Advanced Arbor Service Pty Ltd v Strathfield Municipal Council

[2006] NSWLEC 485

Land and Environment Court

of New South Wales

CITATION:

Advanced Arbor Service Pty Ltd v Strathfield Municipal Council [2006] NSWLEC 485

PARTIES:

APPLICANT
Advanced Arbor Service Pty Limited

RESPONDENT
Strathfield Municipal Council

FILE NUMBER(S):

60010 of 2006

CORAM:

Preston CJ

KEY ISSUES:

Appeal :- appeal against severity of sentence of Local Court - court cannot set aside conviction on appeal against sentence - appeal against conviction required

Appeal:- appeal against conviction- conviction followed plea of guilty - no appeal as of right - leave to appeal required - application for leave to appeal time-barred

Environmental offences:- carrying out development without consent - removal of tree contrary to tree preservation order - offender professional arborist - environmental harm caused by loss of amenity and privacy - offence committed negligently - need for general deterrence for arborists - subjective mitigating circumstances - no prior convictions - prior good character - early plea of guilty - contrition and remorse - assistance to authorities - legal and economic consequences of conviction

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 (NSW) s 76A(1)(a), s 125(1)
Crimes (Local Courts Appeal and Review) Act 2001 (NSW) s 3, s 10, s 11, s 12, s 31, s 32, s 33, s 34, s37, s 39
Crimes (Sentencing Procedure) Act 1999 (NSW) s 10, s 10(1)(a), s 21(3), s 21A(3), s 23

CASES CITED:

Active Tree Services Pty Limited v Ku-ring-gai Municipal Council [2005] NSWLEC 431 (9 August 2005);
Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357;
Budget Nursery Pty Ltd v Commissioner of Taxation (1989) 42 A Crim R 81;
Byron Shire Council v Fletcher (2005) 143 LGERA 155;
Cameron v Eurobodalla Shire Council [2006] NSWLEC 47 (13 February 2006);
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1992) 32 NSWLR 683;
Carlino v Leichhardt Municipal Council (2005) 144 LGERA 235;
Cliftleigh Haulage Pty Ltd v Byron Shire Council [2005] NSWLEC 692 (1 December 2005);
Cooper v Coffs Harbour Council (1997) 97 LGERA 125;
Ex parte Morrissey (1911) 11 SR (NSW) 550; ;
Ex parte Day; Re Crampton (1943) 43 SR (NSW) 349;
Gittany Constructions Pty Limited v Sutherland Shire Council [2006] NSWLEC 242 (10 May 2006);
Holroyd City Council v Skyton Developments Pty Limited (2002) 119 LGERA 225;
Keir v Sutherland Shire Council [2004] NSWLEC 754 (7 December 2004);
Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89;
R v Kent Justices [1936] 1 KB 54;
R v Longshaw (1990) 20 NSWLR 554;
R v Oliver (1980) 7 A Crim R 174;
R v Thomson; R v Houlton (2000) 49 NSWLR 383;
R v Visconti (1982) 2 NSWLR 104;
Ryde City Council v Calleija (1998) 99 LGERA 360;
Sutherland Shire Council v Nustas [2004] NSWLEC 608 (3 November 2004);
Sutherland Shire Council v Turner [2004] NSWLEC 774 (18 June 2004);
Thornloe v Filipowski (2001) 52 NSWLR 60;
Weininger v The Queen (2003) 212 CLR 629

DATES OF HEARING:

31/07/2006

 
DATE OF JUDGMENT: 

08/08/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr D Groundwater (solicitor)
SOLICITORS
Warren McKeon Dickson Lawyers

RESPONDENT
Ms J Blunden (solicitor)
SOLICITORS
Houston Dearn O'Connor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

8 AUGUST 2006

60010 OF 2006

ADVANCED ARBOR SERVICE PTY LTD V STRATHFIELD MUNICIPAL COUNCIL

JUDGMENT

1 HIS HONOUR: The appellant, Advanced Arbor Service Pty Ltd, appeals against the severity of the sentence imposed by Magistrate G E Bradd of the Local Court at Burwood in proceedings prosecuted by Strathfield Municipal Council (“the Council”) for contravention of the Environmental Planning and Assessment Act 1979 (NSW) (“EPA Act”).

2 The appellant pleaded guilty to having committed an offence against ss 125(1) and 76A(1)(a) of the EPA Act in that it cut down and removed a tree without development consent.

3 The tree was of a eucalypt species and was located in a planter bed in the rear of the property at 64-70 Albert Road, Strathfield. The property was a nursing home, the Strathdale Nursing Home, operated by Columbia Nursing Homes Pty Limited (“Columbia”). The tree was cut down and removed by employees of the appellant on 15 February 2005.

4 The appellant pleaded guilty to the charge. The sentence hearing took place on 13 April 2006 before the Local Court at Burwood. The Local Court convicted the appellant, fined it $10,000 and ordered it to pay the Council’s legal costs of $2,240 and court costs of $65.

5 On 10 May 2006, the appellant lodged an appeal in this Court, assigned to Class 6 of the Court’s jurisdiction, against the “severity of sentence” of the Local Court. However, the prime reason for the appellant considered the sentence of the Local Court to be too severe is that the Local Court convicted the appellant. It is the conviction that the appellant says operates harshly on the appellant.

