Cameron v Eurobodalla Shire Council

Case •

[2006] NSWLEC 47

•

02/13/2006

No judgment structure available for this case.
Reported Decision: (2006) 146 LGERA 349

Land and Environment Court


of New South Wales


CITATION: Cameron v Eurobodalla Shire Council [2006] NSWLEC 47
This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:

APPELLANT
Scott Cameron

RESPONDENT
Eurobodalla Shire Council
FILE NUMBER(S): 60010 of 2005
CORAM: Preston CJ
KEY ISSUES:

Appeal :- appeal against severity of sentence of Local Court - appeal by way of rehearing - maximum penalty for offence - distinguished from jurisdictional limit of Local Court and amount of penalty notice - - guilty plea - appropriate sentence - offence committed on public land - actions resulting in offence committed knowingly and deliberately - actions taken to gain aesthetic and financial benefits - need for general deterrence - prevalence of offence - guilty plea and lack of prior criminality the only significant mitigating circumstances - pattern of sentencing for offence of kind committed - sentence given by Local Court was appropriate.

Environmental Offences:- carrying out of development without development consent - lopping of tree without consent - guilty plea - appropriate sentence - offence committed on public land - actions resulting in offence committed knowingly and deliberately - actions taken to gain aesthetic and financial benefits - need for general deterrence - prevalence of offence - guilty plea and lack of prior criminality the only significant mitigating circumstances
LEGISLATION CITED: Crimes (Local Courts Appeal and Review) Act 2001, s 37(1), s 37(2)
Criminal Appeal Act 1912, s 5AA
Criminal (Sentencing Procedure) Act 1999, s 21A, s 22, s 23
Environmental Planning and Assessment Act 1979, s 76A, s 125(1), s 126, s 127(3), s 127A
Fines Act 1996, s 20, s 35, s 36, s 37
Land and Environment Court Act, 1979, s 21A
Local Government Act 1991, s 694(1)
CASES CITED: Active Tree Services Pty Ltd v Ku-ring-gai Municipal Council [2005] NSWLEC 431 (9 August 2005);
Axer Pty Limited v Environment Protection Authority (1993) 113 LGERA 356;
Bentley v BGP Properties Pty Limited [2005] NSWLEC 34 (13 February 2006);
Blue Mountains Conservation Society Inc v Director General of National Parks and Wildlife (2004) 133 LGERA 406;
Bowen v Willoughby City Council [2001] NSWLEC 274 (4 December 2001);
Byron Shire Council v Fletcher [2005] NSWLEC 706 (25 November 2005);
Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1992) 32 NSWLR 683;
Canterbury Municiapl Council v Saad (2001) 12 LGERA 429;
Capral Aluminium Ltd v Workcover Authority of NSW (2000) 49 NSWLR 610;
Carlino v Leichhardt Municipal Council [2005] NSWLEC 198 (27 April 2005);
City of Canada Bay Council v Bird (No. 2) [2003] NSWLEC 152 (24 June 2003);
Cooper v Coffs Harbour Council (1997) 97 LGERA 125;
Council of Camden v Tax (2004) 137 LGERA 368;
Council of the City of Gosford v Tauszik [2005] NSWLEC 266 (22 April 2005);
Director General National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 (27 September 2002);
Ebarcarb Pty Limited v Environment Protection Authority [2003] NSWLEC 411 (2 December 2003);
Environment Protection Authority v Hy-Tec Industries Pty Ltd (2002) 123 LGERA 246;
Holroyd City Council v Skyton Developments Pty Limited (2002) 119 LGERA 225;
Hornsby Shire Council v Khoury [2003] NSWLEC 83 (25 October 2002);
Hornsby Shire Council v Moit [2001] NSWLEC 50 (25 February 2001 revised 28 March 2001);
Hornsby Shire Council v Mouawad [2002] NSWLEC 191 (31 October 2002);
Ku-ring-gai Municipal Council v Gumland Property Holdings Pty Ltd [2001] NSWLEC 39 (13 December 2000);
Latoudis v Casey (1990) 170 CLR 534;
Lowe v The Queen (1994) 154 CLR 606;
Mosman Municipal Council v Menai Excavations Pty Limited (2002) 122 LGERA 89;
Murray (Kellie Marie) NSWCCA, unreported (29 October 1997);
Newcastle City Council v Pepperwood Ridge Pty Limited (2004) 132 LGERA 388;
Packham v Minister for the Environment (1993) 31 NSWLR 65;
R v Cuthbert (1967) 86 WN (pt 1) (NSW) 272;
R v Doan (2000) 50 NSWLLR 115;
R v Dodd (1991) 57 A Crim R 349;
R v Gallagher (1991) 23 NSWLR 220;
R v Hayes [1984] NSWLR 740;
R v Henry (1999) 46 NSWLR 346;
R v Morabito (1992) 62 A Crim R 82;
R v Oliver (1980) 7 A Crim R 174;
R v Power [1999] NSWCCA 25 (5 March 1999);
R v Stahl [1999] NSWCCA 160 (26 May 1999);
R v Sutton [2004] NSWCCA 225 (6 July 2004);
R v Thomson; R v Houlton (2000) 49 NSWLR 383;
R v Visconti [1982] 2 NSWLR 104;
Ristevski v Hurstville City Council (2003) NSWLEC 409 (26 November 2003);
Ryde City Council v Calleija (1998) 99 LGERA 360;
Ryde City Council v Xu (2003) NSWLEC 146 (2 July 2003);
Sutherland Shire Council v Nustas [2004] NSWLEC 608 (3 November 2004);
Sutherland Shire Council v Turner [2004] NSWLEC 774 (18 June 2004);
Sutherland Shire Council v Upper Class Development Pty Limited [2003] NSWLEC 414 (11 December 2004);
Veen v R (No. 1) (1979) 143 CLR 458;
Veen v R (No. 2) (1988) 164 CLR 465;
Willoughby City Council v Bowen (1996) 92 LGERA 410;
Willoughby City Council v Minister Administering the National Parks and Wildlife Act (1992) 78 LGERA 19;
Woollahra Municipal Council v Minister for the Environment (1991) 23 NSWLR 710
DATES OF HEARING: 06/02/2006
 
DATE OF JUDGMENT: 
02/13/2006
LEGAL REPRESENTATIVES: APPELLANT
Mr E Y Ozen (barrister)
SOLICITOR
Robbins Watson Solicitors

RESPONDENT
Mr A S Warren (solicitor)
SOLICITOR
Andrew Warren Associates


JUDGMENT:

        THE LAND AND
        ENVIRONMENT COURT
        OF NEW SOUTH WALES

        PRESTON CJ

        MONDAY 13 FEBRUARY 2006

        60010 OF 2005

        SCOTT CAMERON V EUROBODALLA SHIRE COUNCIL

        JUDGMENT

1 HIS HONOUR: Water views have always been a sought after feature of real property. Property with a water view is more valuable than property without. The more extensive the water views, the more valuable the property.

2 Hence, property owners desire to capture or improve water views from their properties. This might involve extending or erecting a building, such as a dwelling house, to capture or improve water views. It may also involve removal or reduction of obstructions, such as trees and other vegetation, which are blocking or obscuring water views.

3 The taking of any such action to capture or improve water views is, however, invariably regulated by statute. The statutory regulation involves a prohibition on the taking of such action unless and until prior consent has been obtained from a competent regulatory authority. Such a regulatory scheme is essential to achieve the proper management, development and conservation of the natural and built environments.

4 Sometimes, the desire of a property owner to capture or improve water views, with the concomitant benefits, overcomes the owner’s self-control to comply with this regulatory scheme. Action is taken without seeking and obtaining the requisite consent of the regulatory authority. The law is broken.

5 This is what happened on a late spring afternoon in Bateman’s Bay. The appellant, Mr Scott Cameron, owned residential property next to a waterfront council reserve. He engaged a contractor to remove a dead tree and branches of live trees at the rear of his property. The trees were obscuring water views from the property. The property had been listed for sale on the market for some months before the incident. The removal of the vegetation would improve the water views from the property. The appellant, as the owner, would benefit aesthetically and financially.

6 However, the appellant failed to seek or obtain the necessary consent from the relevant regulatory authority, Eurobodalla Shire Council, before taking the action.

