Chief Executive of the Office of Environment and Heritage v Kennedy

[2012] NSWLEC 93

Land and Environment Court

New South Wales

Medium Neutral Citation:	Chief Executive of the Office of Environment and Heritage v Kennedy [2012] NSWLEC 93
Hearing dates:	1 May 2012
Decision date:	01 May 2012
Jurisdiction:	Class 5
Before:	Biscoe J
Decision:	(1) The sentencing hearing dates of 2 and 3 May 2012 are vacated. (2) There will be a directions hearing before a Judge on Tuesday, 22 May 2012 at 9.30 am, which the defendant may attend by telephone, with a view to fixing a new sentencing hearing date at Armidale, if possible, otherwise Tamworth. (3) By no later than noon on Monday, 21 May 2012 Mr Kennedy is to file and serve an affidavit as to the status of negotiations to amend the remediation order and compliance with same. (4) Prior to the directions hearing, the prosecutor is to make enquiries as to the available dates for a sentencing hearing at Armidale or Tamworth. (5) The costs of the defendant's notice of motion filed on 30 April 2012 will be costs in the cause.
Catchwords:	PRACTICE AND PROCEDURE:- application to vacate hearing date.
Legislation Cited:	Native Vegetation Act 2003 s 12
Category:	Procedural and other rulings
Parties:	Chief Executive of the Office of Environment and Heritage (Prosecutor) John Francis Kennedy (Defendant)
Representation:	COUNSEL: Ms S Callan (Prosecutor) Mr J F Kennedy (in person) (Defendant) SOLCITORS: Gordon Plath, Office of Environment and Heritage (Prosecutor) N/A (Defendant)
File Number(s):	50577 of 2011

EX TEMPORE Judgment

1. This is a contested motion by the defendant, Mr John Kennedy, to adjourn his sentencing hearing on 2 and 3 May 2012. I have allowed Mr Kennedy to attend the motion hearing by telephone because he lives at Uralla (between Armidale and Tamworth), has no legal representation, is confined to a wheelchair which makes travelling to and around Sydney difficult, and the motion must be heard quickly.

1. The offence to which Mr Kennedy has pleaded guilty is against s 12 of the Native Vegetation Act 2003 in that he cleared native vegetation otherwise than in accordance with a development consent granted in accordance with that Act or a property vegetation plan.

1. The basis of the adjournment application is that he is deeply engaged in negotiations with officers of the Department of the Environment for an amended remediation order which he has proposed. He considers that the making of an amended remediation order and his compliance with it is important to the outcome of the sentencing hearing and will bear heavily in his favour.

1. The background is that on 16 April 2012 Mr Kennedy met with Ms Katherine O'Regan, the Chief of Staff of the Minister for the Environment, her secretary, and solicitor Mr Gordon Plath, who is also the solicitor on the record for the prosecutor in these proceedings, in relation to amending the existing remediation order. Mr Kennedy has complied with the latter to the extent of removing his stock as directed but has found its fencing requirement unworkable and impossible to comply with.

1. On 19 April 2012 he received correspondence from an officer of the Department in relation to resolving an amended remediation order and was given the name of a Department officer, Ms Sharne Ridge. He has spoken to her, and sent her maps and relevant correspondence on 23 April. She has assured him that she will give the matter her immediate attention. He will be speaking to her next Monday to arrange an on-site inspection which he anticipates will occur within a day or so thereafter. He says that if an amended remediation order were to be made in that week, then he anticipates being in a position to comply with its anticipated fencing requirements within a month.

1. The prosecutor opposes the adjournment application. The prosecutor suggests that the matter of an amended remediation order and complying with it is not as important for sentencing purposes as Mr Kennedy thinks it is. Nevertheless the prosecutor acknowledges that it is a matter which could be regarded as significant on sentencing. The prosecutor expresses some concern that an amended remediation order may not eventuate, in which case if the sentencing hearing is stood over for, say, a month then the position will be no different than it is at the moment. The prosecutor also suggests that there has been delay by Mr Kennedy in seeking the adjournment. As I understand it, the delay is explained by Mr Kennedy on the basis that he made representations to the Minister (or that representations to the Minister were made on his behalf) but as it turned out it was not until the events of the last month, to which I have referred, that the representations resulted in serious discussions with departmental officers.

1. Mr Kennedy was injured some years ago resulting in loss of mobility and requires the use of a wheelchair. It is difficult for him to get to Sydney and once in Sydney it is difficult for him to move around due to heavy traffic and inaccessible areas. He does not over-exaggerate this and says that, notwithstanding the difficulties, he can come to Sydney if necessary. However, he asks that, if the hearing date tomorrow is vacated, the matter thereafter be heard at Armidale or Tamworth because of his mobility difficulties, the fact that the two witnesses whom he proposes to call for the sentencing hearing reside in Armidale and are required for cross-examination, and he lives between Armidale and Tamworth.

1. The issue of vacating the hearing date is finely balanced. On balance, I am inclined to accede to the application for an adjournment given the very advanced state of negotiations for an amended remediation order; the fact that the defendant regards, and the sentencing judge may regard, the question of an amended remediation order and his compliance with it as important or at least significant; and the sentencing judge might otherwise consider that the hearing should be adjourned until the issue of an amended remediation order and Mr Kennedy's compliance with it are resolved.

1. Given that the sentencing hearing date is to be vacated, the prosecutor opposes Mr Kennedy's application that the sentencing hearing thereafter be at Armidale or Tamworth. The prosecutor acknowledges that there are a number of factors which might be regarded as favouring that course and does not specifically identify any countervailing factors. In my view, the following factors favour the sentencing hearing being at Armidale, if possible, otherwise Tamworth: Mr Kennedy resides between Armidale and Tamworth; he requires the use of a wheelchair and has difficulty in getting to Sydney and moving around in Sydney due to heavy traffic and inaccessible areas; the two witnesses that he proposes to call at the hearing are required for cross-examination and they both reside in Armidale; and no other witnesses are anticipated to be required to attend the hearing.

1. In light of my decision, the parties agree that there should be a further directions hearing in three weeks when the matter of the amended remediation order and steps taken to comply with it can be assessed with a view to fixing a new hearing date.

1. I make the following orders:

(1)   The sentencing hearing dates of 2 and 3 May 2012 are vacated.

(2)   There will be a directions hearing before a Judge on Tuesday, 22 May 2012 at 9.30 am, which the defendant may attend by telephone, with a view to fixing a new sentencing hearing date at Armidale, if possible, otherwise Tamworth.

(3)   By no later than noon on Monday, 21 May 2012 Mr Kennedy is to file and serve an affidavit as to the status of negotiations to amend the remediation order and compliance with same.

(4)   Prior to the directions hearing, the prosecutor is to make enquiries as to the available dates for a sentencing hearing at Armidale or Tamworth.

(5)   The costs of the defendant's notice of motion filed on 30 April 2012 will be costs in the cause.