Burwood Council v Abdul-Rahman (No 2)

[2017] NSWLEC 177

Land and Environment Court

New South Wales

Medium Neutral Citation:	Burwood Council v Abdul-Rahman (No 2) [2017] NSWLEC 177
Hearing dates:	4 December 2017
Date of orders:	13 December 2017
Decision date:	13 December 2017
Jurisdiction:	Class 5
Before:	Moore J
Decision:	See orders at [84]
Catchwords:	SENTENCE – prosecution for removal of tree without development consent – tree in heritage conservation area – removal required approval of Council – no approval applied for – tree was mature Lemon-Scented Gum (Corymbia citriodora) – no evidence tree was dead at time of removal – no contrition or remorse – prior convictions for removal of trees – Defendant has significant experience with development approval process as applicant for developments consents including at least in eight (8) Class 1 development appeals in this Court – appropriate starting penalty $50,000 – no evidence of the Defendant’s incapacity to pay penalty – no basis to reduce penalty because of Defendant’s financial circumstances – no basis to discount penalty –Defendant fined $50,000.
Legislation Cited:	Burwood Local Environmental Plan 2012 Crimes Sentencing Procedure Act 1999, ss 21A Environmental Planning and Assessment Act 1979, ss 80A(1), 125(1), 125B and 126 Fines Act 1996, s 6 Protection of the Environment Operations Act 1997, Pt 8.3
Cases Cited:	Abdul-Rahman v Strathfield Municipal Council [2016] NSWLEC 1393 Burwood Council v Abdul-Rahman [2017] NSWLEC 103 Burwood Council v Jarvest Pty Ltd [2011] NSWLEC 109 Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349; [2006] NSWLEC 47 Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Chief Executive of the Office of Environment and Heritage v Cory Ian Turnbull [2017] NSWLEC 140 Ku-ring-gai Council v Edgar [2017] NSWLEC 49 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Mosman Municipal Council v Menai Excavations Pty Limited (2002) 122 LGERA 89; [2002] NSWLEC 132 Veen v The Queen (No 2) 164 CLR 465; [1988] HCA 14 Willoughby City Council v Rahmani [2017] NSWLEC 166 Wollongong City Council v Eldridge [2017] NSWLEC 35
Category:	Sentence
Parties:	Burwood Council (Prosecutor) Omar Abdul-Rahman (Defendant)
Representation:	Counsel: Mr S Shneider, solicitor (Prosecutor) Defendant in person   Solicitors: Houston Dearn O’Connor (Prosecutor)
File Number(s):	112255 of 2017
Publication restriction:	No

Judgment

Introduction

1. On 14 August 2017, I found Mr Abdul-Rahman guilty of a breach of the Environmental Planning and Assessment Act 1979 (the EP&A Act) (see Burwood Council v Abdul-Rahman [2017] NSWLEC 103). Mr Abdul-Rahman was self-represented at trial and at the sentencing hearing. On both occasions, this required me to give him appropriate procedural assistance (but not assistance with the merits of his case).

2. When I found Mr Abdul-Rahman guilty of the charge, I set the matter down for a sentencing hearing on 4 December 2017. At that time, I also made directions setting the timetable necessary for preparation leading up to this sentencing hearing.

Mr Abdul-Rahman’s offending conduct

3. The conduct for which Mr Abdul-Rahman has been convicted was the removal of a mature Lemon-Scented Gum (Corymbia citriodora) without seeking the approval of Burwood Council (the Council) for its removal.

4. The necessity for obtaining the Council's consent arose as a consequence of Mr Abdul-Rahman’s dwelling being located in a heritage conservation area and the Council's local environmental plan (Burwood Local Environmental Plan 2012) requiring the consent of the Council prior to the removal of a tree such as the Lemon-Scented Gum in a heritage conservation area.

5. The offence with which Mr Abdul-Rahman has been charged by the Council was the carrying out of development for which consent was required by the EP&A Act without obtaining that consent from the Council before doing so. The charge was laid pursuant to s 125(1) of the EP&A Act with the breach providing the foundation for the charge being found in s 76A(1)(a) of that Act.

Matters potentially relevant to sentence raised by Mr Abdul-Rahman

6. It is unnecessary to set out further details of the circumstances of Mr Abdul-Rahman’s offending conduct, but it is appropriate to note that, at his trial, Mr Abdul-Rahman asserted that there were several matters relevant to the outcome of these proceedings. As I then indicated, those matters were potentially ones going to the extent of penalty which might be imposed, but were not ones which provided any basis for not concluding he was guilty of the strict liability offence with which he had been charged. These matters were noted in my August decision (at [10] and [11]) as follows:

Mr Abdul-Rahman has raised a number of matters that he considers to be of an exculpatory nature. First, he says that the tree was dead. During his cross-examination of Mr Lilley, he asked why the Council did not provide information concerning the state of the tree at the time he ordered or authorised its removal.