7 For this breach of the law, the appellant was served by the respondent with a penalty notice under s 127A of the Environmental Planning and Assessment Act 1979 (NSW) (“the EPA Act”) for an offence of carrying out development without consent pursuant to s 125(1) and s 76A of the EPA Act.

8 The appellant elected to have the matter determined by a court rather than pay the amount of the penalty specified in the penalty notice ($600). The matter was heard in the Local Court at Bateman’s Bay. At the third mention of the matter, the appellant pleaded guilty. The matter was set down for hearing on disputed facts.

9 On 29 August 2005, the Local Court convicted the appellant as charged and sentenced him to pay a fine of $10,000 and court costs of $65.00, and ordered him to pay the prosecutor’s costs in the sum of $2,980.00.

Appeal against the sentence

10 The appellant has appealed against the sentence. The appeal is made to this Court as of right under s 31(1) of the Crimes (Local Courts Appeal and Review) Act 2001 (NSW) (“the Review Act”). The appeal was lodged on 21 September 2005, within the 28 day period after the sentence was imposed that an appeal is required to be lodged by: s 31(2)(a) of the Review Act. This Court has jurisdiction in Class 6 of its jurisdiction to hear and dispose of the appeal: s 21A of the Land and Environment Court Act 1979 (NSW).

11 The appeal is to be dealt with by way of rehearing on the basis of certified transcripts of evidence given in the original Local Court: s 37(1) of the Review Act. Fresh evidence may be given, but only by leave of the Court if the Court is satisfied that it is in the interest of justice that fresh evidence be given: s 37(2) of the Review Act.

Appeal is by way of rehearing

12 The nature of the rehearing required by s 37(1) of the Review Act is akin to the type of appeal contained in s 5AA of the Criminal Appeal Act 1912 prior to the amendment of s 5AA in 2000. That appeal was described by the Court of Criminal Appeal in Cooper v Coffs Harbour Council (1997) 97 LGERA 125 at 127-128 as follows:

            “…an appeal under s 5AA is not restricted to a determination of whether a decision of the Court below was infected with error. It is a rehearing on the evidence given before the trial court [ Criminal Appeal Act 1912 (NSW) s 5AA(3)].
            The width of the Courts’ jurisdiction when determining an appeal under this section is evidenced by s 5AA(4) which permits the Court to vacate the determination made by the trial court and to make any determination that the trial court could have made on the evidence heard on appeal. The Court is not concerned, as it would be in an ordinary appeal under s 5 of the Criminal Appeal Act , with whether the original determination was unsafe and unsatisfactory but whether the Court is independently of the same view as the trial court that the offence has been made out [ NSW Sugar Milling Cooperative Ltd v Environment Protection Authority (1992) 59 A Crim R 6].
            The nature of the jurisdiction of this Court on an appeal under s 5AB was considered in Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority [(1992) 32 NSWLR 683]. It was held that an appeal under s 5AA was not a de novo rehearing but the Court was to consider the evidence before the trial court, together with any additional or substituted evidence admitted on the appeal, and resolve for itself afresh the ultimate issue for determination [(1993) 32 NSWLR 683 at 692].
            Shortly after the decision in Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority [(1992) 32 NSWLR 683] was delivered, s 5AA was amended by substituting a recasting of subs 3 [footnote omitted] and the insertion of subs 3A [footnote omitted]. These amendments, however, did no more than confirm the correctness of that decision. Subsections 3 and 3A of s 5AA now make it clear that an appeal under the section is to be determined on the evidence before the trial unless leave is given by the Court for fresh, additional or substituted evidence to be adduced.
            Although this Court is concerned primarily to redetermine the charge on the evidence before the trial court, it does not follow that the hearing of the appeal is limited only to a review of that evidence even if no other evidence is adduced on the hearing of the appeal. For example, on an appeal by way of rehearing, the appeal court considers the law as it applies at the time of the rehearing [ Turnbull v NSW Medical Board [1976] 2 NSWLR 281 at 297-298]. The court conducting the rehearing can also, where necessary to redetermine the matter on the evidence, apply the procedural provisions which operated in the trial court. As Hunt J (as he then was) said in Huntley Colliery Pty Ltd v State Pollution Control Commission [unreported, Court of Criminal Appeal, NSW, 5 June 1991], “the appeal is on almost all fours with an appeal from a decision of a Magistrate to the District Court” [an appeal from a Magistrate to the District Court is a hearing de novo in which there is a completely new trial wherein the prosecutor must begin again: Ex parte Day : R vCrampton (1943) 43 SR (NSW) 349 at 351; R v Longshaw (1990) 20 NSWLR 554 at 559-561]. This statement was applied in Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority [(1992) 32 NSWLR 683 at 690F]. The difference in the nature of an appeal to this Court and an appeal from a Magistrate to the District Court, is that an appeal under s 5AA is not a new hearing in which the prosecutor is required to lead the evidence to support the charge afresh [ Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority [(1992) 32 NSWLR 683 at 690G].”

The evidence on the appeal

13 The appeal proceeded on certified transcripts of evidence, being the transcripts of the hearings in the Local Court on 18 July, 19 August and 29 August 2005, the judgment of Magistrate D Heilpern delivered on 29 August 2005, the Statement of Agreed Facts dated 2 May 2005 tendered at the hearing before the Local Court, the Statement of Mr Terry Wheatley (an employee of Eurobodalla Shire Council) and the Statement of Mr Peter Ward (the arborist engaged by the appellant to remove and lop the trees).

14 The appellant also sought leave under s 37(2) of the Review Act to give fresh evidence, first, in the form of two photographs taken on 1 February 2006 showing the tree that had been lopped and that was the subject of the offence and, secondly, oral evidence of the appellant, Mr Cameron, to identify the tree in the photographs. The respondent did not oppose leave being granted by the Court. The appellant submitted that it was in the interests of justice that this fresh evidence be given because it was relevant to the sentencing consideration of the environmental harm caused by the commission of the offence. In these circumstances, I granted leave to the appellant to give that fresh evidence. The two photographs were tendered and Mr Cameron gave evidence identifying and marking the tree that had been lopped in the photographs.

The incident

15 The appellant owns a residential property at 29 Penthouse Place, North Bateman’s Bay. A dwelling house is erected on the property. At the rear of the property, and separating the property from the water, is a council reserve. The council reserve is situated between Penthouse Place and Wray Street, North Bateman’s Bay.

16 There are water views from the balcony of the dwelling house on the appellant’s property. The tree that was lopped and is the subject of the offence is in direct line of sight from the dwelling house to the water and obscures in part the view from the property to the water.

17 The appellant placed the property for sale on the market in June 2004 and it remained on the market until early in 2005 when it was taken off the market without being sold.

18 The appellant wished to remove and lop vegetation behind his property and his neighbour’s property. He spoke to a councillor of Eurobodalla Shire Council, Councillor Rob Pollock. Councillor Pollock spoke to an employee of the Council, Mr Terry Wheatley. Mr Wheatley described his occupation as Team Leader, Parks at the Council. Mr Wheatley gave evidence of his discussions with the appellant:

            “I went to 29 Penthouse Place with Scott Cameron on the 11.11.04 to have a look at some trees on council reserve after requests from Councillor Rob Pollock. After looking at the trees, I told Scott that he could remove the old dead tree and three small wattles, but not to touch the gum trees. I did not know that I had to fill out a form and give it to Scott Cameron, on what trees could be removed”.

19 The appellant engaged Eurobodalla Tree Services to remove and lop trees at the rear of his property and his neighbours’ properties. The work was carried out on 24 November 2004.

20 Mr Peter Ward of Eurobodalla Tree Services described the work the appellant engaged the firm to do in his statement of evidence as follows:

            “We lopped 1 branch of a peppercorn tree on his neighbour’s property and 1 limb off an elm also on his neighbour’s property. We then cut from the ground one dead willow which was on the boundary of private property and the council reserve. Mr Cameron asked us to remove a couple of branches from a small spotted gum stating he had been given approval to lop 10% of the tree by a council official. As my climber was ascending the tree John Gomez from the Council Rangers came onto the site and asked us to cease what we were doing”.

