Gittany Constructions Pty Ltd v Sutherland Shire Council - [2006] NSWLEC 242

No judgment structure available for this case.

Reported Decision: (2006) 145 LGERA 189

Land and Environment Court

of New South Wales

CITATION: Gittany Constructions Pty Limited v Sutherland Shire Council [2006] NSWLEC 242

PARTIES:
APPLICANT
Gittany Constructions Pty Limited
RESPONDENT
Sutherland Shire Council

FILE NUMBER(S): 60001; 60002; 60003 of 2006

CORAM: Preston CJ

KEY ISSUES:
Appeal :- appeal against severity of sentences of Local Court - appeals by way of rehearing - sentences that would be proportionate to objective circumstances of offences and subjective circumstances of offender would be more severe than sentences imposed by Local Court - appellant not warned at hearing of appeals of possibility of more severe sentences - sentences should not be varied by substituting more severe sentences - appropriate order is to dismiss appeals.
Environmental offences:- carrying out development not in accordance with conditions of development consent - removal of native trees required to be protected and retained - removal of indigenous bushland, trees, shrubs, groundcovers and sandstone rock outcrops required to be protected and retained - offender's actions objectively serious - offences foreseen, negligent and the consequences of conduct that was intended by offender - offences committed for reasons of practicality and expediency - mitigating circumstances - lack of prior convictions - early plea of guilty - contrition and remorse - assistance to authorities - inter-relatedness of mitigating circumstances justifies single combined discount - no extra-curial punishment established.

LEGISLATION CITED: Crimes (Local Courts Appeal and Review) Act 2001 (NSW) s 3(3), s 31(2)(a), s 37(1), s 37(2), s 39(2)
Crimes (Sentencing Procedure) Act 1999 s 3A, s 17, s 21A(3)(i), s 21A(3)(m), s 22, s 22(1), s 22(1)(b), s 23(2)(c)
Criminal Appeal Act 1912 s 5AA
Environmental Planning and Assessment Act 1979 (NSW) s 76A(1), s 76A(1)(b), s 96, s 125(1), s 126(1), s 127(3)
Fines Act 1996 (NSW) s 6

CASES CITED: Axer Pty Limited v Environment Protection Authority (1993) 113 LGERA 357;
Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (13 February 2006);
Byers v Leichhardt Municipal Council [2006] NSWLEC 82 (13 February 2006);
Byron Shire Council v Fletcher [2005] NSWLEC 706 (25 November 2005);
Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304;
Cameron v Eurobodalla Shire Council [2006] NSWLEC 47 (13 February 2006);
Council of Camden v Tax (2004) 137 LGERA 368;
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1992) 32 NSWLR 684;
Capral Aluminium Ltd v Workcover Authority of NSW (2000) 49 NSWLR 610;
Carlino v Leichhardt Municipal Council [2005] NSWLEC 198 (27 April 2005);
Cliftleigh Haulage Pty Limited v Byron Shire Council [2005] NSWLEC 692 (1 December 2005);
Cooper v Coffs Harbour Council (1997) 97 LGERA 125;
Director General of National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 (27 September 2002);
Durward Pty Ltd v Sutherland Shire Council [2004] NSWLEC 12 (28 January 2004);
Ebacarb Pty Limited v Environment Protection Authority [2003] NSWLEC 411 (2 December 2003);
Environment Protection Authority v Ampol Ltd (1995) 85 LGERA 443;
Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349;
Environment Protection Authority v Hochtief AG [2006] NSWLEC 200 (28 April 2006);
Eurobodalla Shire Council v Wheelhouse [2006] NSWLEC 98 (6 February 2006);
Fletcher Construction Australia Limited v Workcover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66;
Gibson v The Queen (1991) 172 CLR 353;
Hoare v The Queen (1989) 167 CLR 348;
Ku-ring-gai Council v Nettcorp Pty Ltd [2003] NSWLEC 203 (13 August 2003);
Lawrenson Diecasting Pty Ltd v Workcover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464;
Lowe v The Queen (1994) 154 CLR 606;
Majury v Sunbeam Corporation Ltd [1974] NSWLR 659;
Markarian v The Queen (2005) 79 ALJR 1048;
Mill v The Queen (1988) 166 CLR 59;
Mosman Municipal Council v Menai Excavations Pty Limited (2002) 122 LGERA 89;
Neal v R (1982) 149 CLR 305;
Newcastle City Council v Pepperwood Ridge Pty Ltd (2004) 132 LGERA 388;
Parker v DPP (1992) 29 NSWLR 282;
Pearce v The Queen (1998) 194 CLR 610;
Power v Penthill House Pty Ltd (1993) 80 LGERA 247;
R v A [2004] NSWCCA 292 (16 December 2004);
R v AEM Snr; KEM; MM [2002] NSWCCA 58 (13 March 2002);
R v Allpass (1993) 72 A Crim R 561;
R v Bahsa (2003) 138 A Crim R 245;
R v Cameron (2002) 209 CLR 339;
R v Carter [2001] NSWCCA 245;
R v Daetz (2003) 139 A Crim R 398;
R v Do [2005] NSWCCA 258;
R v Doan (2000) 50 NSWLR 115;
R v Dodd (1991) 57 A Crim R 349;
R v El Hani [2004] NSWCCA 162 (21 May 2004);
R v Frank Waqa (No 2) [2005] NSWCCA 33 (24 February 2005);
R v Gallagher (1991) 23 NSWLR 220;
R v H (1980) 3 A Crim R 53;
R v Henry (1999) 46 NSWLR 346;
R v Holder [1983] 3 NSWLR 245;
R v Kalache (2000) 11 A Crim R 15;
R v MacBain [2005] NSWCCA 358 (20 October 2005);
R v Markarian (2005) 79 ALJR 1048;
R v McGourty [2002] NSWCCA 335 (13 August 2002);
R v Murray, unreported, NSW Court of Criminal Appeal, 29 October 1997;
R v Nichols (1991) 57 A Crim R 391;
R v Oliver (1980) 7 A Crim R 174;
R v Rushby [1977] 1 NSWLR 594;
R v Sgroi (1989) 40 A Crim R 197;
R v Sharma (2002) 54 NSWLR 300;
R v Stahl [1997] NSWCCA 160 (26 March 1999);
R v Thomson; R v Houlton (2000) 49 NSWLR 383;
R v Wheeler [2000] NSWCCA 34 (16 February 2000);
Relic v DPP [2000] NSWCA 84 (26 April 2000);
Roos v DPP (1994) 34 NSWLR 254;
Sutherland Shire Council v Nustas [2004] NSWLEC 608 (3 November 2004);
Veen v R (No. 1) (1979) 143 CLR 459;
Veen v R (No. 2) (1988) 164 CLR 465;
Wong v R (2001) 207 CLR 584