6 The appellant’s concern with its conviction necessitates consideration of the nature of an appeal against sentence in contrast to an appeal against conviction. Is the appellant able in an appeal against sentence to seek the setting aside of the conviction and the substitution of an order dismissing the charge? If not, can the appellant now appeal against its conviction?

Appeals against sentence and conviction

7 An appeal against the severity of a sentence is made to the Court as of right under s 31(1) of the Crimes (Local Courts Appeal and Review) Act 2001 (NSW) (“the Review Act”).

8 A “sentence” is defined in s 3(1) of the Review Act to include, relevantly, any order made by a Local Court “in respect of a person, as a consequence of its having convicted the person of an offence”, including a fine (paragraph (a)), an order made by a Local Court in respect of a person under s 10 of the Review Act on finding the person guilty of an offence (paragraph (b)) and an order for costs made by a Local Court against a person in connection with summary proceedings taken against the person (paragraph (e)).

9 An appeal against sentence is to be contrasted with an appeal against conviction.

10 An appeal against conviction can either be as of right or by leave of the Court, depending on whether the person was convicted in the person’s absence or following the person’s plea of guilty. If the person was convicted neither in the person’s absence nor following a plea of guilty by the person, the person may appeal against the conviction as of right: s 31(1) of the Review Act. If the person was convicted in the person’s absence or following the person’s plea of guilty, the person may appeal against the conviction only on a ground that involves a question of law alone and only by leave of the Court: s 31(1A) and s 32(1) of the Review Act.

11 The distinctions in the Review Act, first, between an appeal against sentence and an appeal against conviction and, secondly, between an appeal against conviction by a person who has been convicted in the person’s absence or following a person’s plea of guilty and by a person who has been convicted not in those circumstances, are of importance in this case.

12 In former times, the relevant statute afforded all persons convicted of an offence a right of appeal from magistrates against the whole conviction (which included both the verdict of guilty and the sentence). The statute did not exclude from the right of appeal convicted persons who had pleaded guilty. Hence, where a convicted person appealed, although the appeal may have been stated to be against the sentence only, the court hearing the appeal could quash the conviction when the respondent prosecutor did not appear to prove the facts: see Ex parte Morrissey (1911) 11 SR (NSW) 550 at 552-553; Ex parte Day; Re Crampton (1943) 43 SR (NSW) 349 at 351.

13 However, when the relevant statute was amended so that a person who had pleaded guilty could appeal as of right only against the sentence imposed by magistrates, the appellate court no longer had the power, on an appeal against sentence by a person who has pleaded guilty, to quash the conviction: see R v Kent Justices [1936] 1 KB 547 at 556. The court could only set aside or vary the sentence.

14 This is the situation that now exists under the Review Act: see s 11 and 12 for appeals from the Local Court to the District Court and ss 31 and 32 for appeals from the Local Court to the Land and Environment Court.

Appeal against conviction required

15 The importance of these distinctions in this case is that the appellant did plead guilty to the offence before the Local Court. The Local Court convicted the appellant of the offence following the appellant’s plea of guilty. The Local Court’s orders, as a consequence of its having convicted the appellant of the offence, were to impose a fine of $10,000 and order the appellant to pay the Council’s costs and the court costs. Collectively, these orders consequent on conviction, but not the conviction itself, constitute the sentence of the Local Court. The appellant, pursuant to s 31(1) of the Review Act, appealed as of right against the sentence imposed by the Local Court.

16 Yet, at the heart of the appellant’s argument that the sentence is too severe is a dissatisfaction with the decision of the Local Court not to make an order under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”). That section empowers a court that finds a person guilty of an offence to make an order, without proceeding to conviction, directing that the relevant charge be dismissed.

17 The appellant had submitted at the sentence hearing before the Local Court that the Court should make an order under s 10 of the Sentencing Procedure Act, but the Court determined in its discretion not to make such an order. Accordingly, the Local Court proceeded to convict the appellant and to pass sentence as a consequence of its having convicted the appellant.

18 The appellant seeks on its appeal against sentence to this Court for this Court to reconsider exercising the power under s 10(1)(a) of the Sentencing Procedure Act to make an order, without proceeding to conviction, dismissing the charge. In order for this Court to do so, however, it would have to set aside the conviction imposed by the Local Court.

19 Such an order setting aside a conviction is available only on an appeal against conviction: s 39(1) of the Review Act. It is not available on an appeal against sentence only: see s 39(2) and the definition of sentence in s 3 of the Review Act. The sentence does not include the conviction itself.

20 Hence, although the appellant has stated that its appeal is an appeal only against sentence, if the appellant wishes for the Court to set aside the conviction, the appellant must also appeal against the conviction.

Leave for appeal against conviction required

21 However, because the appellant was convicted following the appellant’s plea of guilty, it cannot appeal as of right against the conviction: see s 31(1A) and 32(1) of the Review Act. Any appeal against conviction can only be by leave of the Court and only on a ground that involves a question of law alone: s 32(1) of the Sentencing Procedure Act.

22 On the hearing of its appeal before this Court, the respondent Council submitted that, insofar as the appellant seeks for this Court to set aside the conviction and sentence and instead make an order under s 10(1)(a) of the Sentencing Procedure Act, the appellant would need leave to appeal under s 32(1) of the Review Act and could appeal only on a ground that involves a question of law alone.