21 Mr Gomez was an environmental ranger with Eurobodalla Shire Council. Mr Gomez attended the property on 24 November 2004 after receiving a complaint that trees were being cut down. Magistrate Heilpern summarised Mr Gomez’s evidence in the judgment. The appellant did not contest these findings in relation to Mr Gomez’s evidence:

            “2 The defendant had his water-view house on the market for some months prior to the incident. In front of his house is a large gum tree. John Gomez, environmental ranger for the council attended at the property on 24 November 2004 having been called out to investigate a report of trees being cut down. Upon arrival has saw and photographed an employee of Eurobodalla Tree Services about 15 metres up a live gum tree, which was 20 metres tall. He was removing tree branches with a chain saw. Mr Cameron was spoken to shortly afterwards on site where he claimed he had permission to remove the trees. The trees were on a council reserve and no appropriate council consent was sought or obtained for the removal of the branches. Seven to ten branches had been cut from the reserve.
            3 Mr Gomez made a notebook entry of his conversation regarding which he was not cross-examined at the disputed facts hearing. Part of that conversation is reproduced below (with spelling corrected)
                Gomez: Have you documents from Council for consent to remove those trees?
                Def: No, but I spoke to Rob Pollock who said it would be OK, then he put me onto Terry Wheatley who told me I could do it too.
                Gomez: So you have no paperwork indicating you’re allowed?
            Def: No. I told you they said it’s OK.

Gomez: What is the reason for the removal?

                Def: It’s a bloody eye-sore and I’m cleaning it up.
            Gomez: Do you realize it is in a council reserve?
                Def: Yes. Who cares? It’s an eye-sore and I’m going to get rid of this.
                There is then some irrelevant conversation before the following exchange takes place.
                Gomez: The tree that that person was up is green. It looks like a spotted gum. Did you ask them to cut that down?
            Def: Yes. I don’t want it there.
            Gomez: But it’s not dead?
                Def: I don’t care. I’m allowed to do it so you can go and sort out your shit and leave us alone.
            4 The photograph taken by Mr Gomez at the time clearly and uncontrovertibly shows a man up a live gum tree”: paras 2-4 of the judgment.

The offence provisions

22 Section 76A(1) of the EPA Act provides:

            “If an environmental planning instrument provides that the specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:
            (a) such a consent has been obtained and is in force; and
            (b) the development is carried out in accordance with the consent and the instrument”.

23 In this case, the relevant environmental planning instrument for the local government area of Eurobodalla Shire provides for the making of a tree preservation order. A tree preservation order has in fact been made by the Council. The tree preservation order prohibits, inter alia, the lopping of trees covered by the tree preservation order (which includes gum trees) without development consent.

24 A failure to comply with the tree preservation order is a failure to comply with environmental planning instrument, which in turn is a failure to comply with s 76A(1) of the EPA Act.

25 A failure to comply with s 76A(1) of the EPA Act is an offence against the Act. Section 125(1) of the EPA Act provides:

            “Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Director-General, a Council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing is if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against the direction or prohibition shall be guilty of an offence against this Act”.

Penalty notice provisions

26 A penalty notice may be issued for certain offences against the EPA Act. Section 127A provides, so far as it relevant:

            “(1) An authorised person may serve a penalty notice on a person if it appears to the authorised person that the person has committed an offence against this Act or the regulations, being an offence prescribed by the regulations.
            (2) A penalty notice is a notice to the effect that, if the person served does not wish to have the matter determined by a court, the person may pay, within the time and to the person specified in the notice, the amount of penalty prescribed by the regulations for the offence if dealt with under this section.
            (4) If the amount of penalty prescribed for an alleged offence is paid under this section, no person is liable to any further proceedings for the alleged offence”.

27 The Environmental Planning and Assessment Regulation 2000 prescribes an offence against s 125(1) of the EPA Act in relation to contravention of s 76A(1) of the EPA Act to be a penalty notice offence for the purposes of s 127A(1): reg 284 and Schedule 5. The prescribed penalty is $600: Schedule 5.

28 Section 20 of the Fines Act 1996 (NSW) (“the Fines Act”) provides:

            “(1) A penalty notice is a notice referred to in subsection (2) to the effect that the person to whom it is directed has committed a specified offence and that, if the person does not wish to have the matter dealt with by a court, the person may pay the specified amount for the offence to a specified person within a specified time.
            (2) A penalty notice for the purposes of this Act is:
                (a) A notice issued under any of the statutory provisions set out in Schedule 1…
            (3) A notice is not a penalty notice for the purpose of this Act unless it is of a kind referred to in subsection (2)”.

29 Schedule 1 of the Fines Act specifies Section 127A of the EPA Act to be a statutory provision under which penalty notices may be issued for the purposes of s 20(2) of the Fines Act. Accordingly, a notice issued under s 127A of the EPA Act is a penalty notice for the purposes of the Fines Act.

30 Section 35 of the Fines Act provides:

            “A person alleged to have committed or to be guilty of the offence to which a penalty notice relates has the right to elect to have the matter dealt with by a court instead of under this Part”.

31 Section 36 states the means by which a person may elect to have the matter dealt with by a court.

32 Section 37 provides:

            “If a person duly elects to have the matter dealt with by a court, proceedings against the person in respect of the offence may be taken as if a penalty notice or a penalty reminder notice had not been issued”.

Maximum penalty for the offence

33 The maximum penalty for an offence against the EPA Act is 10,000 penalty units or $1,100,000: s 126(1) of EPA Act. A penalty unit is equal to $110.00: s 17 of Crimes (Sentencing Procedure) Act 1999.

34 However, because the appellant elected to have the matter dealt with in court, and this occurred in the Local Court, there was a jurisdictional limit on the amount of penalty imposed by the Local Court of 1,000 penalty units or $110,000: see s 127(3) of the EPA Act.

35 The fact that a penalty issue was originally issued in the amount of $600.00 was no longer of relevance once the appellant elected to have the matter dealt with in court. The penalty notice amount is not the penalty to which a person guilty of an offence against the Act is liable under s 126(1) of the EPA Act or the “maximum monetary penalty” that the Local Court may impose in respect of an offence brought in the Local Court under s 127(3) of the EPA Act: see Ebarcarb Pty Limited v Environment Protection Authority [2003] NSWLEC 411 (2 December 2003), Talbot J at [9] and Sutherland Shire Council v Upper Class Development Pty Limited [2003] NSWLEC 414 (11 December 2004), Pain J at [37].

36 The maximum penalty for an offence against the Act is $1,100,000, notwithstanding the jurisdictional limit is $110,000 if the proceedings are brought in the Local Court. In R v Doan (2000) 50 NSWLLR 115 at 123, Grove J with whom Spigelman CJ and Kirby J agreed, stated that a statutory provision imposing a ceiling on the maximum sentence that may be imposed by the Local Court is:

            “…a jurisdictional maximum and not a maximum penalty for any offence triable within that jurisdiction. In other words, where the maximum applicable penalty is lower because the charge has been prosecuted within the limited summary jurisdiction of the Local Court, that court should impose a penalty reflecting the objective seriousness of the offence, tempered if appropriate by subjective circumstances, taking care only not to exceed the maximum jurisdictional limit”. See also Ebarcarb Pty Limited v Environment Protection Authority [2003] NSWLEC 411 (2 December 2003), Talbot J at [9] –[11] and Carlino v Leichhardt Municipal Council [2005] NSWLEC 198 (27 April 2005), Lloyd J at [25]-[26].

Sentence imposed by the Local Court

37 The Local Court determined that the appropriate sentence was a fine in the amount of $10,000. In arriving at this amount, Magistrate Heilpern considered both the objective gravity and circumstances of the offence and the subjective circumstances of the defendant.

38 In relation to the objective circumstances of the offence, Magistrate Heilpern found, inter alia:


        (a) The reason for causing the work to be carried out was to benefit the appellant aesthetically and financially. Magistrate Heilpern found:
            “17. As to the issue of the house being for sale, photographs were tendered – Exhibit 2 and 3. What is completely clear from this evidence is that the tree in question affects the view of the defendant’s property. It was in his words an “eye-sore”. That is why he was cutting it. Any other explanation is fanciful and unacceptable. The fact that the property was for sale increases the motive for improving the water view. To suggest that the branches had little impact is not accepted and any contention that the defendant could have made a more substantial difference by cutting the whole tree down is not relevant. It is a question of degree. In my view, the fact that the house was for sale, per se , does not aggravate the offence. Whether the offence was motivated by greed for a better view, or greed for more financial gain is neither here nor there – it is still an offence of greed where a private individual puts his own interests above those of the community, and breaches the planning laws by not allowing a proper assessment to be completed prior to an irreversible tree lopping exercise.
            18. All the photographic evidence shows that the tree affected the view of the defendant’s house to a significant degree. In his evidence the defendant conceded that it was “a large tree directly in the line of sight of my residence”.
            21. In my view that is not correct. This was an offence of greed. There were more than “a couple” of branches. The defendant was attempting to improve his view to the detriment of the rest of the community’s enjoyment of the environment. This is a classic case of where a person with water views puts his financial or aesthetic needs above all others”.