Second, he says that he relied on an arborist with whom he consulted - that arborist being a Mr Abubakir Taleb - who Mr Abdul-Rahman said told him that the tree was dead and that it was permissible to remove it.

The evidence for the sentencing hearing

7. As noted above, I set a timetable for preparation for the sentencing hearing on 4 December. The terms of the directions for that timetable were:

The Defendant is to file and serve any material upon which the Defendant seeks to rely for sentencing by 4.00 pm on 27 October 2017.

The Prosecutor is to file and serve any material in reply upon which the Prosecutor seeks to rely for sentencing by 4.00 pm on 24 November 2017.

The matter is listed for a one-day sentencing hearing on 4 December 2017 at 10.00 am.

8. Mr Abdul-Rahman filed and served no material within the time specified. He provided short written submissions which were filed with the Court on 27 November, but which were not served on the Prosecutor. It is obvious that these submissions had been drafted for Mr Abdul-Rahman rather than by him but had, nonetheless been drafted on the basis of what he had instructed were the circumstances of his offending conduct. In at least one critical respect – Mr Abdul-Rahman’s continued assertion that the tree was dead – the submission is simply contradicted by the evidence (as later discussed).

9. He filed no evidence prior to the sentencing hearing. At the sentencing hearing, as he was self-represented, I raised with him the issue of the difference between evidence and submissions. The transcript of the short exchange was in the following terms (Transcript 4 December, page 4 at lines 8 to 16):

HIS HONOUR: …

I need to advise you of this however. There is a difference between evidence and submissions. Do you understand the difference between evidence and submissions, or would you like me to explain it to you?

RESPONDENT: I think evidence is what - is proven fact and submission is--

HIS HONOUR: What you say to me I should conclude from those facts.

RESPONDENT: Okay. Yeah.

10. Mr Abdul-Rahman elected not to give oral evidence, as was his right, and no inference is to be drawn from the absence of written or oral evidence on his behalf.

11. The Prosecutor relied on the evidence which had been before me at the earlier hearing. The Prosecutor provided written submissions which were also filed on 27 November. These submissions were drafted both in anticipation of the matters which the Prosecutor expected Mr Abdul-Rahman might raise at the sentencing hearing and also to cover those matters which the Prosecutor needed to raise, substantively, on sentencing related issues.

12. Mr Abdul-Rahman indicated that he had only received a copy of the Prosecutor's submissions on the morning of the hearing. In order to ensure that Mr Abdul-Rahman had an adequate opportunity to consider and respond to the Prosecutor's submissions, I adjourned for some 40 minutes to enable him to read the submissions and prepare any submissions he might wish to make in response to them. I also provided the Prosecutor with a copy of Mr Abdul-Rahman’s submissions.

Mr Abdul-Rahamn’s experience with the planning system

13. Since early 2013, Mr Abdul-Rahman has been the applicant for development consent on whose behalf Class 1 appeals have been made to the Court on nine occasions where there has been a deemed or actual refusal of a development application. These appeals have involved four councils (Ashfield Council; Bankstown City Council (2); Parramatta City Council and Strathfield Council (5)). In at least one instance, the development for which consent was sought from the Court was a substantial one – in a contested hearing before Smithson C (Abdul-Rahman v Strathfield Municipal Council [2016] NSWLEC 1393) consent was being sought to construct a 3-4 storey residential flat building comprising 20 apartments above two levels of basement car parking.

14. Mr Abdul-Rahman said, in the submissions written on his behalf:

… secondly, that he did not understand that what had occurred equated to a breach of the Environmental Planning and Assessment Act.

15. I am unable to accept this submission given Mr Abdul-Rahman’s extensive known experience with the planning system. This is a purely self-serving submission. It is rejected.

16. As a consequence, Mr Abdul-Rahman is not to be regarded as a person unfamiliar with, or unsophisticated about, the requirements of planning regulation in NSW generally or with local environmental plans in particular – indeed, the contrary is demonstrably the position. This is a matter to be taken into account in the necessity for specific deterrence for Mr Abdul-Rahman as later discussed.

