Minister Assisting the Minister for Infrastructure and Planning v Diacano [2004] NSWLEC 532

Minister Assisting the Minister for Infrastructure and Planning v Diacano [2004] NSWLEC 532

The offences were proved and were not trivial, because proper accreditation is an important part of the private certification scheme under the EP&A Act. However, a conviction was not required because the defendant was 55 years old, otherwise of good character, had no prior convictions, suffered serious personal, health, emotional and financial consequences, had acted under a mistaken belief before being contacted by the Department, had maintained professional indemnity insurance, had not deliberately intended to undermine the EP&A Act scheme, and there was no evidence of inadequate work, actual loss or ineligibility for re-certification. Those factors, especially under s 10(3)(i) and...

Jurisdiction
Australia
Judgment Date
31 August 2004
Procedural Posture
Prosecution for Offences of Issuing Part 4 a Certificates When Not Authorised as an Accredited Certifier Under the Environmental Planning and Assessment Act 1979 / Sentence Following Guilty Pleas; Application for Dismissal Without Conviction Under S 10(1) of the Crimes (sentencing Procedure) Act 1999 and Costs
Outcome
Offences proved; charges dismissed without conviction under s 10(1)(a); defendant ordered to pay prosecutor's costs as agreed or assessed.
Legal Topics
['accredited Certifiers' 'construction Certificates' 'occupation Certificates' 'guilty Plea' 'dismissal Without Conviction' "prosecutor's Costs"]
['environmental Planning and Assessment' 'criminal Sentencing' 'costs'] ['accredited Certifiers' 'construction Certificates' 'occupation Certificates' 'guilty Plea' 'dismissal Without Conviction' "prosecutor's Costs"]

Case Brief

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Procedural Posture

Prosecution for Offences of Issuing Part 4 a Certificates When Not Authorised as an Accredited Certifier Under the Environmental Planning and Assessment Act 1979 / Sentence Following Guilty Pleas; Application for Dismissal Without Conviction Under S 10(1) of the Crimes (sentencing Procedure) Act 1999 and Costs

Legal Issues

  1. 1 ["Whether the defendant's six offences of issuing Part 4A certificates while not an accredited certifier should be dismissed without proceeding to conviction under s 10(1) of the Crimes (Sentencing Procedure) Act 1999." 'Whether the prosecutor should receive an order for costs under s 253(1)(c) of the Criminal Procedure Act (1986).']

Ratio Decidendi

The offences were proved and were not trivial, because proper accreditation is an important part of the private certification scheme under the EP&A Act. However, a conviction was not required because the defendant was 55 years old, otherwise of good character, had no prior convictions, suffered serious personal, health, emotional and financial consequences, had acted under a mistaken belief before being contacted by the Department, had maintained professional indemnity insurance, had not deliberately intended to undermine the EP&A Act scheme, and there was no evidence of inadequate work, actual loss or ineligibility for re-certification. Those factors, especially under s 10(3)(i) and...

Court Disposition

Offences proved; charges dismissed without conviction under s 10(1)(a); defendant ordered to pay prosecutor's costs as agreed or assessed.

Orders

  • ['The offences with which the Defendant is charged are proved.' 'Without proceeding to a conviction the Court directs that the relevant charge be dismissed pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999.' "The Defendant is ordered to pay the Prosecutor's costs as agreed or assessed." 'The...