Bay State Construction Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 86

Bay State Construction Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 86

Although all three offences were of low objective seriousness, the first offence was more serious because the sign had been displayed for a longer initial period and was illuminated, causing limited harm to a neighbour's night-time harbour view. The second and third offences involved only incremental further periods of the same continuous course of conduct and less harm because illumination was not proved after mid-March 2018. Individual fines of $30,000, $18,000 and $12,000 would exceed total criminality when aggregated, so the totality principle required adjustment to a just aggregate fine of $36,000 distributed as $26,000, $6,000 and $4,000. The Local Court's aggregate fine was...

Jurisdiction
Australia
Judgment Date
13 July 2020
Procedural Posture
Class 6 Appeal Against Severity of Sentence From the Local Court of New South Wales / Appeal by Way of Rehearing; Resentencing for Three Offences of Carrying Out Prohibited Development Contrary to S 4.3 of the Environmental Planning and Assessment Act 1979
Outcome
The appeals were allowed; the Local Court fines were set aside and replaced with varied fines totalling $36,000. No costs order was made for the appeal, and the Local Court costs order was not disturbed.
Legal Topics
['carrying Out Prohibited Development' 'advertising Sign on Crane' 'appeal Against Severity of Sentence' 'single Course of Conduct' 'totality Principle' 'objective Seriousness' 'fines']
['environmental Planning Law' 'criminal Sentencing' 'appeals'] ['carrying Out Prohibited Development' 'advertising Sign on Crane' 'appeal Against Severity of Sentence' 'single Course of Conduct' 'totality Principle' 'objective Seriousness' 'fines']

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Procedural Posture

Class 6 Appeal Against Severity of Sentence From the Local Court of New South Wales / Appeal by Way of Rehearing; Resentencing for Three Offences of Carrying Out Prohibited Development Contrary to S 4.3 of the Environmental Planning and Assessment Act 1979

Legal Issues

  1. 1 ['Whether the fines imposed by the Local Court for three offences of carrying out prohibited development were too severe individually or in aggregate.' 'Whether the three offences formed a single course of conduct requiring adjustment to avoid double punishment.' 'How the totality principle should be applied to fines imposed for multiple offences arising from continuous display of an unauthorised advertising sign.' 'Whether the objective seriousness of each offence justified different fines for the first, second and third offences.']

Ratio Decidendi

Although all three offences were of low objective seriousness, the first offence was more serious because the sign had been displayed for a longer initial period and was illuminated, causing limited harm to a neighbour's night-time harbour view. The second and third offences involved only incremental further periods of the same continuous course of conduct and less harm because illumination was not proved after mid-March 2018. Individual fines of $30,000, $18,000 and $12,000 would exceed total criminality when aggregated, so the totality principle required adjustment to a just aggregate fine of $36,000 distributed as $26,000, $6,000 and $4,000. The Local Court's aggregate fine was...

Court Disposition

The appeals were allowed; the Local Court fines were set aside and replaced with varied fines totalling $36,000. No costs order was made for the appeal, and the Local Court costs order was not disturbed.

Orders

  • ['The appeals are allowed.' 'The fines imposed on Bay State Construction Pty Ltd by the Local Court on 4 October 2019 in proceedings 2018/250264 of $6,000, 2018/245678 of $10,000 and 2018/249414 of $20,000 are set aside.' 'Instead of those fines, Bay State Construction Pty Ltd is fined $26,000 for the offence...