Mr Abdul-Rahman’s submissions concerning the Council and its officers

17. During the course of his brief oral submissions, Mr Abdul-Rahman asserted that he was the victim of a conspiracy against him by the Council and unnamed officers employed by it. It was his submission that his prosecution for this offence is a manifestation of that conspiracy. It is not necessary or appropriate to reproduce the terms in which he made this assertion.

18. For reasons set out in my August decision, I was satisfied that the Council had established all the necessary elements for me to find that Mr Abdul-Rahman was guilty of the strict liability offence with which he had been charged. Indeed, despite his plea of not guilty, Mr Abdul-Rahman has never denied the foundational element of the offence with which he was charged – namely that he was responsible for the removal of the tree.

19. I observe that these proceedings have been conducted before me by the Prosecutor on a proper basis, having regard to the nature of the offence with which Mr Abdul-Rahman was charged and the burden of proof placed on the Prosecutor to demonstrate, beyond reasonable doubt, that Mr Abdul-Rahman is guilty of the offence with which he has been charged.

20. I also set out below both the Prosecutor’s submissions concerning what I should conclude about the health of the tree at the time Mr Abdul-Rahman ordered its removal and my satisfaction, beyond reasonable doubt, of what I should conclude from that evidence.

21. None of those matters provide any evidence of any conspiracy on behalf of the Council or any of its officers.

22. I reject, absolutely, this assertion made by Mr Abdul-Rahman. The assertion of improper motive by the Council or any of its officers has no evidentiary foundation in these proceedings and is to be disregarded.

The state of the tree at the time of its removal

23. As earlier observed, Mr Abdul-Rahman had asserted, at the hearing when I found him guilty of the offence, that the tree had been dead at the time of its removal. I noted his assertion in this regard, in [10] and [11] of my August decision as earlier reproduced.

24. At this sentencing hearing, Mr Abdul-Rahman’s submissions included the following assertions concerning the state of the tree at the time of its removal:

Mr Abdul-Rahman also submits that his understanding was that the tree that he authorised for removal was dead. As is noted in the judgment of the court in proceeding Burwood Council v Abdul-Rahman [2017] NSWLEC 103, Mr Abdul-Rahman had retained the services of an arborist, as Mr Abdul-Rahman has no qualifications in horticulture or arboriculture. He states that he engaged the services of Mr Abubakir Taleb who said the tree was dead and that it was permissible to remove it. Mr Abdul-Rahman relied upon the professional advice of those persons that he had engaged in authorising the removal of the tree. It is submitted that this is a further mitigating factor that should be taken into account on sentencing.

The fact that the lemon-scented gum was already dead, as was advised by the defendant's arborist, indicates that in the circumstances of this particular offence, there was no actual environmental harm that eventuated, which would be a further relevant factor on sentencing.

25. On the other hand, the Prosecutor’s written submissions addressed what the Prosecutor submitted I should conclude was the state of the tree at the time of its removal work in the following terms:

The Offender has during the defended hearing indicated that the tree was dead. There is no evidence before the Court (at the time of preparing these submissions) that the tree was dead. However, to counter such a claim, the prosecutor refers to the affidavit of Joe Lilley (6 April 2017) that refers to observations of a mature healthy tree in 2015 (Lilley April 2017 paragraphs 14, 18, 22 and 24 and JL02) and a report that was authored by himself and heritage officer Kucic in early 2016 (JL01) that referred to a photograph of the tree taken in November 2015 and depicting that it was not dead.

As at 22 September 2016 the tree was no longer seen on the land (Lilley 21). As such, an inference can be drawn that the tree was removed on or before September 2016.

The tree was physically seen on the land on 28 October 2015 at 11:58AM (McClure 6 April 2017 AM03 photographs 1, 2 and 3).

The tree depicted in photographs 1 through 3 of McClure appears healthy, large and with a good canopy.

Mr Lilley in his affidavit of April 2017 variously describes the tree as:

A mature lemon scented gum about 600mm in diameter (measured at 1.4m above ground) and about 20m tall (paragraph 14);

Healthy and of a sound structure (paragraph 22);

Taller than four meters … a crown spread of more than two meters. It also had a trunk diameter greater than 150 mm measured at a distance of 1.4 m from the ground. … a twin trunked tree, bifurcating at approximately 2.5m above ground, and the trunks were each approximately 400mm in diameter at this point (paragraph 24).

26. I have re-examined all of the evidence which was before me at the time of the August hearing. I have not confined myself to those elements of the Prosecutor’s evidence set out in the above submission extract. However, having done so, I am satisfied that what is set out in the Prosecutor's submissions as quoted above accurately and comprehensively summarises the relevant evidence on behalf of the Council concerning the health of the tree at the time of its removal.