DATES OF HEARING: 03/03/2006

DATE OF JUDGMENT:
05/10/2006

LEGAL REPRESENTATIVES: APPLICANT
Ms E Espinosa (solicitor)
SOLICITORS
Elizabeth Espinosa
RESPONDENT
Mr J Weller (solicitor)
SOLICITORS
Joe Weller

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

10 May 2006

60001, 60002 and 60003 of 2006

GITTANY CONSTRUCTIONS PTY LIMITED V SUTHERLAND SHIRE COUNCIL
JUDGMENT

1 HIS HONOUR: The appellant, Gittany Constructions Pty Limited, appeals against the severity of the sentences imposed by Magistrate P Lyon in three proceedings prosecuted by Sutherland Shire Council (“the Council”) in the Sutherland Local Court for contraventions of the Environmental Planning and Assessment Act 1979 (NSW) (“the EPA Act”). Appeal no 60001 of 2006 in this Court is in relation to Local Court proceedings no 1379971/05/172, appeal no 60002 of 2006 is in relation to Local Court proceedings no 137980/05/172 and appeal no 60003 of 2006 is in relation to Local Court proceedings 137998/05/172.

2 In each of those proceedings, the appellant pleaded guilty to three separate offences against s 125(1) of the EPA Act, that it carried out development that was not in accordance with the development consent granted by this Court in contravention of s 76A(1)(b) of the EPA Act. The three offences occurred on or about 9 August 2004 on a property at 54-62 Osprey Drive, Illawong (“the site”).

3 The offences involved the removal of trees and indigenous bushland from the western corner of the site. One of the offences involved the breach of a condition of development consent by failing to retain, protect and enhance the patches of indigenous bushland located in the western corner of the site and failing to retain and isolate all existing trees, shrubs, groundcovers and sandstone rock outcrops from all forms of building activities. The other two offences involved the breach of a condition of development consent by removing two Eucalyptus gummifera trees (commonly known as Red Bloodwood).

4 On 20 December 2005, the Local Court convicted the appellant as charged and sentenced it to pay a fine of $20,000 in relation to the indigenous bushland in Local Court proceedings no 137971/05/172 (LEC appeal no 60001 of 2006), and $5,000 in relation to each of the trees in Local Court proceedings no 137980/05/172 (LEC appeal no 60002 of 2006) and Local Court proceedings no 137998/05/172 (LEC appeal no 60003 of 2006). The Local Court also ordered the appellant to pay court costs of $65 and professional costs of $500.

The charges

5 The details of the offence are described in the Court Attendance Notices for each charge. In case no 137971/05/172, the description of the offence is as follows:

Description of Offence

Short Description: Development not carried out in accordance with consent

Time & Date of Offence: On or about 9 August 2004

Place of Offence: 54-62 Osprey Drive, Illawong

Short Particulars: The defendant company was the builder at property 54-62 Osprey Drive, Illawong (Lot 493 DP 752034) and breached development consent condition 60 in relation to Development Application 03/1179, Land & Environment Court Appeal proceedings no. 11034/03 by failing to retain, protect and enhance the patches of indigenous bushland located in the western corner of the site and failing to retain and isolate all existing trees, shrubs, groundcovers and sandstone rock outcrops from all forms of building activities. The unauthorised removal of the indigenous bushland is also in contravention of Sutherland Shire Council’s Tree and Bushland Vegetation Preservation Order.

Statutory Provision Describing Offence: section 76A(1)(b) and 125(1) Environmental Planning and Assessment Act 1979”.

6 In case no 137980/05/172, the description of the offence is as follows:

Description of Offence

Short Description: Development not carried out in accordance with consent

Time & Date of Offence: On or about 9 August 2004

Place of Offence: 54-62 Osprey Drive, Illawong

Short Particulars: The defendant was the builder at the property 54-62 Osprey Drive, Illawong (Lot 493 DP 752034) and breached development consent conditions 58 and 60 in relation to Development Application 03/1179, Land & Environment Court Appeal proceedings no. 11034/03 by removing tree number 188 as identified in the Tree Management Plan approved by Council. Tree 188 is a Eucalyptus gummifera (commonly known as Bloodwood) and was a healthy robust specimen that had a full canopy with a diameter of about 8m, an overall height of about 10m and a trunk diameter of about 360mm. The unauthorised removal of Tree 188 is also in contravention of Sutherland Shire Council’s Tree and Bushland Vegetation Preservation Order.

Statutory Provision Describing Offence: section 76A(1)(b) and 125(1) Environmental Planning and Assessment Act 1979”.

