Byres v Leichhardt Municipal Council [2006] NSWLEC 82

Land and Environment Court of New South Wales

CITATION : Byres v Leichhardt Municipal Council [2006] NSWLEC 82

APPELLANT David Mark Martin Byres PARTIES : RESPONDENT Leichhardt Municipal Council

FILE NUMBER(S) : 60012 of 2005

CORAM: Preston CJ

Appeal :- - appeal against severity of sentence of Local Court - appeal by way of rehearing - sentence given by Local Court consistent with pattern of sentences for offence - sentence within range appropriate to gravity of offence and to the subjective circumstances of offender - appeal dismissed KEY ISSUES: Environmental offences: - carrying out development without development consent - excavating and building basement under house - guilty plea - appropriate sentence - offender's actions objectively serious - extensive excavations threatening structural integrity and stability of house - work by offender done without building or engineering expertise - work done without regard to health and safety of occupants or amenity of neighbours - offence foreseen negligent and the consequence of conduct that was intended by offender - work done to benefit offender by creating basement - need for general deterrence - guilty plea and lack of prior convictions main mitigating circumstances - absence of contrition and remorse - need for specific deterrence - financial means of offender

Crimes (Local Court Appeal and Review) Act 2001 (NSW) s 31(1), s 32(1), s 31(2)(a), s 37(1), s 37 (2) Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A, s 17, s 21(a)(3)(e), s 21A(3)(f), s 22, s 22(1)(b), s 23(1) LEGISLATION CITED: Criminal Appeal Act 1912 s 5AA Environmental Planning and Assessment Act 1979 (NSW) s 76(1)(a), s 76A(1), s 76A(1)(a), s 125(1), s 126(1), s 127(3) Fines Act 1996 (NSW) s 6 Local Government Act 1993 (NSW) s 124