27. It is to be observed that, at the initial hearing in August and at this sentencing hearing, Mr Abdul-Rahman has provided no evidence at all supporting his assertions as to the state of the tree at the time of its removal.

28. Mr Abdul-Rahman’s submissions concerning the health of the tree are to be rejected – they are contrary to the evidence.

29. I am satisfied that the Prosecutor’s evidence is, in the absence of any evidence whatsoever to the contrary, compellingly capable of supporting findings, at the time Mr Abdul-Rahman ordered Mr Abubakir Taleb to remove the tree, that:

1. The tree was alive at the time of its removal; and

2. At the time the relevant photographs were taken, the tree was in good health and remained so at the time of its removal.

30. I am satisfied that there can be no reasonable doubt as to the appropriateness of my making such findings and, therefore, I do so for the purposes of determining the appropriate sentence to be imposed on Mr Abdul-Rahman.

The maximum penalty for the offence

Introduction

31. The maximum penalty applicable for the conduct for which Mr Abdul-Rahman has been charged and found guilty, as at the time of its occurrence, was $500,000 (as the offending conduct is to be classified as a Tier 2 offence falling under s 125B of the EP&A Act). The maximum penalty reflects a public expression by the Parliament of the seriousness of the offence charged (Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698).

The 2015 amendments to the EP&A Act

32. In Willoughby City Council v Rahmani [2017] NSWLEC 166, I dealt with the 2015 amendments to the EP&A Act which had the effect of reducing the maximum penalty applicable to offences such as that with which Mr Abdul-Rahman has been charged from $1,100,000 to $500,000.

33. I explained, at [13] to [24], why this change did not mean that the approach to offending conduct in that case was automatically to be subject to imposition of lower penalties than those which had applied in the past for such offences. I explained why past comparable offending conduct and the penalties imposed provided a continuing, unchanged basis for consideration in determining the appropriate penalty to be imposed on offenders such as Mr Abdul-Rahman.

The statutory framework

34. The Crimes Sentencing Procedure Act 1999 (the Sentencing Procedure Act) sets out, in s 21A, a range of matters which are required to be taken into account in dealing with matters relating to the offending conduct in the circumstances of the Defendant. A limited number of those matters are engaged in these proceedings.

Mr Abdul-Rahman's subjective position

Introduction

35. I now turn to the relevant matters in s 21A of the Sentencing Procedure Act requiring to be considered.

Aggravating factors

Environmental harm

36. The tree which Mr Abdul-Rahman had removed was a healthy, mature Lemon-Scented Gum (Corymbia citriodora). It was in the front setback of his property and would have been prominent in its streetscape.

37. As a consequence, I am satisfied that it is appropriate to conclude that there was environmental harm occasioned by the removal of this tree.

38. In circumstances where there was no evidence of any arboricultural reason whatsoever to support its removal, this should be regarded as evidencing environmental harm of some significance and thus a factor of aggravation (Sentencing Procedure Act – s 21A(2)(g)).

Prior convictions

39. Mr Abdul-Rahman has two relevant prior convictions. These are (Prosecutor’s submissions after [32]):

19 May 2016 at Burwood Local Court: Convicted and filed $3000 in relation to 1 x s.125 (1) Environmental Planning and Assessment Act 1979 (relating to the removal of 9 mature trees from 2 Culdees Road Burwood Heights).

19 May 2016 at Burwood Local Court: Convicted and filed $3000 in relation to 1 x s.125 (1) Environmental Planning and Assessment Act 1979 (relating to unlawful works at 2 Culdees Road, Burwood Heights).

40. These convictions are further factors of aggravation to be taken into account in determining the appropriate starting sentence for Mr Abdul-Rahman (Sentencing Procedure Act – s 21A(2)(d)).

Mr Abdul-Rahman’s subjective factors

Good character

41. Attached to Mr Abdul-Rahman's written submissions on sentence was a reference attesting to Mr Abdul-Rahman's good character. I informed Mr Abdul-Rahman of the necessity for this to be tendered. The reference was tendered as Exhibit 1 – this occurred without objection from the Prosecutor.

42. The reference was given by Imam Shady Alsuleiman, President of United Muslims of Australia. It is clear from the terms of the reference that the author of the reference does not acknowledge that he has been made aware of the offending conduct for which Mr Abdul-Rahman has been found guilty and stands to be sentenced.

