Pesic v Sutherland Shire Council [2019] NSWLEC 38

Pesic v Sutherland Shire Council [2019] NSWLEC 38

Although the one-day delay made it in the interest of justice to grant leave to appeal, the appeal against sentence failed because the offence, while of low objective seriousness and causing no proven environmental or neighbour harm, was committed deliberately and recklessly after warnings from Council and for financial gain. Mr Pesic's good character, lack of prior convictions, late guilty plea, and belated steps to obtain consent did not justify a s 10(1) order or a lower sentence. The Court considered that a substantially higher fine would have been appropriate, but did not increase the sentence because no warning had been given. As the Council succeeded on the appeal and no...

Jurisdiction
Australia
Judgment Date
02 April 2019
Procedural Posture
Class 6 Appeal Against Sentence From the Local Court for Carrying Out Development Without Development Consent Contrary to the Environmental Planning and Assessment Act 1979 / Application for Leave to Appeal Under S 33 of the Crimes (appeal and Review) Act 2001 and Appeal Against Sentence by Way of Rehearing
Outcome
Leave to appeal granted; appeal against sentence dismissed; appellant ordered to pay the respondent's costs of the appeal.
Legal Topics
['development Without Development Consent' 'severity Appeal' 'leave to Appeal Out of Time' 'section 10 Dismissal Application' 'costs of Appeal']
['planning and Environment' 'criminal Sentencing' 'appeals'] ['development Without Development Consent' 'severity Appeal' 'leave to Appeal Out of Time' 'section 10 Dismissal Application' 'costs of Appeal']

Case Brief

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Procedural Posture

Class 6 Appeal Against Sentence From the Local Court for Carrying Out Development Without Development Consent Contrary to the Environmental Planning and Assessment Act 1979 / Application for Leave to Appeal Under S 33 of the Crimes (appeal and Review) Act 2001 and Appeal Against Sentence by Way of Rehearing

Legal Issues

  1. 1 ['Whether leave to appeal should be granted where the appeal was filed one day late' 'Whether the sentence imposed by the Local Court should be varied by making an order under s 10(1) of the Crimes (Sentencing Procedure) Act 1999' 'Whether the fine imposed by the Local Court should be reduced' 'Whether Sutherland Shire Council should receive its costs of the appeal']

Ratio Decidendi

Although the one-day delay made it in the interest of justice to grant leave to appeal, the appeal against sentence failed because the offence, while of low objective seriousness and causing no proven environmental or neighbour harm, was committed deliberately and recklessly after warnings from Council and for financial gain. Mr Pesic's good character, lack of prior convictions, late guilty plea, and belated steps to obtain consent did not justify a s 10(1) order or a lower sentence. The Court considered that a substantially higher fine would have been appropriate, but did not increase the sentence because no warning had been given. As the Council succeeded on the appeal and no...

Court Disposition

Leave to appeal granted; appeal against sentence dismissed; appellant ordered to pay the respondent's costs of the appeal.

Orders

  • ['Grants leave under s 33 of the Crimes (Appeal and Review) Act 2001 to Mr Pesic to appeal under s 31 against the sentence imposed by the Local Court on 25 July 2018.' 'Dismisses the appeal against the sentence imposed by the Local Court on 25 July 2018.' "Orders Mr Pesic to pay Sutherland Shire Council's costs of...