Fairfield City Council v Cavasinni Constructions Pty Limited [2005] NSWLEC 187

Fairfield City Council v Cavasinni Constructions Pty Limited [2005] NSWLEC 187

Although the offence charged carried a maximum penalty of $1,100,000 under s 126(1), the conduct was in essence commensurate with failing to obtain a construction certificate under s 81A(2)(a), for which the maximum penalty was much lower. The lesser penalty under s 81A could be treated as one factor in assessing the relative seriousness of the offence. The defendant deliberately continued building work without the required construction certificate despite warnings, for economic self-interest, but had no prior record, expressed some remorse, and pleaded guilty. Balancing deterrence and mitigation, the appropriate penalty was $20,000.

Jurisdiction
Australia
Judgment Date
22 April 2005
Procedural Posture
Prosecution for Carrying Out Development Otherwise Than in Accordance With Development Consent / Sentencing After Plea of Guilty
Outcome
Offence proved; defendant convicted; monetary penalty imposed; defendant ordered to pay Council's costs.
Legal Topics
['development Consent' 'construction Certificate' 'breach of Condition of Development Consent' 'maximum Penalties' 'sentencing Discretion' 'guilty Plea' 'mitigating Factors']
['planning and Environment Law' 'criminal Sentencing'] ['development Consent' 'construction Certificate' 'breach of Condition of Development Consent' 'maximum Penalties' 'sentencing Discretion' 'guilty Plea' 'mitigating Factors']

Case Brief

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Procedural Posture

Prosecution for Carrying Out Development Otherwise Than in Accordance With Development Consent / Sentencing After Plea of Guilty

Legal Issues

  1. 1 ['What penalty should be imposed after the defendant pleaded guilty to carrying out building work contrary to condition 17 of the development consent.' 'Whether, in assessing the seriousness of the offence charged under s 76A(1)(b) of the Environmental Planning and Assessment Act 1979, the Court could take into account the lesser maximum penalty for contravention of s 81A(2).']

Ratio Decidendi

Although the offence charged carried a maximum penalty of $1,100,000 under s 126(1), the conduct was in essence commensurate with failing to obtain a construction certificate under s 81A(2)(a), for which the maximum penalty was much lower. The lesser penalty under s 81A could be treated as one factor in assessing the relative seriousness of the offence. The defendant deliberately continued building work without the required construction certificate despite warnings, for economic self-interest, but had no prior record, expressed some remorse, and pleaded guilty. Balancing deterrence and mitigation, the appropriate penalty was $20,000.

Court Disposition

Offence proved; defendant convicted; monetary penalty imposed; defendant ordered to pay Council's costs.

Orders

  • ['The offence is proved.' 'The defendant is convicted of the charge in the summons.' 'The defendant is ordered to pay a monetary penalty in the sum of $20,000.' "The defendant is ordered to pay the Council's costs." 'The exhibits may be returned.']