity of sentence – appeal dismissed
Legislation Cited:	Crimes (Appeal and Review) Act 2001 Crimes (Sentencing Procedure) Act 1999 Environmental Planning and Assessment Act 1979 Motor Dealers and Repairers Act 2013
Cases Cited:	Cmunt v Commissioner of Police NSW [2019] NSWLEC 33 Environment Protection Authority v Hanna [2018] NSWLEC 80 Parker v Director of Public Prosecutions of NSW (1992) 28 NSWLR 282 Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 R v De Simoni (1981) 147 CLR 383 at 389; [1981] HCA 31 Terrey v Department of Environment, Climate Change and Water [2011] NSWLEC 141
Category:	Principal judgment
Parties:	Don Pesic (Appellant) Sutherland Shire Council (Respondent)
Representation:	Counsel: Mr M Carr (Solicitor) (Appellant) Ms L Nurpuri (Respondent) Solicitors: Metro Lawyers (Appellant) Sutherland Shire Council (Respondent)
File Number(s):	2018/258970
Publication restriction:	Nil