        (b) The appellant sought to evade responsibility for the commission of the offence, lied to persons including the investigating officer of the Council, and was non-cooperative. Magistrate Heilpern found:
            “22. The defendant’s true colours are shown in his immediate response. He sought to rely on approval from a councillor and another council employee when challenged. He tried to bully Mr Gomez. He did not care that the tree was alive or that it was on a council reserve. He stated that he had permission to do the work when demonstrably and uncontrovertibly that was not the case. He was specifically told by Wheatley not to touch the gum trees”.


        (c) The extent of the damage was not limited, notwithstanding that the tree was not destroyed. Magistrate Heilpern found that there were more “than a couple of branches” cut: paragraph 21 of judgment. Indeed seven to ten branches had been cut: paragraph 2 of the judgment. The cutting of the branches did have an impact by improving the water view: paragraph 17 and 18 of the judgment.

        (d) The tree was located in a public reserve. Magistrate Heilpern found:
            “23. This offence is further aggravated by the fact that the trees were on public land. Interference with trees in parks, reserves and other public places is of itself more serious than on private land. In this case, the effect was not just to improve the view for the defendant but were this offence to become rampant, the view from the river would no longer be of trees and shrubbery but of bricks and tiles”.

        (e) The prevalence of the offence of lopping or felling of trees to improve views. Magistrate Heilpern found:
            “24. This area suffers only a little from the kind of wanton vandalism that leaves buildings defaced with the graffiti, windows smashed and facilities ruined. On the other hand, the lopping or felling of trees to improve views is in plague proportion. On any part of this stunning coastline one can see trees poisoned, diminished or removed to satisfy the selfish desires of those with water-view property without seeking or obtaining approval. Council has tried publicity campaigns, blocking penalty screens and now prosecutions”.
            See also paragraph 23 of judgment and paragraph 7 dealing with the evidence of Mrs Ilga Donkin describing how the public reserve has been denuded of trees over the years, some by removal and others by poisoning.

        (f) The need for general deterrence. Magistrate Heilpern’s findings referred to above in paragraphs 23 and 24 of the judgment refer to the need for general deterrence. Furthermore, Magistrate Heilpern found:
            “25. This is an offence that is notoriously difficult to police. When defendants are caught red-handed it is important to send a very clear message to the community that deters those who may be tempted to follow suit: see Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357. This is particularly so when the maximum penalty is so high and clearly designed by Parliament to act as a deterrence”.

39 In relation to the subjective circumstances of the defendant, Magistrate Heilpern took into account:


        (a) The defendant’s plea of guilty at an early stage: see paragraphs 20, 26 and 31 of the judgment;

        (b) The defendant has no prior convictions: see paragraphs 20 and 26 of the judgment;

        (c) The offence involved lopping not felling the tree: see paragraph 26 of the judgment;

        (d) Some permission for a clean up had been given: see paragraph 26 of the judgment;

        (e) Remorse of the defendant: see paragraph 31 of the judgement;

        (f) The potential for the appellant to pay the prosecutor’s costs: see paragraph 31 of the judgment.

40 Magistrate Heilpern concluded:

            “32. Taking all factors above into account it is appropriate to impose a fine upon the defendant, one that reflects the seriousness of the offence, the need to deter, the conduct of the defendant and the subjective factors. The defendant is fined the sum of $10,000.00. There are court costs of $65 and he has 28 days to pay ”.

The appellant’s submissions

41 Mr Ozen of counsel, who appeared for the first time for the appellant on the appeal, submitted that the sentence imposed by the Local Court was too severe.

42 Mr Ozen submitted that the appellant accepted the findings of the Local Court that aggravated circumstances of the offence included that:


        (a) the offence was committed “for greed, not need” and that the lopping of the branches of the gum tree opened up the view to the benefit of the appellant and his property; and

        (b) the tree that was lopped was on a public reserve.

43 Mr Ozen submitted, however, that other aggravating factors set out in s 21A(5) of the Crimes (Sentencing Procedure) Act 1999 were not applicable.

44 In relation to the mitigating circumstances in s 21A(3) of the Crimes (Sentencing Procedure) Act 1999, Mr Ozen submitted that:


        (a) paragraph (a): The loss or damage caused by the offence was not substantial. The tree was not felled or destroyed. There is no evidence that the tree has suffered any permanent damage. The photographs entered as fresh evidence, taken on 1 February 2006, show the tree still to be alive with green leaves. The fact that the appellant employed an arborist to perform the work professionally, rather than the appellant “hacking” at the tree himself, made it more likely that the harm to the tree would be minimised.

        (b) paragraph (b): There is no evidence that the offence was part of a planned or organised criminal activity.

        (c) paragraph (c): The appellant does not have any record of previous convictions and the Local Court so found: paragraph 26 of judgment.

        (d) paragraph (f): The appellant was a businessman, being co-owner of Cameron’s Hardware in Bateman’s Bay (oral evidence on 6 February 2006). There was no evidence adduced by the respondent that Mr Cameron was not of good character. However, there was also no evidence advanced by the appellant that Mr Cameron was a person of good character.

        (e) paragraph (g): The appellant is unlikely to re-offend, although there was no evidence to this effect or from which such a finding could be made.

        (f) paragraph (h) and s 22: The appellant pleaded guilty at the earliest practicable opportunity. The appellant is entitled to the maximum discount of 25% for the utilitarian benefit of a plea of guilty: R v Thomson; R v Houlton (2000) 49 NSWLR 383. However, Mr Ozen conceded that the appellant’s behaviour at the time and after the commission of the offence would not justify any further discount for contrition and remorse, over and above the 25% for the utilitarian value of the plea of guilty. Mr Ozen also accepted that the strength of the prosecutor’s case – the defendant had been caught red-handed – was relevant to evaluation of remorse and what weight should be given to that factor in determining the appellant’s sentence. However, the strength of the prosecutor’s case was irrelevant in determining the utilitarian value of the plea of guilty: R v Thomson; R v Houlton (2000) 49 NSWLR 383; R v Sutton [2004] NSWCCA 225 (6 July 2004), [12], [13]. Mr Ozen submitted that Magistrate Heilpern erred in adopting the reasoning to the contrary in Sutherland Shire Council v Upper Class Development Pty Limited [2003] NSWLEC 414 at [39]: paragraphs 30, 31 of the judgment.

45 Mr Ozen also submitted that Magistrate Heilpern may have given overwhelming weight to the purpose of sentencing of general deterrence.

46 Finally, Mr Ozen submitted that, in applying the principle of even handedness by considering the pattern of sentencing for like offences, the Court would find that cases involving the felling or destruction of a tree or trees are more serious than merely lopping branches from a tree. Mr Ozen relied on the decision in City of Canada Bay Council v Bird (No. 2) [2003] NSWLEC 152 (24 June 2003).

The respondent’s submissions

47 Mr Warren, solicitor, appeared for the respondent. Mr Warren’s primary submission was that the sentence imposed by the Local Court was appropriate and the amount of $10,000 was not excessive.

48 Mr Warren submitted that it would be not be correct to say that there was no permanent harm. The evidence did not establish that fact.

49 Mr Warren submitted that the decision on sentence in City of Canada Bay Council v Bird(No. 2) [2003] NSWLEC 152 (24 June 2003), was distinguishable. Although the objective circumstances of the offence in that case were similar to the objective circumstances of the offence in the present case, the subjective circumstances were different:


        (a) In City of Canada Bay Council v Bird(No. 2) [2003] NSWLEC 152 (24 June 2003), there was substantial evidence of good character of the defendants (paras 6-8 and 10-11) whilst here there was none;

        (b) In City of Canada Bay Council v Bird(No. 2) [2003] NSWLEC 152 (24 June 2003), the defendants held a belief that the trees that were cut were dying and this belief led the defendants to engage in conduct which created the offences: para 14. Here the defendant held no such belief. Indeed, as Magistrate Heilpern found, he did not care whether they were alive.