7 In case no 137998/05/172, the description of the offence is as follows:

Description of Offence

Short Description: Development not carried out in accordance with consent

Time & Date of Offence: On or about 9 August 2004

Place of Offence: 54-62 Osprey Drive, Illawong

Short Particulars: The defendant was the builder at the property 54-62 Osprey Drive, Illawong (Lot 493 DP 752034) and breached development consent conditions 58 and 60 in relation to Development Application 03/1179, Land & Environment Court Appeal proceedings no. 11034/03 by removing tree number 187 as identified in the Tree Report prepared by Mark Hanley. Tree 187 is a Eucalyptus gummifera (commonly known as Bloodwood) and was a healthy robust specimen that had a full canopy with a diameter of about 8m, an overall height of about 10m and a trunk diameter of about 340mm. The unauthorised removal of Tree 187 is also in contravention of Sutherland Shire Council’s Tree and Bushland Vegetation Preservation Order.

The offence provisions

8 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”.

9 In this case, the removal of the trees and bushland in the western corner of the site was in breach of both the conditions of the development consent, and the relevant tree preservation order for the local government area of Sutherland Shire Council, the Sutherland Shire Council’s Tree and Bushland Vegetation Order made under Sutherland Shire Local Environmental Plan.

10 On 28 January 2004, this Court in Class 1 appeal proceedings No 11034 of 2003 granted conditional development consent to DA 03/1179 for the demolition of existing structures and the erection of 14 two storey townhouses and 8 single storey villas with basement car parking: see Durward Pty Ltd v Sutherland Shire Council [2004] NSWLEC 12 (28 January 2004). The notice of determination of development application was subsequently issued on 3 February 2004 (“the development consent”) (Exhibit D).

11 The relevant conditions of the development consent that were breached by the appellant are conditions 58 and 60. Condition 58 provides:

Protection of trees and bushland

All trees/bushland areas shall be protected during construction. This includes provision of protective fencing, exclusion of storage materials from within the drip zone, erosion control and soil pH maintenance.

All trees and vegetation which are not expressly authorised by this development consent to be removed, damaged or interfered with shall be retained. Only trees and vegetation whose removal is expressly authorised by this development consent are permitted to be removed.”

12 Condition 60 provides:

General Landscaping Condition 2

The patches of indigenous bushland located in the eastern and western corners of the site shall be retained, protected and enhanced through additional planting. All existing trees, shrubs, groundcovers and sandstone rock outcrops shall be retained and isolated from all forms of building activities.’

13 The two Eucalyptus gummifera trees removed by the appellant were identified as trees 187 and 188. These trees had been marked for retention on the approved Landscape Concept Plan drawing No. LP 01 issue A prepared by Pittendrigh Shinkfield Bruce (“the landscape plan”) pursuant to conditions 1 and 5 of the development consent. Tree 187 was described as a healthy robust specimen that had a full canopy with a diameter of about 8m, an overall height of about 10m and a trunk diameter of about 340mm. Tree 188 was described as a Eucalyptus gummifera and a healthy robust specimen that had a full canopy with a diameter of about 8m, and overall height of about 10m and a trunk diameter of about 360mm: description of each offence in the Court Attendance Notice (Exhibit O).

14 The area in the western corner of the site was described to contain patches of indigenous bushland and existing trees, shrubs, groundcovers and sandstone rock outcrops: description of offence in the Court Attendance Notice (Exhibit O).

15 The unauthorised removal of the indigenous bushland and trees 187 and 188 was also in contravention of the Sutherland Shire Council’s Tree and Bushland Vegetation Preservation Order made under Sutherland Shire Local Environmental Plan 2000, the relevant environmental planning instrument (description of offences in Exhibit O). The Preservation Order prohibits, inter alia, the removal of trees and bushland covered by the Preservation Order without development consent. A failure to comply with the tree preservation order is a failure to comply with the environmental planning instrument, which in turn is a failure to comply with s 76A(1) of the EPA Act.

16 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”.

Appeals against the severity of sentence

17 The appellant instituted class 6 proceedings in this Court, appealing against the severity of the three sentences imposed by the Local Court.

18 An appeal against the severity of sentence 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 appeals were lodged on 11 January 2006, within 28 days of the imposition of the sentences by the Local Court, as required by s 31(2)(a) of the Review Act.

19 The appeals are 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. This Court may grant leave to adduce new evidence, but only if satisfied that it is in the interests of justice that fresh evidence may be given: s 37(2) of the Review Act.

Appeals are by way of rehearing

20 The nature of the rehearing required by s 37(1) of the Review Act is similar to what was required under s 5AA of the Criminal Appeal Act 1912 prior to its amendment in 2000.

21 In Cooper v Coffs Harbour Council (1997) 97 LGERA 125, an appeal under s 5AA of the Criminal Appeal Act 1912 was described as follows:

“…an appeal under s 5AA is not restricted to a determination of whether the decision of the Court below was infected with error. It is a rehearing on the evidence given before the trial Court.

The width of the Court’s 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. 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. 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.

Shortly after the decision in Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority was delivered, s 5AA was amended by substituting a recasting of subs 3 and the insertion of subs 3A. 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 court unless leave is given by this Court for fresh, additional or substituted evidence to be adduced.