23 On being faced with this hurdle, the appellant submitted that, if leave to appeal under s 32(1) of the Review Act was required in order for it to seek to set aside the conviction, then it sought such leave to appeal against conviction.

Leave for appeal against conviction cannot be granted

24 There are a number of difficulties with the appellant now seeking leave to appeal under s 32(1) of the Review Act against the conviction. First, an application for leave to appeal under s 32(1) is required to be made within 28 days after the sentence is imposed by the Local Court: s 32(4)(a)(i) of the Review Act. Late applications for leave to appeal can be made but only by leave of the Land and Environment Court: s 33(1)(b) of the Review Act. However, any late application for leave to appeal must be made within three months after the relevant conviction and sentence is imposed: s 33(2) of the Review Act.

25 In this case, the conviction and sentence were imposed by the Local Court on 13 April 2006. The application for leave to appeal, if treated as being made orally at the hearing before this Court, was made on 31 July 2006. This is evidently outside of the 28 day period allowed under s 32(4), but is also outside the three month period in which late applications for leave to appeal can be made under s 33(2) of the Review Act. Accordingly, any application by the appellant for leave to appeal against the conviction imposed on 13 April 2006 is time-barred.

26 Secondly, the oral application at the hearing before this Court does not comply with the requirements for making an application for leave to appeal under s 34 of the Review Act. Application for leave to appeal under s 32 is to be made by lodging a written application for leave to appeal, together with a written notice of appeal: s 34(3) of the Review Act. The application for leave to appeal must state the general grounds of the application. In addition, in the case of an application under s 33 seeking leave of this Court to apply for leave to appeal out of time, the application must state the reasons why application for leave to appeal was not made within the time allowed by s 32(4) of the Review Act: see s 34(4) of the Review Act. The notice of appeal which must be made with the application for leave to appeal, is required to state the general grounds of appeal: s 34(2) of the Review Act. None of these requirements of s 34 have been complied with in this case.

27 The appellant stated orally that the grounds for making application for leave to appeal were the grounds that it advanced in its arguments in support of the Court exercising the power under s 10(1)(a) of the Sentencing Procedure Act. The general grounds of the notice of appeal against conviction were said to involve questions of law. The questions of law identified orally were that the Local Court did not take into account, in exercising the discretion in s 10 of the Sentencing Procedure Act, the assistance the appellant had provided to the Council in the prosecution of Columbia (as required by s 21A(3)(m) and s 23 of the Sentencing Procedure Act) and also did not give sufficient weight to the mitigating factors relevant to the appellant in s 21A(3) of the Sentencing Procedure Act. These factors were said to be relevant to the factors in s 10(3) of the Sentencing Procedure Act.

28 It is not necessary that I determine whether the appellant’s non-compliance with the requirements of s 34 of the Review Act is fatal to the making of application for leave to appeal against the conviction. This is because, in this case, the time-bars in ss 32(4) and 33(2) of the Review Act prevent the appellant from being able to seek leave to appeal against conviction under s 32(1) of the Act.

Appeal is against sentence only

29 Accordingly, the appellant is restricted in its appeal to this Court to arguing that the sentence imposed by the Local Court, importantly the fine of $10,000, is too severe. It is not open to the appellant to argue that this Court can set aside the conviction and instead substitute an order under s 10(1)(a) of the Sentencing Procedure Act that, without proceeding to conviction, the charge be dismissed.

30 The Court deals with an appeal against severity of sentence by way of a rehearing: Cooper v Coffs Harbour Council (1997) 97 LGERA 125 at 127-128; Cliftleigh Haulage Pty Ltd v Byron Shire Council [2005] NSWLEC 692 (1 December 2005) at [16]-[20]; Gittany Constructions Pty Limited v Sutherland Shire Council [2006] NSWLEC 242 (10 May 2006) at [20]-[21].

31 The evidence consists primarily of certified transcripts of evidence given in the Local Court: s 37(1) of the Review Act. The Court may grant leave to adduce new evidence, but only if satisfied that it is in the interests of justice that fresh evidence be given: s 37(2) of the Review Act. The Court resolves for itself afresh on the evidence before the Court the ultimate issues for determination, in this case the appropriate sentence: see Cooper v Coffs Harbour Council (1997) 97 LGERA 125 at 127-128; R v Longshaw (1990) 20 NSWLR 554 at 559-564; Budget Nursery Pty Ltd v Commissioner of Taxation (1989) 42 A Crim R 81 at 87.

The evidence on the appeal

32 The appeal proceeded on the evidence before the Local Court being:

(a) The transcript of the hearing in Burwood Local Court on 13 April 2006 (Exhibit A);

(b) Court Attendance Notice dated 21 March 2006 detailing the offence (Exhibit B);

(c) Statement of Dennis Flaherty dated 5 April 2006 (Exhibit C);

(d) Statement of Kaye Pritchard dated 30 March 2006 (Exhibit D);

(e) Bundle of Documents No. 2 (Exhibit E);

(f) Order Form from Columbia Nursing Homes Pty Ltd to Advanced Arbor Service Pty Limited dated 8 February 2005 (Exhibit F);

(g) Advanced Arbor Service Pty Limited’s Integrated Management System Procedure, Preparation of Quotes, Version: 23 January 2006 (Exhibit G);

(h) Letter from David Beattie, Managing Director, Advanced Arbor Service Pty Limited, to the Presiding Magistrate, Burwood Local Court dated 7 April 2006 (Exhibit H);

(i) Letter from Howard Lucas, Team Manager, Electrical Mains Metro South Division, Rail Corporation NSW to the Presiding Magistrate, Burwood Local Court dated 6 April 2006 (Exhibit J);

(j) Letter from Shiu Narayan, President, Tree Contractors Association Australia Inc to the Presiding Magistrate, Burwood Local Court, 16 April 2006 (Exhibit K);

(k) Letter from Craig Hinton, President, International Society of Arboriculture (Australia Chapter) Ltd to the Presiding Magistrate, Burwood Local Court, dated 11 April 2006.