        (c) In City of Canada Bay Council v Bird(No. 2) [2003] NSWLEC 152 (24 June 2003), the defendants were found not to be likely to re-offend. Here, there was no direct evidence establishing that the appellant would be unlikely to re-offend. To the contrary, the evidence of the appellant’s behaviour when caught and the appellant’s “flagrant disregard” of the advice of the officer of the council, Mr Wheatley, “not to touch the gum tree”, provides a basis to find that the appellant is likely to re-offend.

        (d) In City of Canada Bay Council v Bird(No. 2) [2003] NSWLEC 152 (24 June 2003), the defendants offered to replace the trees cut down with trees of a type which would satisfy the wishes of the owners of the land where the trees were growing. Accordingly, the damage caused to the environment could be rectified: para 17. Here, no restitution has been made, it being neither possible nor appropriate to do so on the public reserve.

        (e) In City of Canada Bay Council v Bird(No. 2) [2003] NSWLEC 152 (24 June 2003), the defendants exhibited genuine contrition and remorse. Here, there was no evidence of contrition and remorse of the appellant. There is only the utilitarian value of the appellant’s plea of guilty.

        (f) In City of Canada Bay Council v Bird(No. 2) [2003] NSWLEC 152 (24 June 2003), the trees cut were on private property, being the common property of a body corporate for a residential flat building (see City of Canada Bay City Council v Bird (2003) 124 LGERA 303). Here, the tree was on public land.

50 Finally, Mr Warren notes that the Local Court directed a moiety in favour of the respondent i.e. half of the amount of the fine should be paid to the respondent: Transcript 29/08/05 p 28. Mr Warren submitted this was in error. Pursuant to s 694(1) of the Local Government Act 1993, the whole of the amount of the fine should be paid to the respondent.

Approach to sentencing

51 The sentence must reflect both the objective gravity or circumstances of the offence and the personal or subjective circumstances of the defendant: Veen v R(No. 1) (1979) 143 CLR 458 at 490 and Veen v R(No. 2) (1988) 164 CLR 465 at 472.

The maximum penalty

52 The first objective circumstance relevant to determining the gravity of the offence is the maximum statutory penalty. “The maximum penalty available for an offence reflects the public expression of Parliament of the seriousness of the offence”: Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1992) 32 NSWLR 683 at 698 and see Capral Aluminium Ltd v Workcover Authority of NSW (2000) 49 NSWLR 610 at 633.

53 At the time of commission of the offence the maximum penalty was $1,100,000. This shows extreme seriousness with which Parliament views offences against the EPA Act.

Environmental harm

54 A second objective circumstance relevant to determining the seriousness of an offence is the objective harmfulness of an accused’s actions. The culpability of an accused depends, in part, on the seriousness of the environmental harm. In Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1992) 32 NSWLR 683 at 701, Kirby P said:

            “In environmental matters the Court has previously exercised its discretion in relation to penalty on the principle that the more serious the lasting environmental harm involved the more serious the offence and, ordinarily, the higher the penalty”.

55 In this case, the direct damage is the removal of seven to ten braches of a gum tree. Branches of other trees and other vegetation were also removed as part of the carrying out of the work, however, such damage is not part of the offence charged. There is no evidence of permanent damage to the tree that had branches removed from it. Equally, however, there is no evidence of what damage may occur in the future. In the circumstances, I find that the direct damage to the tree is minimal.

56 However, a proper appreciation of the environmental harm caused by commission of the offence needs also to take into account the fact that the commission of the offence occurred on a public reserve.

57 Magistrate Heilpern found that the offence was aggravated by the fact that the tree was on public land. Interference with trees, parks, reserves and other public places is of itself more serious than on private land: paragraph 23 of judgment.

58 The importance of public lands, and the controls on the care and management of public lands, have been recognised repeatedly by the courts: see for example, in relation to national parks, Woollahra Municipal Council v Minister for the Environment (1991) 23 NSWLR 710 at 716, 725, 727-728; Willoughby City Council v Minister Administering the National Parks and Wildlife Act (1992) 78 LGERA 19 at 34; Packham v Minister for the Environment (1993) 31 NSWLR 65 at 70 and 88-89; and Blue Mountains Conservation Society Inc v Director General of National Parks and Wildlife (2004) 133 LGERA 406 at 416-417.

59 Bushland in and around urban areas is of value to the community as part of the natural heritage, for its aesthetic value, and its value as a recreational, educational and scientific resource. Where that bushland meets or is in proximity to waterways, the bushland has added value. Planning has long controlled the carrying out of development in the foreshore zone: see for example Willoughby City Council v Bowen (1996) 92 LGERA 410 and Bowen v Willoughby City Council [2001] NSWLEC 274 (4 December 2001).

60 The actions of the appellant in entering upon and lopping a tree located on public land without consent increases the objective harmfulness of the offence.

Appellant’s state of mind

61 A third objective circumstance relevant to determining the seriousness of the offence is the state of mind of the appellant at the time of the offence. The state of mind can increase the seriousness of the offence. For that reason it becomes an aggravating feature of the offence and is taken into consideration when assessing the objective gravity or circumstances of the offence.

62 A large measure of premeditation will make the offence more serious than where it is committed on the spur of the moment: R v Morabito (1992) 62 A Crim R 82 at 86.

63 In this case, the commission of the offence by the appellant was premeditated and wilful.

64 The appellant planned to enter upon land owned by others (neighbours and the Council) in order to lop trees that were obstructing the water views available from the appellant’s property. The tree that was the subject of the offence was in direct line of sight between the appellant’s dwelling house and the water. By lopping branches from the tree, the water views on the appellant’s property would be improved. The photograph tendered on the appeal by the appellant illustrated the improvement in view afforded by the appellant’s actions of lopping branches from the tree. The appellant’s actions were premeditated to benefit the appellant.

65 The appellant also knowingly and deliberately acted contrary to instructions of a responsible public authority. The appellant made enquiries of a councillor and of a council officer in relation to felling and lopping of trees. The appellant was expressly told by the council officer, Mr Wheatley, “not to touch the gum trees”. The appellant deliberately and flagrantly contravened this express instruction.

66 The appellant knowingly and deliberately caused damage to a tree that was alive. The appellant stated to Mr Gomez that he did not care that the tree was alive.

67 The appellant knowingly and deliberately caused damage to a tree in a public reserve. The appellant was asked whether he realised that the tree was located on a council reserve and the appellant replied, “Yes. Who cares? It’s an eye-sore and I am going to get rid of this”.

68 These knowing and deliberate actions of the appellant in committing the offence increase the objective gravity of the offence.

Reasons for committing offence

69 A fourth objective circumstance relevant to an evaluation of the criminality involved in the commission of the offence is the reason for its occurrence: Axer Pty Limited v Environment Protection Authority (1993) 113 LGERA 356 at 366 and Director General, National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 (27 September 2002) at [92].

70 In this case, the appellant deliberately caused the lopping of the tree so as to derive aesthetic and financial benefit; in short, for greed. Magistrate Heilpern so found: paragraphs 17 and 18 of judgment. The appellant does not contest the findings of the learned Magistrate. On the evidence, the findings are entirely appropriate.

Need for general deterrence

71 For environmental offences, the purpose of sentencing of general deterrence is of central importance: Axer Pty Limited v Environment Protection Authority (1993) 113 LGERA 357 at 359; Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1992) 32 NSWLR 683 at 701; Carlino v Leichhardt Municipal Council [2005] NSWLEC 198 (27 April 2005), at [31]. Persons will not be deterred from committing environmental offences by nominal fines: Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (13 February 2006) at [139]-[142], [150], [151].

72 There is a need for the upholding of the integrity of the system of planning and development control. This system depends on persons taking steps to obey the law by ascertaining when development consent is required and then obtaining development consent before carrying out development: Byron Shire Council v Fletcher [2005] NSWLEC 706 (25 November 2005) at [60].

73 Courts have continuously and consistently stressed the need for general deterrence in sentencing fro offences against the EPA Act.

74 In Cooper v Coffs Harbour City Council (1997) 97 LGERA 125 at 143, Howie AJ, with whom Hunt CJ in CL and Smart J agreed, stated:

            “There must be an element of general deterrence in dealing with significant breaches of the planning laws”.