43. Conventionally, for such a reference to weigh in assistance to a defendant, it would include an element that the offending conduct had been revealed to the author and that the author had given the character assessment in full knowledge of that offending conduct. Indeed, it is impossible to know if Mr Abdul-Rahman would have been given a reference in the terms tendered if he had disclosed this prosecution and his prior convictions.

41. As that is not the position with respect to Exhibit 1, I am not satisfied that Mr Abdul-Rahman should, as a consequence, receive any benefit of being regarded as of good character (Sentencing Procedure Act – s 21A(3)(f)).

Specific deterrence for Mr Abdul-Rahman

45. Mr Abdul-Rahman has accepted that he did not have the right to remove the tree.

46. I earlier set out Mr Abdul-Rahman’s significant past experience with processes for property development and his interaction with the planning system.

47. In this regard, the Prosecutor submitted:

It is submitted that in the instant case, specific deterrence is warranted. The Offender has previously been convicted in the Local Court at Burwood in respect of environmental offences. One offence, as referred to above, involved the unlawful removal of nine trees on the property. The other offence as referred to above involved unlawful works at the property.

Further, the Offender is a person who frequently in involved in the development of property. It should be reinforced that flouting or ignoring the planning law will have ramifications.

48. Mr Abdul-Rahman’s written submissions on this point said:

As the defendant had no intention to breach the Environmental Planning and Assessment Act and in circumstances where, in good faith, he had authorised the removal of the dead tree, it would appear evident that there is not a likelihood of reoffending by the defendant.

49. Mr Abdul-Rahman’s persistent submissions that I should accept that the tree was dead, when the evidence establishes the contrary to be true, demonstrate an unwillingness to accept the true characterisation of his conduct. He has demonstrated no insight whatsoever with respect to his offending conduct. I am unable to accept that there is no likelihood of his reoffending. Indeed, if the author of these submissions had been made aware of Mr Abdul-Rahman’s prior relevant convictions, the author has chosen to ignore the relevance of that fact as a factor to be considered on the question of necessity for specific deterrence for Mr Abdul-Rahman.

50. Therefore, to reinforce Mr Abdul-Rahman's understanding of the requirement to obtain development consent in circumstances where that is mandated, unless there is a proper basis not to do so, it is appropriate that there be a significant element of specific deterrence in the sentence to be imposed (Sentencing Procedure Act – s 21A(3)(g)).

Contrition and remorse

51. Mr Abdul-Rahman had the opportunity during his oral submissions at the sentencing hearing to express genuine contrition and remorse for his offending conduct. He did not do so. Mr Abdul-Rahman’s oral submissions on sentence were brief and primarily alleged a conspiracy against him by the Council and its officers. He said, relevant to removal of the tree (Transcript 4 December, page 4, lines 29 to 40):

RESPONDENT: Your Honour I bought that property I think a few years back. I was going to make it my house to live in, that’s what I do live in and it was full of shrubs and no fences and nothing like that. I went ahead and cut a lot of the trees down in the beginning and I didn’t believe they were any protected trees.

Now the tree that the council were talking about, I got advised - some advice from outside and said the tree was dead and we’ll cut it.

Now I didn’t go to council, I probably should have asked council, but I didn’t go to council. And I took their evidence, or their advice and cut the tree down when I cut the tree down.

52. Mr Abdul-Rahman’s oral submissions persisted in asserting that the tree was dead despite the compelling evidence that it was healthy at the time he ordered its removal.

53. Mr Abdul-Rahman’s written submissions, relevantly, said:

Having become aware of the judgment of the court in proceeding Burwood Council v Abdul-Rahman [2017] NSWLEC 103, the defendant now understands that despite his belief that he was acting in good faith, his actions constitute the offence. Now having that knowledge, he is sorry for the breach. Now that he is aware that his actions constitute an offence, he is indeed sorry that he had authorised the removal of the tree.

54. As can be seen, the author of these submissions suggests that I should conclude that Mr Abdul-Rahman was acting in “good faith”. This proposition is advanced on the basis that, contrary to the evidence and my finding on it, the tree was dead.

55. I am satisfied that, to the limited extent these oral and written submissions might address whether Mr Abdul-Rahman has expressed contrition and remorse for the removal of the tree, I do not consider that these expressions are genuine. I am satisfied, having seen and heard Mr Abdul-Rahman, that his persistent assertion that the tree was dead not only demonstrates a complete lack of insight into his offending conduct but also that he has no remorse for his actions (Sentencing Procedure Act – s 21A(3)(i)).