33 The appellant also sought leave under s 37(2) of the Review Act to read two affidavits, one by David Beattie sworn 28 July 2006 and the other by David Thomas Matthews sworn 28 July 2006. These affidavits provided evidence of the matters that had been stated from the bar table by the appellant in the original sentence hearing before the Local Court. Mr Beattie’s evidence concerned the procedure for the preparation of quotes at the time of the offence and the revision of that procedure after the offence. Mr Matthews’ evidence concerned the preparation of the quote for the tree the subject of the offence and the cutting down and removal of the tree.

34 The Council did not oppose leave being granted to read the evidence. I granted leave to read the two affidavits, being of the opinion that it was in the interests of justice that sworn testimony rather than mere statements from the bar table be before the Court in relation to the matters which were the subject of the affidavits.

The incident and surrounding circumstances

35 A Tree Preservation Order has been made pursuant to the relevant environmental planning instrument, Strathfield Planning Scheme Ordinance and applies through the local government area of Strathfield. The Tree Preservation Order prohibits the ring-barking, cutting down, lopping, removing or wilfully destroying any tree that has a girth greater than 0.5 metres measured at 1 metre above ground level or a height greater than 4 metres, except with the written consent of the Council.

36 On 14 January 2005, the Council received an application for a permit under the Tree Preservation Order to remove “2 gum trees”. One of the trees was at the front of the premises of the Strathdale Nursing Home, and the other was at the rear of the premises in Ardittos Lane.

37 On 2 February 2005, the Council issued a Tree Preservation Permit No. 9490 permitting the removal of the tree at the rear of the property. The tree was identified in the permit as a Eucalyptus robusta. The precise work permitted was “removal (1) Eucalyptus robusta (rear of property adjacent to lane)”.

38 Also on 2 February 2005, the Council issued a Tree Preservation Denial No. D1137 denying permission to remove the tree at the front of the premises, identified as a Eucalyptus scopalia.

39 On 8 February 2005, the appellant received an Order Form from Columbia requesting:

“Would [you] please arrange for someone to attend the above facility and quote for removal of the 2 trees at rear of building also for removal of tree stumps, Council has approved removal and a copy is attached”.

The Columbia contact given was Stephen Mitchell.

40 The Tree Preservation Permit No. 9490 was attached to the Order Form. As I have noted, the work approved by this permit was not two trees at the rear of the building as stated by Columbia in the Order Form but rather “remove (1) Eucalyptus robusta (rear of property adjacent to lane)”.

41 On receiving the Order Form, the office staff of the appellant prepared a Quote Enquiry Form from the appellant’s computer system. The Quote Enquiry Form stated the customer’s name, address and contact details. It stated the job description to be “2 x unknown trees – remove and grind”. The tree location was stated to be “rear of building”. It stated in answer to the question “Council approval”, “yes” and gave a “Council Ref” of “9490”.

42 Sometime between 8-14 February 2005, Mr David Matthews, a tree cutter employed by the appellant as the supervisor of a work crew, found the Quote Enquiry Form in his pigeon hole at the appellant’s office. The Quote Enquiry Form had the Tree Preservation Permit attached to it.

43 Mr Matthews stated that prior to February 2005, Mr David Beattie, the managing director of the appellant, had explained to him that his role of supervisor involved ensuring that the appellant had been provided with a copy of a Tree Preservation Permit that permitted the work referred to on the Quote Enquiry Form. Mr Matthews said that, in the present case, he checked there was a Tree Preservation Permit with the Quote Enquiry Form but he did not look at the contents of the Tree Preservation Permit. Accordingly, he overlooked the statement in the Tree Preservation Permit that it permitted the removal of only one tree and not two as stated on the Quote Enquiry Form.

44 On 14 February 2005, Mr Matthews attended the Strathdale Nursing Home at 64-70 Albert Street, Strathfield to inspect the trees and provide a quotation. He met Mr Stephen Mitchell, one of the managers at Strathdale Nursing Home.

45 Mr Matthews said that Mr Mitchell took him to the rear of the premises, pointed to two eucalypt trees close to the boundary of the road and said words to the effect:

“I need a quote for the removal of those two trees and their stumps. I’ve got the approval here”.

46 Mr Matthews said that Mr Mitchell did not show him the Council approval for the removal of the trees and Mr Matthews said he did not ask for it at that time. Mr Matthews looked at the trees and said words to the effect:

“To remove the two trees and grind the stumps will be $2,300 plus GST. When do you want the work done?”

47 Mr Mitchell replied:

“I will go inside and see if that is approved”.

48 Mr Mitchell stepped away, went into the nursing home building and when he returned he said words to the effect:

“The quote is approved. Please start straight away”.