Huntley Colliery Pty Ltd v State Pollution Control Commission,

Camilleri’s Stock Feeds Pty Ltd v EPA

Cliftleigh Haulage Pty Limited v Byron Shire Council

The evidence on the appeals

22 The appeal proceeded on transcripts of evidence in the original Local Court being:

a) the transcript of the hearing in the Sutherland Local Court on 20 December 2005 (Exhibit A);

b) an agreed statement of facts (Exhibit B);

c) the statement of Mr Greg Hughes dated 20 October 2005 (Exhibit C);

d) the determination of development application no DA 03/1179 issued by Sutherland Shire Council and dated 3 February 2004 (Exhibit D);

e) the ASIC company extract for Gittany Constructions Pty Limited dated 22 March 2005 (Exhibit E);

f) the property search of Lot 493 DP 752034 dated 8 March 2005 (Exhibit F);

g) the record of interview between Mr Greg Hughes and Mr Charles Gittany dated 3 September 2004 (Exhibit G);

h) the record of interview between Mr Greg Hughes and Mr Anthony Gittany dated 6 April 2005 (Exhibit H);

i) the job registration/project details between Gittany Constructions Pty Limited and Kari & Ghossayn Pty Limited (Exhibit J);

j) a one-page handwritten note by Mr Anthony Gittany, undated (Exhibit K);

k) a Tree Assessment Report prepared by Mr Paul Laverty dated November 2005 (Exhibit L);

l) a bundle of photographs of the site taken in August 2004, September 2004, and October 2005 (Exhibit M);

m) two aerial photographs of the site depicting the view before and after the conduct in question (Exhibit N); and

n) the three court attendance notices for the three separate offences issued by Sutherland Shire Council on 26 September 2005 (Exhibit O).

23 By consent, the parties sought leave under s 37(2) of the Review Act to tender a statement of further agreed facts dated 3 March 2006 (Exhibit R). The statement of further agreed facts related to an application made by the appellant company under s 96 of the EPA Act to modify the conditions of consent of DA 03/1179. The substance of the s 96 application is the submission of a new landscape plan addressing the replanting of the western corner of the site.

24 Under s 37(2) of the Review Act, the Court has the discretion to admit fresh evidence on the appeal if it is of the opinion that it is in the interest of justice that the fresh evidence be given. As the evidence of the s 96 application may be relevant to the determination of the appropriate sentence, I granted leave to admit the evidence.

25 The appellant also sought leave under s 37(2) of the Review Act to adduce fresh evidence comprised of:

a) 5 monthly billing statements issued by ING Bank for an account held in the names of Charles Gittany, Anthony Gittany, and Ibrahim Abbas. The 5 statements are for the period from 1 September 2005 to 31 January 2006; and

b) a bundle of documents consisting of two letters, a subpoena to give evidence issued to Mr Charles Gittany in the matter of Sutherland Shore Council v Kari & Ghossayn Pty Limited on 6 March 2006, and the statement of Mr Charles Gittany in relation to that matter dated 19 December 2005.

26 In relation to the ING bank statements, Mr Weller, solicitor for the appellant, submitted that the statements were relevant to a factor in sentencing, namely whether incurring an “extra-curial punishment” in the form of interest on a debt should be taken into account in determining the appropriate sentence.

27 Ms Espinosa, solicitor for the respondent, objected to leave being granted by the Court on two bases. First, on the basis that the statements on their face are not addressed to the appellant company but rather to persons who may be connected with the company and secondly, on the basis that the statements do not establish the financial position of those persons.

28 On consideration of the respective submissions, I granted leave to allow the ING bank statements to be admitted under s 37(2) of the Review Act, noting that the parties may further make submissions as to the relevance of the documents and the weight that should be given to them (Exhibit P).

29 In relation to the bundle of documents, Mr Weller submitted that the evidence should be admitted to establish the fact that Mr Charles Gittany was willing to give evidence to assist the Council in its prosecution of Kari & Ghossayn Pty Limited (“Kari & Ghossayn”). Kari & Ghossayn were contracted by the appellant to carry out excavation work on the site and have pleaded not guilty to the same three offences which the appellant company has been convicted of.

30 Mr Weller was not seeking to rely upon the statement of Mr Charles Gittany dated 19 December 2005 for evidence of the truth of the facts stated therein.

31 I granted leave under s 37(2) of the Review Act to tender the bundle of documents for the purpose of establishing that Mr Charles Gittany is willing to give evidence in the prosecution of Kari & Ghossayn, indicated both by the statement given on 19 December 2005 and the fact that he is prepared to attend Court on 6 March 2006 (Exhibit Q).

The incident and surrounding circumstances

32 On 27 April 2004, the two directors of the appellant company, Mr Charles Gittany and Mr Anthony Gittany, together with a third individual, Mr Ibrahim Abbas, purchased the property comprising Lot 493 in DP 752034, known as 54-62 Osprey Drive, Illawong (“the site”). Mr Charles Gittany and Anthony Gittany (being joint tenants between themselves) and Mr Ibrahim Abbas were tenants in common with a half share each: Title search (Exhibit F). It was a large residential lot containing one single dwelling. The site was purchased with the development consent attached to it. The appellant company is the developer of the site.

33 On purchase of the site, the trees to be retained as per the development consent including trees 187 and 188 were marked with tape, most likely by an arborist. The landscape plan was also marked to show the trees that were to be protected. The western corner of the site, including the indigenous bushland and the sandstone rock outcrops that were to be protected according to the development consent, were not protected with any type of physical barrier to isolate the area. Instead, a red and white sediment fence separated the area from the rest of the site: record of interview with Anthony Gittany dated 6 April 2005 at p. 4.

34 Sometime in the first half of 2004, the appellant company contracted Kari & Ghossayn to undertake excavation work in order to develop the site.

35 The only evidence tendered in relation to the contract was a one-page sheet of the contractor, Kari & Ghossayn, entitled “Job Registration/Project Details” (Exhibit J). The sheet stated, inter alia, the project address as 54 Osprey Drive, Illawong. The “client name” is given as “Sam Abbas” and the “contact name”, presumably of the client, also “Sam Abbas”. It is not clear who is Sam Abbas. There is a Mr Ibrahim Abbas, who is listed as holding a half share as tenant in common in the property, with Charles and Anthony Gittany as joint tenants holding the other half share. Mr Ibrahim Abbas is not listed as a director, secretary or shareholder of Gittany Constructions Pty Ltd, the appellant in this appeal. It is possible that Mr Ibrahim Abbas might be the “Sam Abbas” referred to in Kari & Ghossayn’s Job Registration Project Details sheet.