General deterrence

56. It is also necessary to send a broader message of the importance of upholding the integrity of the planning system, generally, and of the necessity to obtain development consent when this is required (Mosman Municipal Council v Menai Excavations Pty Limited (2002) 122 LGERA 89; [2002] NSWLEC 132 at [35]).

57. Such reinforcement of the necessity to obtain development consent for tree removal, as is the breach by Mr Abdul-Rahman, is also directed to the broader public who might contemplate commissioning contractors to undertake tree removal activities without the required consent.

The s 10 Sentencing Procedure Act submission

58. The Sentencing Procedure Act contains a beneficial provision in s 10 Dismissal of charges and conditional discharge of offender. The provision, relevant to my consideration in these proceedings, is in the following terms:

10 Dismissal of charges and conditional discharge of offender

(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders:

an order directing that the relevant charge be dismissed,

an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years,

an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program.

(2) An order referred to in subsection (1) (b) may be made if the court is satisfied:

that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or

that it is expedient to release the person on a good behaviour bond.

(2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person.

(2B) ...

(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors:

the person’s character, antecedents, age, health and mental condition,

the trivial nature of the offence,

the extenuating circumstances in which the offence was committed,

any other matter that the court thinks proper to consider.

59. Mr Abdul-Rahman’s written submissions proposed:

In the circumstances outlined above, the only conclusion that could be reached is that the defendant authorised the removal of the tree on the understanding that the tree was dead. That understanding being based upon professional advice provided to him by a qualified arborist. In authorising the removal of the tree, under no circumstances did Mr Abdul-Rahman realise that consent under the Environmental Planning and Assessment Act would be required based upon the advice provided by his arborist. The defendant did not conceal the fact that he authorised the removal of the dead tree and he made such admission at an early stage, prior to any proceeding being commenced by the prosecutor. The fact that the defendant was unrepresented in the proceeding lead to him not understanding the fact that, from a technical point of view, despite the fact that he made an honest mistake, he had at law committed an offence under the Environmental Planning and Assessment Act. Had he been a lawyer or been legally represented in proceeding Burwood Council v Abdul-Rahman [2017] NSWLEC 103, he may well have been advised not only that his early admission was positive but that the only conclusion that would be drawn by a judge of the court was that he was guilty of the offence. The defendant should not be penalised for the fact that he could not afford legal representation in the proceeding.

In all of the above circumstances, it would be submitted on the part of the defendant that the court grant the defendant the benefit of a section 10 pursuant to the Crimes (Sentencing Procedure) Act 1999 such that no conviction is recorded for the offence. Given the defendant's limited financial means, it is also submitted on the part of the defendant that any fine be at the very low end of the scale if one is to be applied by the court.

60. The first proposition, that Mr Abdul-Rahman did not “realise that consent under the Environmental Planning and Assessment Act would be required based upon the advice provided by his arborist” is rejected for two reasons. First, Mr Abdul-Rahman’s persistent assertion that the tree was dead is entirely unsupported by the evidence. Second, Mr Abdul-Rahman’s necessarily inferred familiarity with the planning system means I must conclude that he simply decided to have the healthy tree removed and had this done despite what might be the requirements for consent for this to occur.

61. During the course of the sentencing hearing, the Prosecutor commenced addressing this submission. I cut off this section of his submissions, saying (Transcript 4 December, page 2 lines 30 to 34):

SHNEIDER: Look only in respect of s 10, dealing with the matter under s 10 of the Crimes (Sentencing Procedure) Act. What the Court would have to be minded of I suppose--

HIS HONOUR: You do not need to address me on that point.

62. To suggest, in light of:

1. Mr Abdul-Rahman’s persistent assertion that the tree was dead in circumstances where I am satisfied, beyond reasonable doubt, that the tree was a healthy, mature specimen;

2. The complete absence of any mitigating factors in Mr Abdul-Rahman’s favour; and

3. Mr Abdul-Rahman’s extensive experience with the planning system,

that Mr Abdul-Rahman should be given the benefit of being dealt with pursuant to s 10 of the Sentencing Procedure Act is risible and was rejected out of hand by me.

Determining an appropriate penalty

63. The appropriate process to be undertaken in sentencing Mr Abdul-Rahman is one which requires me to perform an instinctive synthesis of all relevant factors of his offending, including aggravating factors, in order to determine what might be an appropriate starting penalty to punish Mr Abdul-Rahman's offending conduct (Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25). This instinctive synthesis requires me to have regard to whereabouts within a range of seriousness the offending conduct should be regarded as falling, having regard to the maximum penalty of $500,000 for such offences.