75 In Ryde City Council v Calleija (1998) 99 LGERA 360, the defendant had cut trees in contravention of a tree preservation order and accordingly committed an offence against s 125(1) of the Act. The defendant submitted that in sentencing the defendant, “the court should not take undue account of the desire to provide a general deterrence against breaches of environmental planning laws”: at 366. Lloyd J rejected this submission. Lloyd J, after referring to the dicta in Cooper v Coffs Harbour City Council (1997) 97 LGERA 125 at 143, stated:

            “There is undoubtedly a twofold purpose in punishing offenders who come before this Court, and one of those purposes is to deter offences against environmental planning laws in a general sense. It is of course important to have regard firstly to the individual facts of each case which comes before the court, but that does not militate against the principle of general deterrence being taken into proper account when deciding the appropriate penalty”.

76 In Mosman Municipal Council v Menai Excavations Pty Limited (2002) 122 LGERA 89 at 97[35], Lloyd J said:

            “The system of planning control would become somewhat ineffective if persons were to carry out development, including demolition work, without ensuring the necessary development consent has been obtained”.

77 In Sutherland Shire Council v Turner [2004] NSWLEC 774 (18 June 2004) at [24], Bignold J stated:

            “A number of cases in this Court have emphasised the fact that the requirement that development consent be granted before work is undertaken is an important linchpin on the control and development of building works imposed by the planning laws, which, if not honoured and obeyed, would result in the whole system of planning control being placed in jeopardy. This point was made by Lloyd J in one of the reported decisions, Mosman Municipal Council v Menai Excavations Pty Limited (2002) 122 LGERA 89. The importance of that matter referred to by His Honour, has recently been discussed in an unreported decision of mine, Willoughby Council v P and V Masonry Pty Ltd [2003] NSWLEC 312, a decision handed down on 14 November 2003”.

78 Carlino v Leichhardt Municipal Council [2005] NSWLEC 198 (27 April 2005) was a case involving the carrying out of development contrary to conditions of development consent. Such conduct also constituted a contravention of s 76A(1) and an offence against s 125(1) of the EPA Act. The offender had been convicted and sentenced by the Local Court. The offender had appealed against the severity of the sentence to this Court. Lloyd J dismissed the appeal. In doing so, Lloyd J emphasised that general deterrence needed to be a “major consideration”:

            “[31] General deterrence is also a major consideration in the imposition of penalties for environmental offences: Axer Pty Limited v Environment Protection Authority (1993) 113 LGERA 357 at 359; Camilleri’s Stock Feeds Pty Ltd at 701; Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 61. Thus, the penalty imposed must deter not only the offender, but also those engaged in similar activities, from committing like offences and also to procure that they will take the precautions necessary to ensure that offences do not occur and the environment is not exposed to a risk of harm: Axer at 359. For strict liability offences, however, care must be taken to ensure that the penalty imposed does not cause the offender to shoulder an unfair burden of community education: Walden v Hensler (1987) 163 CLR 561 at 570.
            [32] Section 125 of the EPA Act prohibits people from offending against a direction or prohibition provided for under the Act. Section 76A(1)(b) of the EPA Act provides that if an environmental planning instrument provides that specified development may not be carried out except with consent, a person is prohibited from carrying out that development unless the development is carried out in accordance with the consent and the instrument. Critically, the planning system as a whole would be rendered ineffective if developments were allowed to continue without or, in contravention of, development consents: Mosman Municipal Council v Menai Excavations Pty Limited (2002) 122 LGERA 89.
            [33] In Keir v Sutherland Shire Council [2004] NSWLEC 754, which also concerned an appeal against severity of sentence for a breach of s 76A(1)(b), McClellan J highlighted the particular need for general deterrence in relation to contraventions of development consents. Relevantly, his Honour stated (at par [20]) that the Court must “ impose a penalty which is not only appropriate, with respect to the actions of [the offender], but also sends a strong warning to builders and other who carry out development work that a breach of the law will be visited with significant financial consequences ”.
            [34] Following McClellan J in Keir , I find that in this case general deterrence is an important factor in sentencing for an offence of this kind. In particular, there is a need to protect the public interest by ensuring that conditions of consent seeking to minimise the impact of development are observed.

79 In Council of Camden v Tax (2004) 137 LGERA 368 at 327[28]-[29], McClellan J stated:

            “[28] The necessity for the protection of vegetation of the community is now accepted in virtually every area of the state. Special legislation has been provided in relation to rare species and ecological communities but beyond that legislation, as the Local Environmental Plan in this case illustrates, steps have been taken to ensure that in areas where development may be appropriate, decisions with respect to the grant of development consent are taken after regard is had to the value and significance of the vegetation on any parcel of land. As this Local Environmental Plan makes plain, that protection has been extended to land which is otherwise identified as suitable for rural or rural-related uses.
            [29] Accordingly, in imposing a penalty in this particular case, it is most important to ensure that that penalty sends a message to the general community that before any activity is taken which may cause the demise of any tree, development consent must be obtained from the local council. Unless that message is sent and received by the community, there will be difficulties in ensuring that the objective of carefully considering the necessity of retaining vegetation in many areas, but particularly rural areas is achieved”.

80 In Council of the City of Gosford v Tauszik [2005] NSWLEC 266 (22 April 2005), McClellan J stated:

            “[3] Control over the removal of trees is commonly provided in planning instruments, particularly in urban areas. In this respect the Gosford Planning Scheme Ordinance is typical. Different arrangements are often provided in relation to the control of trees and other vegetation in rural areas where particular legislation has been provided in relation to vegetation of various types.
            [4] Common to provisions in planning instruments in urban areas is a requirement that before a tree can be removed, and in many cases before it can be significantly altered, the consent of the Council is required. Planning instruments which contain these provisions are developed in recognition of the community’s concern to ensure that trees which contribute to the quality of the urban landscape are not indiscriminately removed but that this only occurs after a judgment has been made as to the impact of the removal of the tree. Accordingly, any breach of a provision in a planning instrument designed to control the removal of trees is objectively serious for it challenges the means by which the community has provided for the preservation of the quality of the urban landscape.
            [20] In the present case, I believe that it is important to mark the seriousness of the offender’s conduct by a penalty which is sufficient to ensure that not only is he adequately punished but that others in the community are reminded of the serious nature of the offence. In this respect the community has, as I have indicated, entrusted the management of the urban landscape in this area to the Council. That landscape is provided not only by the buildings and other structures which are erected within it but is significantly defined by the nature of the vegetation, both native and otherwise, which has been either maintained or planted over the years. Just as the community expects that everyone within it will honour the obligation to obtain consent for the erection of structures, so the community expects that anyone who wishes to alter the natural landscape by removing or modifying trees will approach the local council to obtain consent. In this way the community’s aspirations for the urban environment can be identified, evaluated and implemented.
            [21] The offender by his unilateral act decided to step outside the regime which the community has provided and, accordingly, a significant penalty should be imposed…”.

81 Having regard to the dicta in these cases, Magistrate Heilpern was justified in considering that general deterrence ought to be a major consideration in sentencing for offences of the kind committed by the appellant in this case. I reject the appellant’s submission that Magistrate Heilpern erred in giving undue weight to the sentencing consideration of general deterrence.

Prevalence of the offence

82 Prevalence of crime of a certain class is a relevant consideration when deciding an appropriate level of sentence: R v Cuthbert (1967) 86 WN (Pt 1) (NSW) 272 at 278 per Herron CJ with whom Sugerman and Walsh JJA agreed, R v Hayes [1984] NSWLR 740 at 742-743 per Street CJ with whom Hunt J agreed, and 743-744 per Lee J and R v Henry (1999) 46 NSWLR 346 at 366[86] per Spigelman CJ. Prevalence may refer to:


        (a) a situation in which a particular crime occurs with such frequency that it has a salience beyond those immediately affected by the crime, which impacts on society by changing patterns of behaviour out of a sense of apprehension: R v Henry (1999) 46 NSWLR 346 at 366[87]; or

        (b) the incidence of a particular crime increasing over a period of time leading to an increase in the weighting of general deterrence: R v Henry (1999) 46 NSWLR 346 at 367[88].