36 The sheet continues with some “project details”. The “nature of contract” is described as “site clearing and bulk excavation”. The starting date is 14 May 2004. The duration of the project is 2 weeks. The “original contract sum” is simply stated as “$32/m3”. This makes sense in relation to bulk excavation, but not site clearing. The foreman of Kari & Ghossayn is named only as “Sam”.

37 Prior to the commencement of the excavation work, Mr Charles Gittany (known as Charlie Gittany), a director of the appellant company, met with an individual called “Sam”, an employee of Kari & Ghossayn, and Paul Ryan at the site. It is not clear from the evidence whether Paul Ryan was also an employee of Kari & Ghossayn, but it is reasonable to so infer.

38 Mr Charlie Gittany provided Sam and Paul Ryan with a set of architectural and landscape drawings and showed the trees that had been marked which were to be retained: record of interview with Mr Charlie Gittany dated 3 September 2004 at p. 3 and handwritten statement of Mr Anthony Gittany (Exhibit K). Mr Charlie Gittany also showed the areas to be retained: handwritten statement of Mr Anthony Gittany (Exhibit K).

39 Kari & Ghossayn commenced the excavation work on 14 May 2004. On 31 May 2004, Kari & Ghossayn removed the western corner fence: handwritten statement of Mr Anthony Gittany (Exhibit K).

40 During the period of excavation, Mr Charlie Gittany travelled overseas, leaving Mr Anthony Gittany in control of the site as site foreman: records of interview with Mr Charlie Gittany (Exhibit G) and Mr Anthony Gittany (Exhibit H).

41 On 29 June 2004, a local resident, Mr Melville, wrote a letter to the Council regarding the excavation work that had been undertaken in the western corner of the site: p 1 of agreed statement of facts (Exhibit B).

42 On 10 August 2004, Council Officers Greg Hughes and Lucy Kilani inspected the site, took a number of photographs (Exhibit M) and observed that:

· only one tree remained in the western corner (tree 186 as identified on the landscape plan);

· trees 187 and 188 appeared to have been removed;

· rock outcrops appeared to have been removed;

· stockpiles and building material were stored in the western corner; and

· there was no evidence of any barriers/protective material to isolate the western corner: p 2 agreed statement of facts (Exhibit B) and para 2 Mr Hughes’ statement of evidence (Exhibit C).

43 The photographs (Exhibit M) graphically depict the scene as described by Mr Hughes. Apart from tree No 186, there is no vegetation or rock outcrops left. Excavations, excavated material and building materials cover the area of the western corner of the site.

44 On 31 August 2004, the site was further inspected by Council officers Greg Hughes, Adam Markham and Lucy Kiliani. They observed that the western corner had been further loaded with materials relating to the construction work and photographs were taken: p 2 of agreed statement of facts (Exhibit B) and para 3 of Mr Hughes’ statement (Exhibit C).

45 On 2 September 2004, Council Officers Greg Hughes and John Gilmore visited the site unannounced to interview Mr Charlie Gittany. Mr Charlie Gittany was not on site. Mr Greg Hughes telephoned Mr Charlie Gittany and arranged a meeting time for the following day: p 2 of agreed statement facts (Exhibit B) and para 3 of Mr Hughes’ statement (Exhibit C).

46 On 3 September 2004, Mr Greg Hughes and Mr John Gilmore met with Mr Charlie Gittany on the site and conducted an interview regarding the western corner of the site and suspected breaches of conditions 58 and 60 of the development consent. The interview was recorded by Mr Gilmore: para 5 of Mr Hughes’ Statement (Exhibit C). It was subsequently typed (Exhibit G). Mr Charlie Gittany and Mr Hughes signed the written record of interview on 7 September 2004, witnessed by Mr Gilmore: p 2 of agreed statement facts (Exhibit B) and para 6 of Mr Hughes’ statement (Exhibit C).

47 In the interview, Mr Hughes stated:

“OK, the west corner had three trees, some flora and some rocky sandstone outcrops that were to be retained. Now there seems to be only one tree and a huge stockpile. Why hasn’t the area been protected?”

48 Mr Charlie Gittany initially answered this question by only referring to the rocky outcrop. He said:

“The stone outcrop was at the stairs. I’ll show you”.

49 Mr Hughes declined the invitation of Mr Gittany to show him the stairs and asked a further question:

“…why did you not call the PCA [Principal Certifying Authority] and ask what to do to retain the items? It appears that you just did the work without any approval or request”.

50 Mr Charlie Gittany replied to this question:

“OK the trees were too close to the excavation so they went”.

51 Mr Hughes responded to this assertion:

“You should have consulted Council before removal. There were many reasons why the decisions to retain the area was required, as demonstrated by the alterations to the driveways etc…What about the flora?”

52 This reference to the “the flora” is evidently the indigenous bushland in the west corner of the site rather than the three numbered trees.

53 Mr Charlie Gittany replied:

“The stairs are there.”

54 Mr Hughes queried the plausibility of this answer stating:

“Yeah, but you have materials stored there. This is no protection in place as confirmed as there should be as detailed in the consent”.

55 Mr Charlie Gittany then seemed to change tack, saying:

“I don’t know about that. I didn’t put the DA through. We showed Sam (Foreman, Kari & Ghossayn) the rocks. I spoke with Paul Gerrin about it, but he said it was OK”.