64. Camilleri's Stock Feeds (also at [698]) confirmed that:

The task of a court is to assess the relative seriousness of the offender’s particular offence in relation to a worst case for which the maximum penalty is provided. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the scale of penalty set by the legislature from zero to the maximum.

65. The upper limit for the range within which the sentence for each offence falls must not exceed that which is proportionate to the gravity of the offence in light of its objective circumstances (Veen v The Queen (No 2) 164 CLR 465; [1988] HCA 14). The lower limit is fixed to permit allowance for subjective factors, as those relevant to the offender cannot produce a sentence that fails to reflect the offences’ objective seriousness.

66. It is also appropriate to have specific regard to the two factors of aggravation earlier set out. These warrant imposition of a greater penalty than might have arisen had they been absent.

67. In undertaking this instinctive synthesis of the relevant factors, in order to derive an appropriate starting sentence for Mr Abdul-Rahman, I have concluded that his offending conduct is to be regarded as being toward (but not at) the bottom of the mid-range for such offences. A description of that nature, of course, is not a matter of mathematical precision. I have concluded that the singular factors which warrant consideration in assessing what is the appropriate starting penalty for Mr Abdul-Rahman are:

1. The tree that was removed was a mature tree of significant size and canopy spread;

2. The tree was in good health at the time Mr Abdul-Rahman ordered its removal;

3. As the tree was in the front setback of Mr Abdul-Rahman’s property, the tree would have made a positive contribution to the streetscape of the heritage conservation area within which it was growing;

4. Retention of the tree was a requirement of the Council’s Local Environmental Plan unless consent was given by the Council for its removal;

5. Mr Abdul-Rahman has two relevant prior convictions; and

6. Mr Abdul-Rahman has had extensive experience with (and, it is reasonable to infer, knowledge of) the planning system.

68. Mr Shneider provided an analysed list of fifteen cases (extracted from the decision of Preston CJ in Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349; [2006] NSWLEC 47) where penalties had been imposed by this Court for the removal of trees without the obtaining of the appropriate approval from the relevant local government authority or in breach of a condition of development consent.

69. These cases, he submitted, should provide guidance as to the range within which I might regard Mr Abdul-Rahman’s offending conduct for the purpose of assessing the appropriate penalty to be imposed on Mr Abdul-Rahman.

70. However, these cited cases are dated. It is permissible to conclude that contemporary standards require historical sentencing patterns to be reconsidered. As Preston CJ observed in Chief Executive of the Office of Environment and Heritage v Cory Ian Turnbull [2017] NSWLEC 140 at [240]:

Provision needs also to be made to account for views changing over time about the sentence that should be imposed in particular cases. In Director of Public Prosecutions v Dalgliesh (a pseudonym) at [51] the High Court quoted with approval the observations in Director of Public Prosecutions (VIC) v OJA (2007) 172 A Crim R 181 at 196 [30]-[31]:

“‘[T]he need to have regard to current sentencing practices does not mean that the measures of manifest excessiveness and manifest inadequacy are capped and collared by the highest and lowest sentences for similar offences hitherto imposed. …

[I]t should not be thought that the statutory requirement to have regard to current sentencing practices forecloses the possibility of an increase or decrease in the level of sentences for particular kinds of offences. Over time, views may change about the length of sentence which should be imposed in particular cases and, when that occurs, the notions of manifest excessiveness and manifest inadequacy will be affected. … One must allow for the possibility that sentences to this point have simply been too low.’”

71. The sentences cited in the 2006 decision in Cameron v Eurobodalla Shire Council (a decision dealing with a maximum penalty of $110,000) are dated. The starting penalties in Burwood Council v Jarvest Pty Ltd [2011] NSWLEC 109 ($60,000); Ku-ring-gai Council v Edgar [2017] NSWLEC 49 ($45,000) and Willoughby City Council v Rahmani ($90,000) perhaps provide some better contemporary guidance of what might be appropriate penalty benchmarks before factors of aggravation are triggered to raise any initial potentially appropriate penalty.

72. Under these circumstances and having regard to the two aggravating factors, I consider that a starting penalty of $50,000 is appropriate and is not so above the amounts imposed for lesser offending conduct to be unreasonable.

Mr Abdul-Rahman’s financial capacity to pay a penalty

73. The potential to reduce what might otherwise be the applicable penalty when assessing the quantum of fine to be imposed on an offender arises from s 6 of the Fines Act 1996 (the Fines Act), a provision which reads:

Consideration of accused’s means to pay

In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider:

such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and

such other matters as, in the opinion of the court, are relevant to the fixing of that amount.