49 Mr Matthews said that after his oral quotation was accepted, he returned to the appellant’s office and generated a written quotation on the company system no 13081 dated 14 February 2005. That written quotation described the work as “2 x unknown trees – remove and grind”. It stated the price as being the quoted sum of $2,300 plus GST of $230 to give a total including GST of $2,530. The written quotation No. 13081 did not refer to the Tree Preservation Permit.

50 Mr Matthews attended the Strathdale Nursing Home on the next day, 15 February 2005, and supervised the removal of the two trees pointed out by Mr Mitchell. One of the trees removed was the Eucalyptus robusta tree that was the subject of the Tree Preservation Permit. However, the other tree, of an unknown Eucalyptus species, was not permitted to be removed by the Tree Preservation Permit.

51 The Eucalyptus species removed was of a height greater than 4 metres and had a girth greater than 0.5 metres measured 1 metre above the ground. It was therefore protected by the Tree Preservation Order and could not be cut or removed without the written consent of the Council.

52 On the day the trees were cut down and removed, 15 February 2006, Mrs Kaye Pritchard observed the carrying out of the work. Mrs Pritchard lives over the lane. She was concerned at the removal of the two trees. The trees screened the view from her property to Strathdale Nursing Home. They were of value in protecting her privacy and preserving her amenity. The trees also had a benefit, she said, in filtering the exhaust fumes from the Strathdale Nursing Homes’ laundry.

53 Mrs Pritchard approached the men carrying out the work. She says she spoke to a man who appeared to be in charge of the operation. The following conversation occurred:

Pritchard: “Why are you chopping down the trees?”

He replied: “The hospital arranged it”.

Pritchard: “Why does the hospital want the trees cut down?”

He replied: “They are putting in boom gates”.

54 Subsequently, a security fence with locking gates was erected by Columbia on the rear boundary of the premises. The security gate was located near to where the trees had been removed. The security fence and gates were observed by Mr Dennis Flaherty, a tree coordinator of the Council, and also Mr Matthews on his return to the site.

The appellant’s response to the incident

55 The appellant assisted the Council in its investigation of the offence, including providing documents and an explanation of the process of quotation and carrying out the work: see, for example, the letter of 4 November 2005 and the email of 9 November 2005 from Mr Beattie to the Council.

56 The appellant has offered to rectify the damage caused by removal of the tree in the form of supplying or planting any replacement trees, either at the property or in another suitable area.

57 The appellant has changed its quotation procedure to ensure that the mistake that occurred on this occasion will not occur in the future. The Quote Enquiry Form is now checked to the relevant Tree Preservation Permit by two persons, firstly by the office staff person who prepares the Quote Enquiry Form, and secondly, by the supervisor who provides the quote and carries out the work.

The sentence imposed by the Local Court

58 The appellant first appeared before Burwood Local Court on the return of the Court Attendance Notice on 6 April 2006. The Council mentioned the matter by consent of the defendant and requested that the matter be adjourned to 13 April 2006 for plea or mention. On 13 April 2006, the appellant by its solicitor entered a plea of guilty to the charge. The hearing on sentence took place immediately. Magistrate Bradd delivered an ex tempore judgment. Magistrate Bradd referred to the following factors relevant to sentencing:

(a) The appellant is a large arborist company which, in the year to 31 March 2006, completed 1,764 tree maintenance jobs with more than 90% of those projects being for government related organisations: p 7 of transcript of 13 April 2006.

(b) The offence is out of character for the appellant. The letter from Rail Corp indicates that the appellant has always carried out work appropriately and obtained appropriate Council removals for tree removal work. The letter from the Tree Contractors Association indicates that the appellant is a member of the association and the offence is not within the character or reputation of the company. The appellant is also a member of the International Society of Arboriculture: p 7 of transcript of 13 April 2006.

(c) The offence involved an oversight of procedures in place by the company. It did not involve a flagrant ignoring of Council requirements. The offender’s conduct was therefore distinguishable from that in Cameron v Eurobodalla Shire Council [2006] NSWLEC 47 (13 February 2006): p 8 of transcript of 13 April 2006.

(d) The jurisdictional maximum penalty in the Local Court is $110,000. The maximum penalty for the offence reflects the legislature’s view of the seriousness of the offence. This is a matter that the Court has to take into account when assessing the objective seriousness of these types of offences: p 8 of transcript of 13 April 2006.

(e) The offence caused significant environmental harm. It involved the removal of a substantial tree, more than 4 metres in height with a girth of 0.5 metres, 1 metre from the ground: p 8 of transcript of 13 April 2006.

(f) There was a need for general deterrence. Cameron v Eurobodalla Shire Council [2006] NSWLEC 47 (13 February 2006) stated that general deterrence is a matter of central importance in environmental cases and that there was a need for upholding of the integrity of the system of planning development and control: at [71] and [72]. The penalty which is appropriate for an environmental offence of the kind before the Court is one which not only deters the offender but also deters others, being other contractors in this case, from committing similar offences. The planning system would be rendered ineffective if these matters were not dealt with seriously because there would be no deterrence to persons committing these types of offences: pp 8-9 of transcript of 13 April 2006.

(g) The subjective elements favouring the appellant included the fact that the appellant made a plea at the first opportunity, had no prior convictions and made, prior to the matter coming to court, an offer to replace the tree. The appellant was also remorseful and was concerned about its reputation and that any conviction would have an ongoing effect on the reputation of the company: p 9 of transcript of 13 April 2006.

