Kavanagh & Sons Custom Made Homes Pty Ltd v Larsen [2011] NSWLEC 187

Kavanagh & Sons Custom Made Homes Pty Ltd v Larsen [2011] NSWLEC 187

The appeal against conviction failed because the 11 December 2009 letter, the Appellant's ABN, the director's signature and the company's builder's licence number proved beyond reasonable doubt that the Appellant carried out the work, and the evidence of the Council officer and the Appellant's correspondence proved the unauthorised work. The Appellant did not establish that the SEPP applied, and the Prosecutor's evidence negatived that possible defence. The appeal against sentence succeeded because, although deterrence was important and the work was substantial, the $50,000 penalty was excessive in the circumstances, including the absence of evidence of particular environmental harm.

Jurisdiction
Australia
Judgment Date
24 October 2011
Procedural Posture
Class 6 Appeal From Local Court Conviction and Sentence for Carrying Out Development Without Development Consent / Appeal Under S 31(1) of the Crimes (appeal and Review) Act 2001 by Way of Rehearing
Outcome
Appeal against conviction dismissed; appeal against sentence upheld; Local Court penalty set aside and replaced with a $30,000 penalty; Appellant ordered to pay half of the Prosecutor's appeal costs as agreed or assessed.
Legal Topics
['development Without Development Consent' 'appeal Against Conviction' 'appeal Against Sentence' 'exempt and Complying Development' 'identification of Proper Defendant' 'deterrence in Sentencing']
['environmental Planning Law' 'criminal Appeals' 'sentencing'] ['development Without Development Consent' 'appeal Against Conviction' 'appeal Against Sentence' 'exempt and Complying Development' 'identification of Proper Defendant' 'deterrence in Sentencing']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 6 Appeal From Local Court Conviction and Sentence for Carrying Out Development Without Development Consent / Appeal Under S 31(1) of the Crimes (appeal and Review) Act 2001 by Way of Rehearing

Legal Issues

  1. 1 ['Whether the Appellant company was the correct defendant and was proved beyond reasonable doubt to have carried out the work the subject of the charge.' 'Whether the offence of carrying out development without development consent was established beyond reasonable doubt.' 'Whether the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 applied to the work as exempt or complying development.' 'Whether the Local Court penalty of $50,000 was excessive.']

Ratio Decidendi

The appeal against conviction failed because the 11 December 2009 letter, the Appellant's ABN, the director's signature and the company's builder's licence number proved beyond reasonable doubt that the Appellant carried out the work, and the evidence of the Council officer and the Appellant's correspondence proved the unauthorised work. The Appellant did not establish that the SEPP applied, and the Prosecutor's evidence negatived that possible defence. The appeal against sentence succeeded because, although deterrence was important and the work was substantial, the $50,000 penalty was excessive in the circumstances, including the absence of evidence of particular environmental harm.

Court Disposition

Appeal against conviction dismissed; appeal against sentence upheld; Local Court penalty set aside and replaced with a $30,000 penalty; Appellant ordered to pay half of the Prosecutor's appeal costs as agreed or assessed.

Orders

  • ['The appeal against conviction in Local Court matter number 2011/19319 is dismissed.' 'The appeal against sentence in Local Court matter number 2011/19319 is upheld and the penalty order of the Local Court on 21 June 2011 is set aside.' 'In lieu of the penalty imposed in Local Court matter number 2011/19319 $30,000...