Cumberland Council v Khoury [2017] NSWLEC 14

Land and Environment Court New South Wales

Medium Neutral Citation: Cumberland Council v Khoury [2017] NSWLEC 14 Hearing dates: 20 February 2017 Date of orders: 01 March 2017 Decision date: 01 March 2017 Jurisdiction: Class 4 Before: Moore J Decision: The orders of the Court are:

(1) Robert Khoury is sentenced to a term of imprisonment of ten (10) months, commencing on 1 March 2017; and

(2) The sentence is wholly suspended on the following conditions:

(a) Mr Khoury is to enter into a recognisance to be of good behaviour by not recommencing the use of the premises at 36 Frances Street, South Wentworthville for the purposes of a boarding house for a period of ten (10) months, commencing on 1 March 2017; and (b) Mr Khoury is to notify the Registrar of the Court within two (2) working days of moving to any new residential address, should he move his residential address from 36 Frances Street, South Wentworthville during the currency of the recognisance in (2)(a);

(3) Mr Khoury is to pay the Prosecutor's costs, on an ordinary basis, as agreed or assessed, with the costs of the hearing on 20 February 2017 being limited to one-and-a-half (1.5) hours; and

(4) The exhibits are returned. Catchwords: CONTEMPT - use of premises as a boarding house without development consent - court orders to cease use - failure to comply - use ceases only after court orders to utility services suppliers suspending electricity and water services to premises - owner charged with contempt – owner convicted of contempt CONTEMPT - carry out alterations to premises without development consent - alterations designed to facilitate use as boarding house - fire safety issues - court orders removal of unauthorised works and return of premises to duplex dwelling as had been given development consent - failure to comply - owner charged with contempt - continuing failure to comply - owner convicted of contempt SENTENCING - fitness for custodial sentence if warranted - pre-sentence report provided discloses no viable alternative to full-time custodial sentence SENTENCING – opportunity provided to purge contempt – contemnor commences processes to seek building certificate for premises and consent for use as boarding house – relevance to sentencing options SENTENCING – option of a fine considered – several reasons why a fine not appropriate – whether full-time custodial sentence should be suspended – if suspended, what conditions should attach – ten month full-time sentence imposed but wholly suspended on the basis of recognisance to be of good behaviour – good behaviour to be demonstrated by not recommencing use of premises as a boarding house Legislation Cited: Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A Fines Act 1996 , s 6 Environmental Planning Assessment Act 1979, s 125 Land and Environment Court Act 1979, s 74 Land and Environment Court Rules 2007, Pt 6 r 6.3 Supreme Court Act 1970 Supreme Court Rules 1970, Pt 55 Cases Cited: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Canterbury City Council v Mihalopoulos (No 3) [2012] NSWLEC 72 Cumberland Council v Khoury [2016] NSWLEC 55 EPA v Barnes [2006] NSWCCA 246 Holroyd City Council v Khoury (No 2) [2011] NSWLEC 158 Holroyd City Council v Khoury (No 3) [2011] NSWLEC 210 Holroyd City Council v Khoury [2015] NSWLEC 17 Ireland v Cessnock City Council 110 LGERA 311; [1999] NSWLEC 250 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 Sydney City Council v Sydney Tool Supplies Pty Ltd & Daniel Bek (No. 2) [2011] NSWLEC 196 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Waverley Council v Tovir Investments Pty Ltd & Rappaport (No 4) [2013] NSWLEC 88 Category: Sentence Parties: Cumberland Council (Applicant) Robert Khoury (Respondent) Representation: Counsel: Mr M Fozzard, barrister (Applicant) Self-represented (Respondent)