(h) There is a need for consistency in sentencing. Of the cases referred to in Cameron v Eurobodalla Shire Council [2006] NSWLEC 47 (13 February 2006), the most relevant were Active Tree Services Pty Limited v Ku-ring-gai Municipal Council [2005] NSWLEC 431 (9 August 2005) and Holroyd City Council v Skyton Developments Pty Limited (2002) 119 LGERA 225 where the offenders were fined $10,000 and $15,000 respectively: p 9 of the transcript of 13 April 2006.

(i) The application for an order under s 10(1)(a) of the Sentencing Procedure Act not to record a conviction but to dismiss the charge should be rejected. In the appellant’s favour were the factors that the appellant had pleaded guilty, had no prior matters before the court and did not have a particular motivation to remove the tree but it was basically an oversight by the company. However, the matter was certainly not trivial. There was a need to provide specific deterrence to the company. The company needs to ensure that its procedures require a person of appropriate ability or status within the company to ensure that requests by persons to remove trees are in accordance with Council consent. There is also a need to provide general deterrence to other arborists who are involved in the same field to ensure that those companies realise the significance of removing trees without Council consent and particularly removing whole trees and large trees: pp 9-10 of transcript of 13 April 2006.

59 Magistrate Bradd determined that the appropriate sentence was a fine of $10,000.

Appellant’s submissions

60 The appellant submitted that it is a sizable and reputable arborist. The appellant has provided program tree maintenance, tree removal and vegetation control solutions to Federal, State and Local Government and private corporations since 1992. The appellant is a quality endorsed company under ISO9001. The appellant conducted 1,764 tree maintenance projects in the 12 months ending 31 March 2006, 90% of these were for Government instrumentalities. The appellant currently provides services to 22 councils in the Sydney CBD.

61 The appellant submitted that it did have procedures in place to comply with requirements to obtain and act in accordance with a consent for the cutting or removal of a tree. The appellant’s usual procedure was to not remove a tree that requires consent without obtaining consent. The appellant’s usual procedure included obtaining a copy of any requisite consent or permit.

62 In this case, the appellant received a work order from Columbia requesting the removal of two trees at the rear of its premises. A copy of the relevant permit from the Council was provided. The appellant’s supervisor, David Matthews, attended a site meeting with Stephen Mitchell of Columbia and Mr Mitchell directed him to remove two trees.

63 The appellant’s employee, David Matthews, did not look specifically at the text of the Tree Preservation Permit which permitted the removal of 1 tree only. Mr Matthews conceded that this was an oversight on his part.

64 The appellant submitted there was no element of intention on the part of the appellant to commit an offence. The appellant’s part in the removal of the tree was not deliberate but was the result of an oversight. Mr Matthews ensured that he had a Tree Preservation Order but did not properly read it. The appellant’s culpability is at the lower end of the spectrum and should be distinguished from the more common cases where trees are removed deliberately to improve a view or for the purpose of development.

65 The appellant submitted that throughout this matter the appellant has assisted the Council with its investigation and by letter to Council dated 4 November 2005 offered to rectify the situation by supplying and planting replacement trees.

66 The appellant has been informed by the Council that the Council is also prosecuting the proprietors of Columbia. Since receiving Mr Matthews’ affidavit, Council has requested the appellant’s further assistance in its prosecution of Columbia and such assistance is being provided.

67 The appellant submitted that as a result of this incident the appellant has already been penalised monetarily in that it has lost its valuable contract with the Council.

68 A conviction in this matter will affect the appellant’s ability to maintain its valuable contracts with Councils and other Government departments. This will also affect its ability to tender for work in the future. As a result, there is no need for specific deterrence in this case.

69 The appellant submitted that this is the appellant’s first offence. The letter from Rail Corp. dated 6 April 2006 supports the submission that the appellant has always negotiated and obtained appropriate Council approval for tree removal work.

70 The appellant submitted that it has exhibited contrition and remorse over this incident, evidenced by:

(a) its offer in November 2005 to make good by the planting of replacement trees. The appellant renews that offer to plant appropriate replacement trees and maintain those for 12 months;

(b) amending its procedure to prevent further offence;

(c) offering to pay the Council’s legal costs of these proceedings and in the Council’s proceedings against Columbia;

(d) provided assistance to the Council in these proceedings and in the Council proceedings against Columbia.

71 The appellant relies on the support letter from the Tree Contractors Association and the International Society of Arboriculture (Australian Chapter) as evidence of its good character.

72 The appellant submitted that even though there is a need for general deterrence, perhaps this case could be distinguished because there was a procedure in place to ensure that consent was obtained, the procedure was followed but a mistake was made.

73 Finally, the appellant referred to the general principle that sentence must be “proportionate to the gravity of the crime considered in light of its objective circumstances”: Thornloe v Filipowski (2001) 52 NSWLR 60 at 69 [127] per Spigelman CJ quoting Hoare v The Queen (1989) 167 CLR 348 at 354.

Respondent’s submissions

74 The Council referred to the maximum statutory penalty of $1,100,000 as evidence of the seriousness of the offence.

75 The Council submitted that the environmental harm was serious. The tree removed was a mature tree that had been planted between 25-30 years ago which had reached the height of a telegraph pole. The tree was situated in premises in the inner west of Sydney. The nursing home was three stories high. The tree provided visual and noise amenity to persons living in the near vicinity.

