Choices Manufacturing Pty Ltd v Fairfield City Council [2009] NSWLEC 72

Choices Manufacturing Pty Ltd v Fairfield City Council [2009] NSWLEC 72

The appellant's continuing retail operation was a flagrant and deliberate commercial flouting of planning law by a company directed by a solicitor who was on notice that approval was required and likely to be refused. Although the fine was lenient and the Court would not reduce the guilty plea discount below 25%, the penalty was within the appropriate range when objective seriousness, absence of remorse, need for specific and general deterrence, and the limited significance of financial hardship were considered. There was no reason to disturb the magistrate's sentencing discretion, and no basis to increase the fine on appeal.

Jurisdiction
Australia
Judgment Date
11 May 2009
Procedural Posture
Class 6 Appeal Against Severity of Sentence for Trading as a Retail Shop Without Consent / Appeal by Rehearing on Transcript and Fresh Evidence; Appeal Dismissed
Outcome
Appeal dismissed; Local Court penalty and costs stood; appellant ordered to pay prosecutor's costs of the appeal as agreed or assessed.
Legal Topics
['use of Land Without Development Consent' 'prohibited Retail Use in Industrial Zone' 'severity Appeal' 'fine and Costs' 'specific and General Deterrence' 'financial Hardship']
['environmental Planning Law' 'criminal Sentencing' 'local Government Prosecution'] ['use of Land Without Development Consent' 'prohibited Retail Use in Industrial Zone' 'severity Appeal' 'fine and Costs' 'specific and General Deterrence' 'financial Hardship']

Case Brief

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Procedural Posture

Class 6 Appeal Against Severity of Sentence for Trading as a Retail Shop Without Consent / Appeal by Rehearing on Transcript and Fresh Evidence; Appeal Dismissed

Legal Issues

  1. 1 ['Whether the fine imposed by the Fairfield Local Court for prohibited retail use without consent was too severe.' "Whether the appellant's guilty plea, lack of prior record, cooperation, alleged selective prosecution, and financial circumstances justified reducing the penalty." "Whether the prosecutor's submission that the fine should be increased should be accepted."]

Ratio Decidendi

The appellant's continuing retail operation was a flagrant and deliberate commercial flouting of planning law by a company directed by a solicitor who was on notice that approval was required and likely to be refused. Although the fine was lenient and the Court would not reduce the guilty plea discount below 25%, the penalty was within the appropriate range when objective seriousness, absence of remorse, need for specific and general deterrence, and the limited significance of financial hardship were considered. There was no reason to disturb the magistrate's sentencing discretion, and no basis to increase the fine on appeal.

Court Disposition

Appeal dismissed; Local Court penalty and costs stood; appellant ordered to pay prosecutor's costs of the appeal as agreed or assessed.

Orders

  • ["The defendant's appeal is dismissed." 'The orders of the magistrate as to penalty and costs will stand.' 'Exhibit P1 and Exhibit P2 will remain in the court file, but Exhibit D1 and Exhibit D2 may be returned.' "The Appellant/Defendant is ordered to pay the prosecutor's costs as agreed, or as assessed according to...