Section 16 prosecutions and the criminal diversion program

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    Peter Sheridan

    Hi All,

    I would have liked to post this in the previous thread that I started on the old forum – wondering if it’s possible for the mods/admin to append the text in the old thread to this one?

    I spent this morning in the Wangaratta Magistrate’s Court in relation to a section 16 prosecution. It was supposed to be a contest hearing, however the accused agreed to plead guilty in the lead up to the appearance. So it really came down to costs and penalties. We agreed to around 70% of costs ($8000) prior to the hearing, which I thought would be a pretty good result for Council when any penalty was added to it. For background info, the accused came to the attention of Council about a year ago for a remarkably similar offence (demolition of a building without a building permit) which we prosecuted, and we agreed to a criminal diversion order, but this was not able to be brought to the attention of the court as it had effectively been discharged.

    To cut to the chase, the Magistrate considered that the $8000 to be paid for the costs was penalty enough, so did not impose a fine based on the accused’s disclosable prior history / apparent good behaviour.

    The outcome is that Council (the ratepayers) are effectively 4.5K out of pocket for running this prosecution, not including investigation / Council officer costs (double this figure may be in the ballpark).

    What I learnt from this (and the point of posting is to share this learning):

    Consider very carefully any proposals for diversion as an outcome of a prosecution, remembering it is at your discretion whether or not to accept it. I certainly have a different view of the criminal diversion program now, which will most definitely influence my decision making in the future should a similar situation arise.

    Granted that this case could/should be viewed in isolation and on its individual merits (and I have not provided the full background so it would be difficult for the reader to make their own assessment), however I do believe there may be a disconnect between how the state government and this magistrate views the seriousness of the offence. To wit: current maximum penalty for both charges (person and body corporate) = $466,380.00. Proposed penalty in the current Building Bill = $481,926 and up to 5 years jail for the individual. “Penalty” imposed in this case = 1.7% of current maximum. It seems that there was only a very small amount of specific or general deterrence attached to this “penalty”.

    Would I do anything different? No, I / we / Council did our jobs to the highest possible standard, and at the end of the day, that’s the system we work within. I’d hope we’d get a better result next time.

    Hoping I don’t sound bitter here, I’m more disappointed in the outcome for the community.

    Keep on trucking and happy and safe Easter!


    Barry Nicholl


    briefly what was council’s reasoning for a diversion particularly in light of the well published demolition in the big smoke.


    Peter Sheridan

    Good question Barry.

    The first one was prior to the Corkman, so that wasn’t a factor.

    Looking back on it, I wonder myself, but it went along the line of:

    Scale – it was a partial demolition, not whole of building.
    Low risk to public / adjoining property.

    There were certainly other factors at play, but what we wanted mostly out of it was general deterrence – to be able to get media attention to it as part of the journey along the road of community education / culture change in a “smaller” town. Turns out the local paper wasn’t interested in running it, which may have been partly to do with the identities of parties involved. I’m hoping we will get better coverage out of this latest one.

    I think what probably added to the disappointment in the most recent case, along with the extremely low penalty for the contractor, was not being able to hold the owner to account (who in my mind had a much higher level of culpability over the owner in the first case) due to recent section 16 changes. For the background on this you would need to read the topic I started in the old forum.

    Barry Nicholl

    Thanks Peter The papers don’t always pick up this stuff but as you are aware in small communities word of mouth works well and most people would know

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