76 The Council submitted the Court should consider general deterrence in sentencing. There was a need for general deterrence in sentencing for offences against the EPA Act: Ryde City Council v Calleija (1998) 99 LGERA 360; Cooper v Coffs Harbour City Council (1997) 97 LGERA 125; Keir v Sutherland Shire Council [2004] NSWLEC 754 (7 December 2004); Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357; and Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1992) 32 NSWLR 683. There was a need to uphold the integrity of the system of planning and development control: Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89; Carlino v Leichhardt Municipal Council (2005) 144 LGERA 235; Sutherland Shire Council v Turner [2004] NSWLEC 774 (18 June 2004).

77 The Council submitted that, although the appellant had procedures that required clients to provide evidence of council approval to do the work, the employee of the appellant in this case did not check the tree permit submitted by the client, but instead relied on instructions given by an employee of Columbia. The employee of the appellant would have been familiar with Council requirements that consent is required to remove healthy trees. The employee ought to have read and checked that the tree permit authorised the work instructed by the client.

78 The Council conceded that there were mitigating circumstances which should be taken into account, including the assistance given by the appellant to the Council in relation to these proceedings and the proceedings against Columbia and the appellant entering a plea of guilty at the first available opportunity.

79 The Council submitted that the court should consider the principle of even-handedness when imposing the sentence: R v Visconti (1982) 2 NSWLR 104; R v Oliver (1980) 7 A Crim R 174. The Council submitted the sentences imposed in Holroyd City Council v Skyton Developments Pty Ltd (2002) 119 LGERA 225 and Active Tree Services Pty Ltd v Ku-ring-gai Council [2005] NSWLEC 431 (9 August 2005) were relevant.

80 The Council submitted that it should be awarded its costs of the appeal, and keep the order of costs in its favour awarded by the Local Court.

Appropriate sentence

81 In my opinion, the sentence of a fine in the amount of $10,000 is an appropriate sentence. It is proportionate both to the objective gravity or seriousness of the offence as well as the subjective or personal circumstances of the appellant. My reasons are as follows.

Objective gravity of the offence

82 The factors which establish the objective gravity of the offence are the environmental harm caused, the fact that the offence was committed negligently and the need for general deterrence, especially of professional arborists engaged in development work.

Environmental harm

83 The offence occasioned actual environmental harm. The tree was of a native species, mature and of a considerable size (at least 4 metres or the height of a telegraph pole). The tree provided benefits in the form of visual screening of the nursing home building, protection of privacy for adjoining houses and filtering of laundry exhaust fumes. The tree was located in an inner west suburb of Sydney where mature vegetation is less common.

Offence committed negligently

84 The offence occurred because of the failure of the appellant’s employees to follow obvious procedures.

85 The appellant had been provided with a copy of the Tree Preservation Permit. The Permit stated plainly on its face that permission had been given for only one tree to be removed and the tree was identified by its species, Eucalyptus robusta. The Order Form of the client, Columbia, was plainly on its face inconsistent with the Tree Preservation Permit. The Order Form requested the removal of two trees, not one, and of an unknown species, not of the species Eucalyptus robusta.

86 The appellant’s office staff who received the client’s Order Form together with the Tree Preservation Permit were negligent in entering the data into the appellant’s computer to generate the appellant’s Quote Enquiry Form. The office staff would have had to have read the Tree Preservation Permit in order to enter on the Quote Enquiry Form, not only the affirmative answer to the question of whether Council approval had been obtained, but more particularly the Council reference number “9490”. This number was stated on the Tree Preservation Permit only. The number was not stated on the Columbia Order Form. Yet, notwithstanding the office staff necessarily had to have read the Tree Preservation Permit, they failed to note the inconsistencies between the Permit and the Order Form and generated the Quote Enquiry Form specifying the job description as “2 x unknown trees – removal and grind”.

87 This negligence of the appellant’s office staff was compounded by the further negligence of Mr Matthews, the tree cutter and work crew supervisor who the appellant assigned the task of quoting for and carrying out the job. Mr Matthews knew he was required to check that there was Council approval to carry out any work for which the appellant quoted. He had received, prior to quoting on the Columbia job, not only the Quote Enquiry Form but also a copy of the Tree Preservation Permit. Again, the most cursory reading of the Tree Preservation Permit would have revealed to Mr Matthews that the Quote Enquiry Form was inconsistent with the Tree Preservation Permit and that there was only permission to remove one Eucalyptus robusta tree and not two unknown trees. However, Mr Matthews failed to read the Tree Preservation Permit given to him.

88 On arrival at the site, Mr Matthews was shown two trees by Mr Mitchell. Mr Mitchell said: “I’ve got the approval here”. Again, however, Mr Matthews failed to look at the Tree Preservation Permit that Mr Mitchell said he had.

89 Mr Matthews returned to the appellant’s office and generated a written quotation for the work but he still failed to read the Tree Preservation Permit which he had been given.

90 Finally, on the next day, Mr Matthews supervised the removal of the two trees, still not having read the Tree Preservation Permit.

91 These repeated failures by Mr Matthews involved negligence in the discharge of his duties.

92 The appellant is vicariously responsible for these negligent actions and omissions of its office staff and its supervisor of the work crew that quoted for and carried out the tree removal. The offence, although one of strict liability, was therefore committed negligently. An offence of strict liability offence committed negligently is objectively more serious than one which is committed unintentionally or non-negligently.

