Kirzner, Alex v Manly Council; Kirzner, Natalia v Manly Council [2009] NSWLEC 13

Kirzner, Alex v Manly Council; Kirzner, Natalia v Manly Council [2009] NSWLEC 13

Mrs Kirzner's role was entirely passive and uninvolved, so s 10A should apply and no penalty should be imposed; Mr Kirzner was actively involved, yet mitigating factors and comparative sentencing indicate that the penalty should be reduced to $16,000; there were no proven aggravating circumstances; each party should pay its own costs as both contributed to the appeal's necessity and supporting evidence largely could have been provided below.

Parties
Appellant: Alex Kirzner; Appellant: Natalia Kirzner; Respondent: Manly Council
Jurisdiction
Australia
Judgment Date
16 February 2009
Procedural Posture
Appeal / Appeal Against Severity of Sentence
Outcome
Appeal allowed in part (severity of sentence varied).
Legal Topics
Unauthorised Development, Sentencing, Development Consent Requirements
Planning and Environmental Law Criminal Law Unauthorised Development Sentencing Development Consent Requirements

Case Brief

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Parties

Alex Kirzner

Appellant

Natalia Kirzner

Appellant

Manly Council

Respondent

Procedural Posture

Appeal / Appeal Against Severity of Sentence

Legal Issues

  1. 1 Whether the penalties imposed for carrying out unauthorised development without consent were too severe
  2. 2 Whether Mrs Kirzner's culpability was reduced due to lack of involvement
  3. 3 Whether s 10A of the Crimes (Sentencing Procedure) Act 1999 should be applied to dispose of proceedings without imposing a penalty

Ratio Decidendi

Mrs Kirzner's role was entirely passive and uninvolved, so s 10A should apply and no penalty should be imposed; Mr Kirzner was actively involved, yet mitigating factors and comparative sentencing indicate that the penalty should be reduced to $16,000; there were no proven aggravating circumstances; each party should pay its own costs as both contributed to the appeal's necessity and supporting evidence largely could have been provided below.

Court Disposition

Appeal allowed in part (severity of sentence varied).

Orders

  • In matter no 60013 of 2008, the penalty order of the local court is varied to $16,000.
  • In matter no 60014 of 2008, the penalty order of the local court is set aside so that no penalty is imposed pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999.