56 The reference in the first sentence of Mr Charlie Gittany’s response to “that” is ambiguous. It probably refers to the consent referred to in the second sentence of Mr Hughes’ statement, and not the stored materials referred to in the first sentence of Mr Hughes’ statement. This is a logical inference to draw from Mr Charlie Gittany’s reference to “the DA”: that is to say, Mr Charlie Gittany was saying he didn’t know that there was no protection in place as required by the consent because he didn’t put the DA through. The reference to “DA” is probably a reference to the consent in the sense of development approval, rather the development application. By itself this statement would be an incomplete answer. Even if a person does not lodge a development applicant, the person can still read, understand and implement any development consent that might be issued in response to a development application by whomsoever lodged. Hence, to be a complete response, it would be necessary to infer that Mr Charlie Gittany was also meaning by his answer to say that he didn’t know that the consent detailed a requirement that protection be in place for the flora and rock outcrops.

57 However, the second and third sentences of his response would seem to be inconsistent with Mr Charlie Gittany not knowing that the consent required, at the least, the rocks to be protected. It is logical to infer that the reason why Mr Gittany showed Sam the rocks and “spoke with Paul Gerrin about it” is that he knew the rocks were required to be protected.

58 The statement that Paul Gerrin “said it was OK” should be understood as meaning “it was OK to remove the rocks”. This is made clearer by the subsequent exchange between Mr Hughes and Mr Charlie Gittany recorded in the record of interview:

“ G Hughes : In relation to the excavation to the stairs, the difficulties you discussed may have been considered in consultation with Council, but there is still the fact that you have stored the materials there. I know that the building footprint is on the plan and is shown to be in close proximity to the items to be protected, but there must have been some consideration when doing this. (G Hughes shows Consent Condition 60 of the consent to Charlie). So what you are saying is that the excavators compromised the rock outcrop. What did Paul Gerring say?

Charlie : Paul Gerrin said it was OK to go ahead.

G Hughes : Has any of the outcrop been retained?

Charlie : No, we couldn’t retain it

G Hughes : So the whole outcrop is gone?

Charlie

59 From these answers, the Court can infer that Mr Charlie Gittany had knowledge that “the rocks” and “the rock outcrop” were required to be retained but that because Mr Paul Gerrin said it was OK to go ahead and remove the rocks or the rock outcrop, they were therefore removed notwithstanding the requirement that they be retained.

60 Mr Hughes then turned to asking Mr Charlie Gittany about the use of the area from which the whole outcrop had been removed, as a stockpile area. The following exchange occurred:

“ G Hughes : So now you are using it as a stockpile area?

Charlie : Yeah, but we are prepared to replace the trees removed, we want them to be kept, it costs us to remove them.

G Hughes : Did you give directions to the excavator to store the materials there?

Charlie : I was overseas.

G Hughes : OK, but your brother Tony was in charge, did he give the instruction?

Charlie

61 Mr Hughes returned to asking Mr Charlie Gittany for the reasons for not protecting the area that was required to be protected by the consent. As the following exchange reveals, Mr Charlie Gittany replied by referring only to the trees in the area:

“ G Hughes : OK, but why wasn’t the area protected? You didn’t have any protection in place?

Charlie : No. But we will replant any trees we remove. You have to be practical.

G Hughes : OK, but I still think you should have brought this to the attention of the PCA and Council so as to find a compromise. You can’t just cut down trees without approval.

Charlie : Oh, but we left other trees we didn’t have to.

G Hughes : OK, but you didn’t comply with what you were meant to do in relation to the consent. You claim that the excavator was told by yourself to do the work, but not necessarily to place the spoil to that area.

Charlie : I gave Kari Ghossain [sic] the plans to use, but Kari Ghossain took down the trees of their own accord.

G Hughes : OK, well they shouldn’t have and you couldn’t give the go ahead to remove without approval. We will have to assess the area in relation to your claim regarding the trees within the excavated footprint that were removed in consultation with the approved plans. So you say that Kari Ghossain had the plans and know that the west corner was to be retained.

Charlie : Yeah, I told Sam from Kari Ghossain to keep the trees.

G Hughes : So he was aware of the requirements, did you give him written instructions?

Charlie : Nah, I gave him the plans and told him what to do. Then one day when I came, the Kari Ghossain foreman said the trees had to go (trees were already removed).

G Hughes : The plans show these trees near the stairwell, which tree did you retain?

Charlie : (Looking at the plans pointing to rock shelf and trees to be retained in relation to the building footprint). How do you achieve this? We are happy to replace them. We have saved and relocated some of the rocks, we can put them back.

G Hughes : Look, that will be up to the responsible officer to assess and determine.

Charlie

62 The “Sam from Kari Ghossain” is presumably the “Sam” nominated as the “foreman” of Kari & Ghossayn in its Job Registration/Project Details Sheet.

63 Again, this exchange reveals that Mr Charlie Gittany had knowledge of the requirement of the consent to retain the trees and according to him gave Sam from Kari & Ghossayn the plans and told him “what to do”, namely, “to keep the trees”. But because Paul Gerrin said “it is in the building line so it is OK to remove”, the trees were removed.

64 In fact, the trees and the area to be protected were not in the building line but outside it. Nevertheless, it seems that Mr Charlie Gittany considered that it was not “practical” to retain the trees and rocks.

65 The Council officers issued instructions to Mr Charlie Gittany to remedy the site by the removal of material from the areas that were to be protected and to provide tree protection: p 3 of Exhibit G.

66 On 21 December 2004, Greg Hughes attended the site with the Council’s landscape architect, John Smith. They observed that the western corner of the site was still loaded with materials relating to the construction work: p 2 of agreed statement of facts (Exhibit B). All the existing native shrubs and rock outcrops had been compromised by the activities carried out in the area: para 7 of Mr Hughes’ statement (Exhibit C).