Need for general deterrence

93 There is a need for general deterrence for environmental offences and, in particular, for offences involving the removal of trees without or contrary to development consent: see the cases set out in Cameron v Eurobodalla Shire Council [2006] NSWLEC 47 (13 February 2006) at [59], [71]-[80] and Gittany Constructions Pty Limited v Sutherland Shire Council [2006] NSWLEC 242 (10 May 2006) at [103].

94 There is a need for upholding the integrity of the system of planning and development control. This system depends on persons, first, taking steps to obey the law by ascertaining when development consent is required, secondly, obtaining any development consent so required before carrying out development and, thirdly, complying with the terms and conditions of the development consent: Byron Shire Council v Fletcher (2005) 143 LGERA 155 at 164 [60] -165 [61] and Gittany Constructions Pty Limited v Sutherland Shire Council [2006] NSWLEC 242 (10 May 2006) at [104]-[105].

95 There is a particular need for general deterrence with respect to persons who carry out development work, such as those involved in the demolition, excavation, earthmoving, building, construction, development, landscaping and arboriculture industry. A sentence must send a strong warning to such persons who carry out development work that breach of the law will be visited with significant financial consequences: Keir v Sutherland Shire Council [2004] NSWLEC 754 (7 December 2004) at [20]; Carlino v Leichhardt Municipal Council (2005) 144 LGERA 235 at 242 [32]-[34]; Sutherland Shire Council v Nustas [2004] NSWLEC 608 (3 November 2004) at [18]; Active Tree Services Pty Ltd v Ku-ring-gai Municipal Council [2005] NSWLEC 431 (9 August 2005) at [49]; Byron Shire Council v Fletcher (2005) 143 LGERA 155 at 165 [62], [63]; Gittany Constructions Pty Limited v Sutherland Shire Council [2006] NSWLEC 242 (10 May 2006) at [191].

Subjective circumstances of the offender

96 Within the outer bounds set by the objective gravity of the offence, the court may take into account the factors personal to the offender. These are that the offender has no prior convictions, has a prior good character, entered an early plea of guilty, is contrite and remorseful, assisted the Council and has suffered legal and economic consequences by being convicted.

No prior convictions

97 The appellant has no prior convictions: s 21A(3)(e) of the Sentencing Procedure Act.

Prior good character

98 The prior good character of the appellant is shown not only by its lack of prior convictions, but also by it otherwise not having previously engaged in other criminal conduct: Weininger v The Queen (2003) 212 CLR 629 at 638 [25]. The latter aspect of the appellant’s good character is evidenced by the letters from Rail Corp, Tree Contractors Association Australia Inc, and International Society of Arboriculture (Australia Chapter) Ltd.

Plea of guilty

99 The appellant pleaded guilty at the first available opportunity. It should be afforded a discount of 25% recognising the full utilitarian value of its plea of guilty: R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 419 [160].

Contrition and remorse

100 The appellant is genuinely contrite and remorseful. The plea of guilty is one practical manifestation of the appellant’s contrition and remorse. Another manifestation is the appellant’s offer to make reparation for the damage caused by planting other trees: s 21A(3)(i) of the Sentencing Procedure Act. Furthermore, the appellant’s actions in revising its procedures for quoting and carrying out work to ensure the obtaining and compliance with a development consent and Tree Preservation Permit, indicates a genuine desire to act responsibly.

101 Finally, the appellant through its managing director, Mr Beattie, has expressed genuine contrition and remorse for committing the offence. Such expressions are to be found in Mr Beattie’s letters to the Council, his letter to the Local Court, his affidavit evidence in this Court and the submissions of the appellant’s solicitor at the hearing. Furthermore, Mr Beattie attended the hearing of the appeal in this Court.

Assistance to authorities

102 The appellant has co-operated with and assisted the Council in the investigation of the offence committed by the appellant and in the investigation and prosecution of the offence committed by Columbia by directing the removal of a tree without the requisite approval at law: ss 21A(3)(m) and 23(1) of the Sentencing Procedure Act.

Consequences of conviction

103 The appellant has suffered legal and economic consequences as a result of being convicted for the offence. The appellant lost the contract with the Council. It will suffer from the stigma of having a conviction.

Synthesis of factors

104 Taking these factors relevant to the gravity of the offence as well as the factors personal to the offender all into account, the appropriate sentence is a fine in the amount of $10,000.

Consistency

105 The principle of consistency or even handedness acts as a check to ensure that the sentence is within the range appropriate to the gravity of the particular offence and to the subjective circumstances of the particular offender. A review of the cases involving the cutting or removal of trees was undertaken in Cameron v Eurobodalla Shire Council [2006] NSWLEC 47 (13 February 2006) at [105] and Gittany Constructions Pty Limited v Sutherland Shire Council [2006] NSWLEC 242 (10 May 2006) at [183]-[187]. The sentences imposed in these cases reveals that a fine in the amount of $10,000 is within the appropriate range.

Orders

106 The Court makes the following orders:

1. The appeal is dismissed.

2. The penalty imposed by the Local Court of a fine of $10,000 is confirmed.

3. The appellant is to pay the respondent’s costs of the appeal, as agreed or assessed.

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