74. In his written submissions, Mr Abdul-Rahman addressed the question of his capacity to pay a financial penalty. These elements of his submissions was in the following terms:

Mr Abdul-Rahman is currently not employed but seeks employment and does not have the financial means to pay any fine that may arise if a penalty is ordered by the court. Furthermore, his prospects of obtaining employment would be severely diminished if a criminal conviction was recorded against him.

and

… Given the defendant's limited financial means, it is also submitted on the part of the defendant that any fine be at the very low end of the scale if one is to be applied by the court.

75. As earlier noted, the Prosecutor’s submissions were made in anticipation of what might be said on behalf of Mr Abdul-Rahman. The Prosecutor’s submissions, understandably, did not address this aspect of the Defendant’s submissions given the complete absence of evidence from Mr Abdul-Rahman on this point.

76. In a number of sentencing judgements during 2017, I have needed to address submissions concerning whether or not it would be appropriate to exercise the discretion available pursuant to s 6 of the Fines Act to reduce the otherwise appropriate penalty to be imposed on a defendant with such reduction to be contemplated in light of the defendant’s financial circumstances. In each instance, specific written and/or oral evidence was given which was able to be tested to ascertain whether there was any basis to contemplate making such a reduction (Wollongong City Council v Eldridge [2017] NSWLEC 35; Ku-ring-gai Council v Edgar; Willoughby City Council v Rahmani).

77. In these present proceedings, I have no evidence whatsoever from Mr Abdul-Rahman concerning his financial circumstances. Bare assertions contained in the submissions written on his behalf provide absolutely no basis upon which I could contemplate any reduction from the penalty which is otherwise appropriate to be imposed on him for his offending conduct.

The option to order planting a replacement tree

78. As with the new three tier penalty structure, the provisions of Part 8.3 of the Protection of the Environment Operations Act 1997 (the POEO Act) have been made available to the Court for sentencing purposes for offences of the nature of which Mr Abdul-Rahman was found guilty by me last August. These provisions are made available for sentencing for offences against the EP&A Act by virtue of s 126 of the EP&A Act, a provision which expressly mandates the availability for sentencing of the full range of powers under Part 8.3 of the POEO Act when sentencing for offences committed in breach of the EP&A Act.

79. These powers would enable me to order that Mr Abdul-Rahman plant a replacement tree as a compensatory measure for the removal of the mature Lemon-Scented Gum for which removal he had engaged Mr Taleb. I have concluded that it would not be appropriate, despite the availability of the power, to make such an order. I have so concluded because the Prosecutor has not sought such an order.

80. As a consequence, Mr Abdul-Rahman has not had notice of the possibility of the imposition of such a requirement and, therefore, has had no opportunity to make submissions concerning this possible eventuality.

78. Had Mr Abdul-Rahman been legally represented and I had wished to contemplate the making of such an order, it would have been appropriate to raise that issue with his legal representative at the sentencing hearing; provide an opportunity for instructions to be given to that representative; and deal with it on the basis of such submissions as might have been made. However, in circumstances where Mr Abdul-Rahman was self-represented, it was not possible to follow that course and, therefore, as a result, I do not propose to impose a requirement for the planting of a replacement tree, no matter how appropriate such a course would otherwise have been.

No discount from Mr Abdul-Rahman’s starting penalty

82. Having concluded that the appropriate starting penalty is $50,000, it is then necessary to consider what discount, if any, should be given after having regard to Mr Abdul-Rahman’s subjective factors.

83. Given that I have been unable to conclude that there are any subjective factors weighing in Mr Abdul-Rahman’s favour, I am satisfied that it is inappropriate to apply any discount to my initial determination of the appropriate starting penalty. The consequence of this is that the fine to be imposed on Mr Abdul-Rahman is $50,000.

Orders

84. It follows from that which I have set out above, that the appropriate orders of the Court are:

1. Pursuant to s 125(1) of the Environmental Planning and Assessment Act 1979, Omar Abdul-Rahman (the Defendant) is convicted of the offence that, contrary to section 76A(1)(a) of that Act, he carried out development in circumstances where consent was required to be obtained for the development and no consent was sought prior to carrying out the development;

2. The Defendant is fined $50,000; and

3. The Defendant is ordered to pay, to the Prosecutor, the Prosecutor's costs as agreed or assessed.

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Decision last updated: 13 December 2017