Smyth v Tsekos [1988] NSWLEC 119

Smyth v Tsekos [1988] NSWLEC 119

The case was not appropriate for an order under s.556A because, although the Defendant was initially ignorant of the s.130 Order and that ignorance provided powerful mitigation, he failed after learning of the order to exercise reasonable care, diligence and responsibility to inform the contracted demolisher not to proceed. That failure deprived him of moral and criminal blamelessness, so the Court proceeded to conviction and imposed a modest penalty reflecting the mitigating factors and the agreed costs burden.

Jurisdiction
Australia
Judgment Date
09 May 1988
Procedural Posture
Prosecution for an Offence Against S.135 of the Heritage Act 1977 / Penalty After Plea of Guilty
Outcome
The Defendant was convicted and a penalty of $2,000 was imposed; he was also ordered to pay the Prosecutor's agreed costs of $15,000.
Legal Topics
['demolition of Heritage Building' 'heritage Order Under S.130(1)' 'absolute Liability' 'ignorance of the Law' 'sentencing' 'section 556 a Discretion']
['environmental Law' 'heritage Protection' 'criminal Law'] ['demolition of Heritage Building' 'heritage Order Under S.130(1)' 'absolute Liability' 'ignorance of the Law' 'sentencing' 'section 556 a Discretion']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Prosecution for an Offence Against S.135 of the Heritage Act 1977 / Penalty After Plea of Guilty

Legal Issues

  1. 1 ['Whether the Court should exercise the discretion conferred by s.556A of the Crimes Act 1900 and not proceed to conviction.' 'What penalty should be imposed for demolition of a building while an order under s.130(1) of the Heritage Act 1977 was in force.' "Whether the Defendant's ignorance of the s.130 Order and later attempts to contact the demolisher mitigated culpability."]

Ratio Decidendi

The case was not appropriate for an order under s.556A because, although the Defendant was initially ignorant of the s.130 Order and that ignorance provided powerful mitigation, he failed after learning of the order to exercise reasonable care, diligence and responsibility to inform the contracted demolisher not to proceed. That failure deprived him of moral and criminal blamelessness, so the Court proceeded to conviction and imposed a modest penalty reflecting the mitigating factors and the agreed costs burden.

Court Disposition

The Defendant was convicted and a penalty of $2,000 was imposed; he was also ordered to pay the Prosecutor's agreed costs of $15,000.

Orders

  • ['The Defendant be convicted of the offence charged.' 'A penalty of $2,000 be imposed in respect of the aforesaid conviction.' "The aforesaid penalty be paid to the Registrar of the Court within 28 days of today's date." "The Defendant pay the Prosecutor's costs in the agreed sum of $15,000 such sum to be paid to...