Council of the Municipality of Kiama v Micallef [2009] NSWLEC 202

Council of the Municipality of Kiama v Micallef [2009] NSWLEC 202

Although the offence was at the lower end of the scale and there were substantial mitigating circumstances, the defendant was familiar with the planning regime, failed to satisfy the deferred commencement condition or obtain a construction certificate before commencing works, and the breach was more than technical. General deterrence and the need for punishment meant that s10 relief was inappropriate. A fine was required, but leniency was warranted because of the early plea, cooperation, remorse, clean records, lack of financial motivation, financial circumstances, and the absence of criticism of the quality of the work.

Jurisdiction
Australia
Judgment Date
25 November 2009
Procedural Posture
Environmental Offence Prosecution for Carrying Out Development Without an Operative Development Consent / Sentencing After Early Plea of Guilty
Outcome
Defendant convicted and fined; s10 application refused; defendant ordered to pay agreed prosecutor's costs.
Legal Topics
['building Development Work Without Operative Consent' 'deferred Commencement Condition' 'construction Certificate' 'sentencing Principles' 'section 10 Discretion' 'mitigating Factors' "prosecutor's Costs"]
['environmental Law' 'planning and Development Law' 'criminal Sentencing'] ['building Development Work Without Operative Consent' 'deferred Commencement Condition' 'construction Certificate' 'sentencing Principles' 'section 10 Discretion' 'mitigating Factors' "prosecutor's Costs"]

Case Brief

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Procedural Posture

Environmental Offence Prosecution for Carrying Out Development Without an Operative Development Consent / Sentencing After Early Plea of Guilty

Legal Issues

  1. 1 ['Whether the defendant should be penalised for carrying out development without satisfying a deferred commencement condition or obtaining a construction certificate' 'Whether the Court should exercise the discretion under s10 of the Crimes (Sentencing Procedure) Act 1999 to dismiss the charge without conviction or penalty' "The appropriate penalty having regard to deterrence, punishment, harm, the offender's state of mind, subjective circumstances, and practical measures available to avoid harm"]

Ratio Decidendi

Although the offence was at the lower end of the scale and there were substantial mitigating circumstances, the defendant was familiar with the planning regime, failed to satisfy the deferred commencement condition or obtain a construction certificate before commencing works, and the breach was more than technical. General deterrence and the need for punishment meant that s10 relief was inappropriate. A fine was required, but leniency was warranted because of the early plea, cooperation, remorse, clean records, lack of financial motivation, financial circumstances, and the absence of criticism of the quality of the work.

Court Disposition

Defendant convicted and fined; s10 application refused; defendant ordered to pay agreed prosecutor's costs.

Orders

  • ['The defendant is convicted of the offence charged in the summons.' 'The defendant is fined the sum of $8,000.' "The defendant is ordered to pay the prosecutor's costs agreed at $10,000." "All the exhibits are returned, except Exhibit K2 which will remain in the court's file."]