83 In this case, Magistrate Heilpern found that the lopping and felling of trees is a prevalent offence: paragraph 24 of the judgment. See also paragraph 7 of the judgment referring to the evidence of Mrs Donkin, a resident who described the history of removal and poisoning of trees in the public reserve.

84 The prevalence of the offence of lopping and felling trees without obtaining development consent is a relevant consideration to be taken into account in determining the appropriate level of sentence for the offence in this case. It also leads to an increase in the weighting of general deterrence as a sentencing consideration. Magistrate Heilpern appropriately considered this factor.

Subjective circumstances of the appellant

85 A proportionate sentence not only depends on the objective circumstances of the offence, but also must be appropriate to the particular offender. This requires the Court to take into account and personal mitigating factors present: Veen v R (No. 1) (1979) 143 CLR 458 at 490; Veen v R (No. 2) (1988) 164 CLR 465 at 472; R v Gallagher (1991) 23 NSWLR 220 at 222, 223, 229, 230 and 233. However, the subjective features of the case must not be allowed to produce a sentence which fails to reflect the objective seriousness of the crime: R v Dodd (1991) 57 A Crim R 349 at 354; Murray (Kellie Marie) NSWCCA, unreported (29 October 1997), Barr J.

No prior convictions

86 The appellant in this case has no prior convictions. Lack of prior criminality is a factor in sentencing in this case: Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1992) 32 NSWLR 683 at 701 and s 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999.

Plea of guilty

87 The appellant has pleaded guilty to the offence. Section 22 of the Crimes (Sentencing Procedure) Act 1999 expressly requires the Court to take into account the fact that the offender has pleaded guilty, when the offender pleaded guilty and, accordingly, the Court may impose a lesser penalty than it would have otherwise imposed.

88 A guideline judgment in respect of the discount for plea has been given by the Court of Criminal Appeal in R v Thomson; R v Houlton (2000) 49 NSWLR 383. The utilitarian value for a plea of guilty has been assessed to be in the range of 10 to 25% on sentence.

89 In this case, the appellant is entitled to a discount of 25% for the entry of a plea of guilty at the earliest available opportunity. It reflects the full utilitarian value of the plea to the criminal justice system.

90 The utilitarian value of the plea is not to be discounted by any consideration of the strength of the prosecution case: R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 416[137] and R v Sutton [2004] NSWCCA 225 (6 July 2004) at [12] and cases therein cited. The appellant submitted that Magistrate Heilpern erred by doing so. There is no express statement to that effect in the judgment. Rather, the appellant submits, it should be inferred from the fact that Magistrate Heilpern quoted a passage from the decision in Sutherland Shire Council v Upper Class Developments Pty Ltd [2003] NSWLEC 414 at [39] which did note, erroneously, “that the utilitarian value of the plea should be reduced in part because of the high likelihood of success to the prosecution in the matter”.

91 However, the context of the quoted passage of the reveals that the primary purpose of Magistrate Heilpern in referring to that decision was different, namely to deal with the argument that had been put by the appellant at trial that the maximum penalty for the offence was not that prescribed by statute for the offence, but rather the limit for a penalty notice. Magistrate Heilpern correctly rejected that argument. The reference to the plea of guilty was ancillary. Moreover, the learned Magistrate does not state expressly that he discounted the utilitarian value of the plea of guilty for any assessment of the strength of the case.

92 In any event, the question is no longer relevant as this appeal is by way of rehearing. The appellant should receive the full discount of 25% for the utilitarian value of his plea of guilty without any impermissible reduction for the strength of the prosecution case.

Contrition and remorse

93 There is no evidence of contrition and remorse by the appellant. A mere plea of guilty from a person caught red-handed is not evidence of remorse: R v Power [1999] NSWCCA 25 (5 March 1999) at [21] per Dunford J with whom Greg James J and Grove J agreed.

94 Indeed, the appellant’s behaviour at the time of committing the offence and on apprehension reveals an absence of contrition and remorse. As was noted in R v Power [1999] NSWCCA 25 (5 March 1999), [21], “one way of showing remorse is to tell the truth about one’s involvement”. The appellant failed to tell the truth.

95 The appellant lied, both to his contractor engaged to carry out the tree lopping and to the officer of the council investigating the offence. The appellant told the contractor, Mr Ward, that he had been given approval to lop 10% of the tree. No such approval was given and indeed he had been expressly told not to touch that tree. The appellant told the Council’s investigating officer, Mr Gomez, that he had spoken to Councillor Pollock who said that it would be OK and Councillor Pollock then put the appellant on to Mr Wheatley who told him that he could do it too. Again, this was false. Neither person told the appellant that he could lop the gum tree and Mr Wheatley expressly told him not to touch the gum tree.

96 The appellant exhibited a complete lack of regard for the law and consequences of his actions. He was rude, dismissive and unco-operative to the investigating officer of the Council.

97 The absence of contrition and remorse cannot increase any sentence; it simply means there can be no further discount beyond the discount for the utilitarian value of the plea of guilty.

Cooperation with regulatory authority

98 The cooperativeness of an accused is a matter to be taken into account in fixing penalty: Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1992) 32 NSWLR 683 at 700-701 and s 23(1) of the Crimes (Sentencing Procedure) Act 1999. However, a sentence cannot be reduced for this factor to such an extent that the sentence becomes unreasonably disproportionate to the nature and circumstances of the offence: s 23(3) of the Crimes (Sentencing Procedure) Act 1999.

99 As stated above, there has been a complete lack of cooperation by the appellant in this case. There is no evidentiary basis for mitigation of sentence for this factor of co-operation.

Other mitigating circumstances

100 There is no evidence on which to make findings as to the character of the appellant or any likelihood of re-offending.

Consistency in sentencing

101 A relevant consideration in sentencing is the ascertainment of the existence of a general pattern of sentencing by criminal courts for offences such as the offence under consideration. In R v Oliver (1980) 7 A Crim R 174 at 177, Street CJ with whom Begg JJ and Slattery JJ agreed stated:

            “This second initial consideration is the ascertainment of the existence of the general pattern of sentencing by criminal courts for offences such as those under consideration. The task of the sentencing judge, no less than the task of an appellant court, is to pursue the ideal of evenhandedness in the matter of sentencing. Full weight is to be given to the collective wisdom of other sentencing judges in interpreting and carrying into effect the policy of the legislature. That collective wisdom is manifested in the general pattern of sentences currently being passed in cases which can be recognised judicially as relevant to the case in hand. This is not to suggest that sentences are to be arbitrarily dictated by mathematical application of statistics. There is an enormous difference between recognising and giving weight to the general pattern as a manifestation of the collective wisdom of sentencing judges on the one hand and, on the other hand, forcing sentencing into a straight-jacket of computerisation. There is, more over, always a danger, as is recognised on the civil side in the assessment of general damages, of seeking to use a factual assessment in one case as a legal precedent or authority to govern the decision in an another”. See also R v Visconti [1982] 2 NSWLR 104 at 107.

102 The importance of consistency was well expressed by Mason J in Lowe v The Queen (1994) 154 CLR 606 at 610-611:

            “Just as consistency in punishment – a reflection of the notion of equal justice – is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community”.
        See also R v Henry (1999) 46 NSWLR 346 at 353 per Spigelman CJ.

103 Care must be taken in the task of achieving consistency. As stated in Axer Pty Limited v Environment Protection Authority (1993) 113 LGERA 357 at 365:

            “There is always a difficulty in attempting to compare the penalty in one case with the penalty in another because of the wide divergence of facts and circumstances”
            and in R v Stahl [1997] NSWCCA 160 (26 March 1999) at [10]:
            “Each case is different and one case does not demonstrate the limits of a sentencing judge’s discretion”.

104 The proper approach is for a court to look at:

            “whether the sentence is within the range appropriate to the gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range”: R v Morgan (1993) 70 A Crim R 368 at 371 and Capral Aluminium Ltd v WorkCover Authority of NSW (2000) 49 NSWLR 610 at 641.