67 On 31 March 2005, Greg Hughes spoke with Mr Paul Gerrin, a representative of Inspec, the Principal Certifying Authority (“PCA”). Mr Gerrin advised that at no time did he give any directions to remove any trees or rock outcrops that were identified to be retained on the approved landscape plan: p 2 of agreed statement of facts (Exhibit B).

68 On 6 April 2005, Greg Hughes and John Gilmore met with Mr Anthony Gittany (known as Tony Gittany) on site to conduct an interview. The interview was recorded by Mr Gilmore: para 9 of Mr Hughes’ statement (Exhibit C). It was subsequently typed (Exhibit H). Mr Tony Gittany and Mr Hughes signed the written record of interview on 20 April 2005, witnessed by Mr Gilmore: p 3 of agreed statement of facts (Exhibit B) and para 10 of Mr Hughes’ statement (Exhibit C).

69 Mr Tony Gittany stated that his role on site was to be “in charge while Charlie was overseas”. His role was “site foreman”.

70 Mr Hughes asked about Mr Tony Gittany’s knowledge of the consent:

“ Greg Hughes : Do you understand the requirements of the Consent Conditions, DCP’s and other regulations that give you permission to work at 54-62 Osprey Dr, ILLAWONG? Have you made yourself aware of the consent conditions for DA 03/1179 for 54-62 Osprey Dr ILLAWONG?

Tony Gittany

71 The reference to “the DA” is evidently the development approval or consent. Mr Hughes showed Mr Tony Gittany conditions 58 and 60 of the consent and asked:

“ Greg Hughes : Have you made yourself aware of Consent Conditions 58 and 60? SHOW THEM CONSENT CONDITIONS.

Tony Gittany

72 The first part of the response, “yes”, shows that Mr Tony Gittany was aware of conditions 58 and 60. The second part of the response led to the following semantic discussion as to whether the vegetation on the site were trees or just shrubs:

“ Tony Gittany : Yes, but there were no trees.

Greg Hughes : There are trees shown on the plan.

Tony Gittany : Nah, there were just shrubs, not trees.

Greg Hughes : But they are marked.

Tony Gittany : Most of the trees were cut down before I got to site. Kari Ghossain [sic] must have removed them, you know, they were getting deliveries and excavators delivered there (to the western corner).

Greg Hughes : Did Kari Ghossain have a copy of these plans.

Tony Gittany

73 Mr Hughes then asked particularly about condition 60 (which concerned the indigenous bushland and rock outcrops):

“ Greg Hughes : Reads out condition 60 and asks if it was understood that this related to that area.

Tony Gittany : Yes, I spoke to Council guys. One of the Council guys came over and said that we could fix up the site when we had done the works. We have sewer and excavation works in the area (show on plans).

Greg Hughes : (tracks works on plan with finger) These works don’t seem to be in the area defined to be undisturbed. What type of machines were used?

Tony Gittany : A 30 Tonne excavator.

Greg Hughes : I don’t think a 30 tonner would have been required to do trench work in the area. Can you explain why the whole area was compromised?

Tony Gittany

74 The last answer reveals that notwithstanding the sewer and excavation works, the area the subject of condition 60, could have been retained.

75 Mr Hughes then returned to the issue of tree protection, which was dealt with in condition 60. The following exchange occurred:

“ Greg Hughes : You understand the plans in relation to tree protection?

Tony Gittany : Yes (T. Gittany then explains the legend to the plans and explains which trees are to be retained).

Greg Hughes : So all of these trees to be retained were tagged.

Tony Gittany : Yes.

Greg Hughes : Who marked the trees?.

Tony Gittany

76 This exchange establishes that Mr Tony Gittany was aware of the consent requirement to retain the trees and was able to identify the trees on the plan. He was aware that the trees to be retained were marked with tags.

77 Mr Hughes then dealt with the removal of the trees that were required to be retained. The following exchange took place:

“ Greg Hughes : So who would have given the instruction to remove the trees? Would it have been you or Charlie?

Tony Gittany : No, we only would have after we were given the OK from Council. We never do anything unless we go to Council and ask if it was OK.

Greg Hughes : Can you give evidence of who gave the OK to remove the trees.

Tony Gittany : Yes, I’ll send it to you.

Greg Hughes : Do you know why they were given the OK to [be] removed?

Tony Gittany : For safety reasons, the over excavation for retaining walls, you have to over excavate so that you can get in to build the wall. They are unsafe, they could have fallen on the workers.

Greg Hughes : OK, so you gave instructions to the arborist on Council’s OK.

Tony Gittany : Yes.

Greg Hughes : Was the PCA or Council informed that the trees were to be removed?

Tony Gittany

78 In this exchange Mr Tony Gittany asserts that the reason for the removal of the trees was the safety of the workers and that the Council gave the OK to remove the trees.

79 The next topic discussed in the interview was the requirement for protection of the rock outcrop (in condition 60). The following exchange occurred:

“ Greg Hughes : Were the rock outcrops identified and protected by any means of barriers such as barrier tape to identify them as being retained?

Tony Gittany : No, no barriers, we had no tape to show the rocks.

Greg Hughes : So how was it protected?.

Tony Gittany : We had red silt fence.

Greg Hughes : So you had no physical barriers to say, “don’t come in here”.

Tony Gittany : No, I don’t think so. But we had red sediment fence to stop people.

Greg Hughes : Any evidence to support that you had isolated the area?

Tony Gittany : No, only the red and white sediment fence to isolate the area and to stop people coming in.

Greg Hughes : So the red and white sediment fence was the only isolation?

Tony Gittany : Yes, Kari Ghossain [sic] must have removed it with their machines.

Greg Hughes : So you allege that the red and white sediment controls were used as your barrier and this was removed by Kari Ghossain?

