Holroyd City Council v El-Khouri [2008] NSWLEC 83

Holroyd City Council v El-Khouri [2008] NSWLEC 83

Although the offences were serious, the defendant's own criminality was very low because she had no real practical control over the building works controlled by her husband, did not intend to do wrong, tried to stop and rectify the breaches, pleaded guilty early, had an unblemished record and good character, and the development consent had been modified so the breaches could be regularised. Those extenuating circumstances made this a rare case in which justice required application of s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999, with each offence found proved but each charge dismissed without conviction.

Jurisdiction
Australia
Judgment Date
18 February 2008
Procedural Posture
Prosecution for Offences Against the Environmental Planning and Assessment Act 1979 and Environmental Planning and Assessment Regulation 2006 / Sentence After Guilty Pleas
Outcome
Each offence was found proved; without proceeding to conviction, each charge was dismissed under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999.
Legal Topics
['development in Breach of Development Consent' 'failure to Notify Principal Certifying Authority of Critical Stage Inspections' 'occupation Without Occupation Certificate' 'owner Builder Responsibilities' 'section 10 Dismissal Without Conviction' 'general Deterrence']
['environmental Planning and Assessment' 'criminal Sentencing'] ['development in Breach of Development Consent' 'failure to Notify Principal Certifying Authority of Critical Stage Inspections' 'occupation Without Occupation Certificate' 'owner Builder Responsibilities' 'section 10 Dismissal Without Conviction' 'general Deterrence']

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Procedural Posture

Prosecution for Offences Against the Environmental Planning and Assessment Act 1979 and Environmental Planning and Assessment Regulation 2006 / Sentence After Guilty Pleas

Legal Issues

  1. 1 ['What sentence should be imposed for six environmental planning offences committed by an owner-builder who pleaded guilty.' "Whether the defendant's limited involvement in and lack of practical control over the building works, together with other extenuating circumstances, justified orders under s 10 of the Crimes (Sentencing Procedure) Act 1999 without recording convictions." "Whether general deterrence and the seriousness of breaches of development consent required convictions or penalties despite the defendant's circumstances."]

Ratio Decidendi

Although the offences were serious, the defendant's own criminality was very low because she had no real practical control over the building works controlled by her husband, did not intend to do wrong, tried to stop and rectify the breaches, pleaded guilty early, had an unblemished record and good character, and the development consent had been modified so the breaches could be regularised. Those extenuating circumstances made this a rare case in which justice required application of s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999, with each offence found proved but each charge dismissed without conviction.

Court Disposition

Each offence was found proved; without proceeding to conviction, each charge was dismissed under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999.

Orders

  • ['In each of the proceedings the offence is found proved.' 'Pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act and without proceeding to conviction, each charge is dismissed.']