Kari & Ghossayn Pty Limited v Sutherland Shire Council [2006] NSWLEC 532

Kari & Ghossayn Pty Limited v Sutherland Shire Council [2006] NSWLEC 532

The amendments to the Court Attendance Notices were within power and caused no injustice because time was not an essential ingredient and the amended particulars reflected the evidence at trial. The evidence proved beyond reasonable doubt that the appellant removed trees 187 and 188 and the indigenous bushland and sandstone rock outcrop: it was engaged to perform site clearing and bulk excavation, had exclusive practical opportunity and machinery during the relevant period, no other person had a realistic opportunity or means, and its site foreman admitted the removal. The $37,000 fine was not too severe given the objective seriousness of the environmental harm, the appellant's knowledge...

Jurisdiction
Australia
Judgment Date
25 August 2006
Procedural Posture
Class 6 Environmental Offences Appeal Against Convictions and Sentences / Appeal to the Land and Environment Court From Convictions and Sentences Imposed by Sutherland Local Court
Outcome
Appeals against convictions and sentences dismissed.
Legal Topics
['development Contrary to Development Consent' 'removal of Trees and Indigenous Bushland' 'amendment of Court Attendance Notices' 'fresh Evidence on Appeal' 'appeal Against Conviction' 'appeal Against Severity of Sentence' 'parity Between Co Offenders']
['environmental Law' 'planning Law' 'criminal Procedure' 'sentencing'] ['development Contrary to Development Consent' 'removal of Trees and Indigenous Bushland' 'amendment of Court Attendance Notices' 'fresh Evidence on Appeal' 'appeal Against Conviction' 'appeal Against Severity of Sentence' 'parity Between Co Offenders']

Case Brief

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Procedural Posture

Class 6 Environmental Offences Appeal Against Convictions and Sentences / Appeal to the Land and Environment Court From Convictions and Sentences Imposed by Sutherland Local Court

Legal Issues

  1. 1 ['Whether the Court had power on appeal to amend the Court Attendance Notices to correct the dates of the alleged offences and whether amendment would cause injustice.' 'Whether the prosecutor proved beyond reasonable doubt that the appellant carried out development contrary to the development consent by removing indigenous bushland, sandstone rock outcrops and trees 187 and 188.' 'Whether fresh evidence sought by the appellant and respondent should be admitted on the appeal under s 37(2) of the Crimes (Local Courts Appeal and Review) Act 2001 (NSW).' 'Whether the Local Court sentence of $37,000 for the offence involving indigenous bushland and rock outcrop was too severe, including having regard to objective seriousness, subjective circumstances and parity with Gittany.']

Ratio Decidendi

The amendments to the Court Attendance Notices were within power and caused no injustice because time was not an essential ingredient and the amended particulars reflected the evidence at trial. The evidence proved beyond reasonable doubt that the appellant removed trees 187 and 188 and the indigenous bushland and sandstone rock outcrop: it was engaged to perform site clearing and bulk excavation, had exclusive practical opportunity and machinery during the relevant period, no other person had a realistic opportunity or means, and its site foreman admitted the removal. The $37,000 fine was not too severe given the objective seriousness of the environmental harm, the appellant's knowledge...

Court Disposition

Appeals against convictions and sentences dismissed.

Orders

  • ['Each of the appeals is dismissed.' 'The penalties imposed by the Local Court of a fine of $37,000 in relation to the offence involving indigenous bushland in Local Court proceedings No 00138 042/05/172, $7,500 in relation to the offence involving Tree 187 in Local Court proceedings No 00138 034/05/172, and $7,500...