Marano v Tweed Shire Council [2021] NSWLEC 95

Land and Environment Court New South Wales

Medium Neutral Citation: Marano v Tweed Shire Council [2021] NSWLEC 95 Hearing dates: 31 August 2021 Date of orders: 1 September 2021 Decision date: 01 September 2021 Jurisdiction: Class 6 Before: Pain J Decision: (1) The Appeal is allowed. (2) The sentence imposed in the Local Court on 28 April 2021 in proceedings 2020/343914 is set aside. (3) The Appellant is sentenced for the offence of carrying out development without consent the subject of proceedings 2021/343914 in the Local Court by making an order under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 dismissing the charge. (4) No order is made in respect of the costs order made in the Local Court. (5) Each party to pay their own costs of the appeal. Catchwords: CRIMINAL – appeal against the severity of sentence in Local Court for offence of carrying out development without consent – exercise of sentencing discretion to make s 10(1)(a) order in light of appellant's circumstances – appeal upheld Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) ss 33, 39 Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 10, Pt 3 Div 1 ( s 21A) Cases Cited: Environment Protection Authority v Barnes [2006] NSWCCA 246 Environment Protection Authority v Queanbeyan City Council (No 3) [2012] NSWLEC 220 Harris v Harrison (2014) 86 NSWLR 422 5 Heatscape Pty Ltd v Mahoney [2015] NSWLEC 126 Moseley v Queanbeyan-Palerang Regional Council (No 2) [2017] NSWLEC 52 R v Hemsley [2004] NSWCCA 228 R v Paris [2001] NSWCCA 83 Terry v Department of Environment, Climate Change and Water [2011] NSWLEC 141 Veen v The Queen (1979) 143 CLR 458 Veen v The Queen (No 2) (1988) 164 CLR 465 Category: Principal judgment Parties: Michelle Marano (Appellant) Tweed Shire Council (Respondent) Representation: COUNSEL: M Seymour and L Sims (Appellant) N Lichti, solicitor (Respondent) SOLICITORS: N/A (Appellant) Minter Ellison (Respondent) File Number(s): 21/173852 Decision under appeal Court or tribunal: Local Court Jurisdiction: Criminal Date of Decision: 28 April 2021 Before: Magistrate G Dunlevy File Number(s): 20/343914