Blue Legend Australia Pty Ltd v Liverpool City Council [2017] NSWLEC 30

Blue Legend Australia Pty Ltd v Liverpool City Council [2017] NSWLEC 30

The offence was in the low to mid range of objective seriousness within this kind of matter. The Appellant had control over the causes of the offence, acted at least negligently and intentionally in configuring the shop contrary to the consent and approved plans, committed the offence in a commercial operation for financial gain, and created potential food safety and planning regulatory harm. The only mitigating factor established was the absence of prior convictions. Although limited capacity to pay a fine was accepted, it was only one sentencing consideration and did not demonstrate any basis to reduce the penalty imposed by the magistrate. The sentencing appeal was therefore dismissed...

Jurisdiction
Australia
Judgment Date
20 March 2017
Procedural Posture
Class 6 Sentencing Appeal From Liverpool Local Court Against Sentence for Carrying Out Development Not in Accordance With Development Consent / Appeal Against Severity of Sentence; Finding of Guilt and Conviction Not Challenged
Outcome
The sentencing appeal was dismissed.
Legal Topics
['development Contrary to Development Consent' 'objective Seriousness of Environmental Planning Offence' 'capacity to Pay a Fine' 'mitigating Factors' 'deterrence' 'costs on Sentencing Appeal']
['environmental Planning Law' 'criminal Sentencing' 'land and Environment Court Appeals'] ['development Contrary to Development Consent' 'objective Seriousness of Environmental Planning Offence' 'capacity to Pay a Fine' 'mitigating Factors' 'deterrence' 'costs on Sentencing Appeal']

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Procedural Posture

Class 6 Sentencing Appeal From Liverpool Local Court Against Sentence for Carrying Out Development Not in Accordance With Development Consent / Appeal Against Severity of Sentence; Finding of Guilt and Conviction Not Challenged

Legal Issues

  1. 1 ["Whether the Local Court sentence for an offence under s 76A(1)(b) of the Environmental Planning and Assessment Act 1979 should be reduced on the basis of the Appellant's financial position." 'How the objective seriousness of the offence and the available mitigating factors affected the appropriate sentence.' "Whether the Appellant should pay the Council's costs of the sentencing appeal."]

Ratio Decidendi

The offence was in the low to mid range of objective seriousness within this kind of matter. The Appellant had control over the causes of the offence, acted at least negligently and intentionally in configuring the shop contrary to the consent and approved plans, committed the offence in a commercial operation for financial gain, and created potential food safety and planning regulatory harm. The only mitigating factor established was the absence of prior convictions. Although limited capacity to pay a fine was accepted, it was only one sentencing consideration and did not demonstrate any basis to reduce the penalty imposed by the magistrate. The sentencing appeal was therefore dismissed...

Court Disposition

The sentencing appeal was dismissed.

Orders

  • ['The sentencing appeal is dismissed.' "The Appellant is to pay the Council's costs within 60 days." 'The exhibits be returned.']