Ristevski v Hurstville City Council - [2003] NSWLEC 409

Land and Environment Court

of New South Wales

CITATION: Ristevski v Hurstville City Council [2003] NSWLEC 409

PARTIES:
APPELLANT
Zivko Ristevski
RESPONDENT
Hurstville City Council

FILE NUMBER(S): 60006 of 2003

CORAM: Talbot J

KEY ISSUES: Appeal :- against sentence imposed by local court - limit in lower court relates only to jurisdiction and not maximum penalty
Evidence :- leave given to rely on fresh evidence on appeal

LEGISLATION CITED: Crimes (Local Courts Appeal and Review) Act 2001 s 37(1), s 37(2), s 39, s 39(2), s 49, s 70
Crimes (Sentencing Procedure) Act 1999 s 10
Environmental Planning and Assessment Act 1979 s 76A

CASES CITED: R v Munday (1981) 2 NSWLR 177;
R v Thomson (2000) NSWLR 383

DATES OF HEARING: 26/11/2003

EX TEMPORE
JUDGMENT DATE :
11/26/2003

LEGAL REPRESENTATIVES:

APPELLANT
Ms L Byrne (Barrister)
SOLICITORS
R J Walsh Murphy & Roskov
RESPONDENT
Ms K J Eggleton-Ozen (Solicitor)
SOLICITORS
Deacons

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

60006 of 2003

Talbot J

26 November 2003

Zivko Ristevski

Appellant

Hurstville City Council

Respondent

Judgment

Introduction

1 HIS HONOUR: The proceedings before the Court arise by way of an appeal made pursuant to Pt 4 of the Crimes (Local Courts Appeal and Review) Act 2001 (“the CLCAR Act”) whereby the appellant is seeking the Court to review and to re-exercise the discretion in relation to the sentence imposed upon the appellant by a Magistrate in the local court at Kogarah on 5 June 2003 following a plea of guilty.

2 Some time was taken this morning in dealing with an application by the appellant to give fresh evidence pursuant to leave granted under s 37(2) of the CLCAR Act. Section 37(2) of that Act provides that fresh evidence may be given but only by leave of the Land and Environment Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given. The proceedings before the Magistrate at Kogarah proceeded on the basis of the tender of documents, including statements of evidence from the council prosecutor’s witnesses. There was neither oral evidence, at least from the defendant and so far as I can gather, nor any documents produced to the local court by the defendant.

3 Be that as it may, the difficulty for the defendant, now the appellant, was the fact that the evidence that he sought to give in this Court had not been dealt with in the lower court, except by way of submission made by the solicitor appearing for the defendant. The explanation given for that circumstance is that the plea was conducted in a busy local court in an entirely conventional manner, so called, namely that the defendant did not give evidence. Matters were put from the bar table.

4 There is no submission put to me that the omission to lead evidence before the Magistrate was done on the basis that the prosecutor…

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: [2003] NSWLEC 409
Decision Date: 11/26/2003

CaseChat Overview and Summary

The proceedings before the Land and Environment Court of New South Wales involve an appeal by Zivko Ristevski against a sentence imposed by a Magistrate in the local court at Kogarah. The appeal was made pursuant to the Crimes (Local Courts Appeal and Review) Act 2001, following a plea of guilty by Ristevski for carrying out development without consent, in breach of the Environmental Planning and Assessment Act 1979. The appeal concerned the sentence's excessiveness and the procedural fairness of the lower court proceedings.

The primary legal issue before the Court was whether the sentence imposed by the local court was manifestly excessive, considering the seriousness of the offence and the mitigating factors presented by the appellant. Another significant issue was the admissibility of fresh evidence in the appeal process, as the appellant had not led evidence in the lower court but sought to do so in the appeal.

In allowing the fresh evidence to be presented, Talbot J noted the importance of ensuring the Court was properly informed. However, the judge cautioned against the practice of merely making submissions in the local court and seeking to overcome evidentiary shortcomings in the appeal process. The judge acknowledged that while the local court might not have considered the fresh evidence, it was crucial for the appeal court to be fully informed. The Court granted leave to present fresh evidence on the condition that it was in the interests of justice. The judge further emphasized the importance of establishing a proper foundation for admitting fresh evidence, referencing R v Munday (1981) 2 NSWLR 177, which underscores the limited circumstances under which an appeal court may consider subsequent events.

Regarding the sentence, the Court exercised its discretion to vary the penalty imposed by the local court. While acknowledging the seriousness of the offence, the Court considered the appellant's good character, early plea of guilty, and the lack of intention to cause harm. The Court determined that a penalty of $25,000 was appropriate, balancing the need for deterrence with the mitigating factors presented.

In the final orders, the Court upheld the appeal, reduced the penalty to $25,000, and decided not to order costs in relation to the appeal, considering the appellant's success and the manner in which the proceedings were conducted.

Orders