105 Cases involving the same offence against s 125(1) of the EPA Act for felling or lopping trees and to which reference could be made to determine the general pattern of sentencing include the following:


        (a) Cooper v Coffs Harbour City Council (1997) 97 LGERA 125: The offender committed an offence under s 125(1) of the EPA Act by removing four trees contrary to a requirement of a development consent that the trees were to be retained and other trees contrary to a condition of the consent that stated that the trees could be removed only with the approval of the council, which approval had not been obtained. The offender was fined $5,000. However, the penalty imposed is not directly relevant because the offence was committed at a time when the maximum penalty was $110,000, being 10% of the current maximum penalty of $1,100,000 which came into force on 1 February 2000: see Environment Protection Authority v Hy-tec Industries Pty Ltd (2000) 123 LGERA 246 at 251 [17] and Hornsby Shire Council v Mouawad [2000] NSWLEC 191 (31 October 2002), [27].

        (b) Canterbury Municipal Council v Saad (2001) 12 LGERA 429: The offender committed an offence under s 125(1) of the EPA Act in that, in implementing his development consent for the demolition of existing dwelling houses and the construction of new townhouses, two identified trees were removed contrary to conditions of that consent. The offender was fined $5,000 (again the penalty is not directly relevant because the offence also was committed at a time when the maximum penalty was still $110,000).

        (c) Ku-ring-gai Municipal Council v Gumland Property Holdings Pty Ltd [2001] NSWLEC 39 (13 December 2000): The offender committed an offence against s 125(1) of the EPA Act by removing 55 trees subject to a tree preservation order without the council’s consent. The offender was fined $8,000.

        (d) Hornsby Shire Council v Moit [2001] NSWLEC 50 (25 February 2001 revised 28 March 2001): The offender committed an offence against s125(1) of the EPA Act by removing or destroying 49 trees contrary to a tree preservation order without the council’s consent. The offender was fined $7,000.

        (e) Holroyd City Council v Skyton Developments Pty Limited (2002) 119 LGERA 225: The offender committed an offence against s 125(1) of the EPA Act by removing two trees protected by a tree preservation order, without the council’s consent. The offender was fined $15,000.

        (f) Hornsby Shire Council v Mouawad [2002] NSLEC 191 (31 October 2002): The offender committed an offence against s. 125(1) of the EPA Act by removing or damaging 173 trees protected by a tree preservation order without the council’s consent. The offender was fined $9,000.

        (g) Hornsby Shire Council v Khoury [2003] NSWLEC 83 (25 October 2002): The offender committed an offence against s 125(1) of the EPA Act by removing 178 trees protected by a tree preservation order without the council’s consent. The offender was fined $15,000.

        (h) Ryde City Council v Xu [2003] NSWLEC 146 (2 July 2003): The offender committed an offence against s 125(1) of the EPA Act by lopping the top off a tree protected by a tree preservation order, without the council’s consent. The offender was fined $7,500.

        (i) Ristevski v Hurstville City Council [2003] NSWLEC 409 (26 November 2003): The offender committed an offence against s 125(1) of the EPA Act in injuring two trees, one of which was to be retained under a development consent and the other was subject to a tree preservation order, without the council’s consent. The offender also carried out other development in the form of constructing a concrete walkway and five retaining walls. The offender was fined $25,000.

        (j) Newcastle City Council v Pepperwood Ridge Pty Limited (2004) 132 LGERA 388: The offender committed an offence against s 125(1) of the EPA Act by removing dead, dying and living trees, numbering between 110 and 164, in contravention of an environmental planning instrument and s 76A of the Act. The offender was fined $68,000.

        (k) Council of Camden v Tax (2004) 137 LGERA 368: The offender committed an offence against s 125(1) of the EPA Act by cutting 40 trees in contravention of an environmental planning instrument and a condition of subdivision consent. The offender was fined $30,000.

        (l) Sutherland Shire Council v Nustas [2004] NSWLEC 608 (3 November 2004): The offender committed an offence against s 125(1) of the EPA Act by damaging four trees (leading to the necessity to remove three of the damaged trees) required to be retained by a development consent, without the council’s consent. The offender was fined $11,000.

        (m) The Council of the City of Gosford v Tauszik [2005] NSWLEC 266 (22 April 2005): The offender committed an offence against s 125(1) of the EPA Act by cutting down three trees on his property in contravention of an environmental planning instrument without the council’s consent. The offender was fined $25,000.

        (n) Active Tree Services Pty Ltd v Ku-ring-gai Municipal Council [2005] NSWLEC 431 (9 August 2005): The offender committed an offence against s 125(1) of the EPA Act by cutting down a tree protected by a tree preservation order without the council’s consent. The offender was convicted by the Local Court and fined $10,000. The offender appealed to this Court against conviction and sentence. The Court dismissed the appeal against conviction and against sentence, confirming the penalty of $10,000.

        (o) Byron Shire Council v Fletcher [2005] NSWLEC 705 (25 November 2005): The offender committed an offence against s 125(1) of the EPA Act in cutting down 50 trees on his land in contravention of an environmental planning instrument and of a tree preservation order, without the council’s consent. The offender was fined $20,000.

106 These cases reveal that, generally, sentences have increased in the last 2 years as the seriousness of contravention of statutory requirements for the preservation of trees has been increasingly recognised. A sentence for the felling or lopping of a tree or trees contrary to such statutory requirements has attracted a sentence in the order of $10,000 to $25,000.

107 Of course, the number of trees affected and the extent of effect (whether removal or lopping) is relevant to one factor in sentencing, that of environmental harm. However, there are other objective circumstances of the offences that must be considered, together with the subjective circumstances of the offender in each case. An appropriate sentence must be proportionate to both the objective and the subjective circumstances. This is why it makes it difficult (and would lead to error) to endeavour to do what the appellant submitted should be done of divining from the sentences a rate per tree or a rate for lopping and another for felling.

108 Nevertheless, the sentences imposed by criminal courts for the offence against s 125 (1) of the EPA Act for felling or lopping trees do reveal that a sentence of a fine in the amount of $10,000, being the sentence of the Local Court in this case, is within the range appropriate to the gravity of the particular offence in this case and to the subjective circumstances of the appellant as the offender.

Appropriate sentence

109 Magistrate Heilpern weighed up the objective circumstances of the offence and the subjective circumstances of the appellant and determined that an appropriate penalty was $10,000. In fixing that amount, Magistrate Heilpern said that the penalty must reflect the seriousness of the offence, the need to deter, the conduct of the defendant and the subjective factors: paragraph 32 of the judgment.

110 For the reasons that I have stated above, considering the matter afresh by way of rehearing, a fine of $10,000 is an appropriate sentence that is within the range appropriate to the objective circumstances of the offence and the subjective circumstances of the appellant.

111 I reject the appellant’s submission that the sentence imposed by the Local Court is too severe. Accordingly, the appeal should be dismissed.

Costs

112 Mr Ozen for the appellant submitted that even if the Court were to dismiss the appeal, the Court would still not order the appellant to pay the respondent’s costs. Mr Ozen advanced two reasons. First, the Court should look at the total quantum of the fine and the costs in Local Court that the appellant has been ordered to pay. A further order to pay the respondent’s costs of the appeal would be punitive for the appellant. Secondly, the appeal was not without merit and was arguable.

113 Mr Warren submitted that the usual order for costs should be made.

114 I agree that the usual order for costs should be made. The appellant, having been unsuccessful in his appeal, should pay the successful respondent’s costs of the appeal. Such an order is made not to punish the appellant for his lack of success but rather to compensate the respondent for the expense to which it has been put by the appellant instituting and prosecuting his appeal: Latoudis v Casey (1990) 170 CLR 534 at 543, 563, 567. Such an order is appropriate whether the appeal should be classified as arguable or not.

Orders

115 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 direction of the Local Court of a moiety in favour of Eurobodalla Shire Council made on 29 August 2005 is set aside.
            4. In lieu of the direction in order 4, pursuant to s 694 of the Local Government Act 1993, the penalty is to be paid to Eurobodalla Shire Council.
            5. The appellant is to pay the respondent’s costs of the appeal.

        I certify that this and the 41 preceding pages are a true copy of the reasons for the judgment of The Honourable Justice B. J. Preston.

        ………………………… …………………………
        Associate Date
02/03/2006 - Citation amended such that only Applicant's surname appears. - Paragraph(s) N/A
Most Recent Citation
Cases Cited

46

Statutory Material Cited

7

Ebacarb Pty Ltd v Environment Protection Authority [2003] NSWLEC 411
Sutherland Shire Council v Upper Class Developments Pty Ltd [2003] NSWLEC 414
Rees v R [2012] NSWCCA 47