Tony Gittany

80 There then followed a discussion on the removal of the outcrops:

“ Greg Hughes : Who removed the rock outcrops from the western corner?

Tony Gittany

81 Mr Hughes then asked about the area generally (the subject of condition 60):

“ Greg Hughes : You do realise that that area was not to be touched, and that although you have suggested that you will rectify the area at a later date, the emphasis is on the fact that you shouldn’t have accessed the area at all.

Tony Gittany : Yes, I understand that.

Greg Hughes : So if an instruction was issued to use that area of land, who would have issued that instruction, you or Charlie?

Tony Gittany : Yes {Response given, no clarification given}.

Greg Hughes : Was the PCA or Council informed that the trees were to be removed?

Tony Gittany : Yes, we were told to do so by the Council. The PCA said that there were [sic] work in the area and they were no good to keep. When we commenced, we barricaded the site. Other people were working in the area. You know, they had to get their heavy vehicles delivered on site and that was the best spot.

Greg Hughes : So why didn’t you or Charlie issue instructions not to go in there?

Tony Gittany

82 This exchange establishes that Mr Tony Gittany was aware of this consent requirement not to access the area at all. However, notwithstanding he was the site foreman, he considered he “can’t just tell people what to do” or “can’t control what happens on site”.

83 Mr Hughes asked Mr Tony Gittany about the use of the area for storage of building materials and the stockpiling of excavated material:

“ Greg Hughes : Who gave directions to use the western corner for the storage of building materials and the stockpiling of excavated materials.

Tony Gittany

84 Finally, another Council officer, Mr John Gilmore, who had been recording the interview referred to the fact that there was still no protection or isolation of the area:

“ John Gilmore : I would like to ask if that is so, why is there still no protection or isolation to the area and why was there a bobcat working within millimetres of the tree yesterday?

Tony Gittany : I don’t know. I haven’t been on site. I will reinstate the protection however.

Greg Hughes : This is a sensitive area and the DA has stated this is to be considered.

Tony Gittany

85 The statement of Mr Tony Gittany that he didn’t know what was in the DA is inconsistent with his earlier answers in relation to conditions 58 and 60 and the plans and the requirements therein to protect trees, outcrops and the area of the western corner of the site.

86 Subsequent to the interview, Mr Tony Gittany forwarded a handwritten and signed statement providing further information on matters he was unable to provide in the interview (Exhibit K). This statement said:

“As per conversation discussed on site and over the phone, below are instructions and details of construction at number 54 Osprey Drive, Illawong.

- On purchase of site. All trees to be retained were marked by Stuart + Arborist. Tape was put around trunk of remaining trees and D.A. Drawing was marked, along with landscape and c.c. [construction certificate] drawing.

- Before commencement on project Charlie Gittany met with Paul Ryan and Sam from Kari & Ghassan [sic].

- A set of Architectural and landscape drawings were given to Paul Ryan. Charlie also showed Paul all marked trees and areas to be retained.

- Paul agreed with confidence.

- The western corner fence was removed by Sam from Kari & Ghassan on the 31-5-04 so they can have a larger turn circle for trucks.

- No instruction was given for these actions for area was not to be disturbed.

87 The “Sam from Kari & Ghassan” is presumably the Sam nominated as the foreman in Kari & Ghossayn Job Registration/Project Details” sheet. Paul Ryan is presumably also from Kari & Ghossayn.

88 It is to be noted that Mr Tony Gittany states that Mr Charlie Gittany gave a set of architectural and landscape drawings to Mr Paul Ryan but does not state than Mr Charlie Gittany gave Sam from Kari & Ghossayn Pty Ltd a copy of those plans (as Mr Charlie Gittany has said he did).

89 Another point to note about Mr Tony Gittany’s statement is that he now gives as the reason for the removal of the “western corner fence”, which presumably is the red and white sediment fence referred to by him in the earlier interview with Mr Hughes, the need to “have a larger turn circle for trucks”.

90 Mr Tony Gittany did not continue to assert, or provide any evidence in support of the assertion that he made in the earlier interview, that they were given the OK from Council to remove the trees.

91 On 7 April 2005, Greg Hughes spoke with Mr Vic Lilly of DLM Consulting Pty Limited. Mr Lilly advised that at no time did give any directions to remove any trees or rock outcrops that were identified to be retained on the approved landscape plan: p 2 of agreed statement of facts (Exhibit B).

92 On 10 October 2005, Mr Hughes inspected the site and observed that the works had been completed and the western corner had been landscaped. The landscaping appeared to be spare and planted out with young saplings and shrubs: para 11 of Mr Hughes’ statement (Exhibit C).

93 On 11 November 2005, a consulting arborist, Mr Paul Laverty, who had been engaged by the appellant, inspected the remaining tree No 186, also a Eucalyptus gummifera (Red Bloodwood). He found the tree to have been damaged by having its bark ripped off from below ground level on the west side to a height of around 1.7m. The wound appeared to have been caused by impact from machinery. The basal flare of the trunk was buried by about 200-250mm due to recent landscape works. A high amount of kino or resin was bleeding from almost all of the trunk wound area. Mr Laverty considered the tree would remain in a stressed condition for several months at least. He made recommendations for remedial action: pp 2, 3 of Tree Assessment Report (Exhibit L).

94 On or about a date in mid December 2005, the appellant company lodged an application under s 96 of the EPA Act to modify the conditions of consent of DA 03/1179. The substance of the s 96 application is the submission of a new landscape plan specifically addressing replanting in the western corner of the site as specified in condition 60 of DA 03/1179. The new landscape plan was prepared in consultation with an Environmental Assessment Officer employed by Sutherland Shire Council: further agreed facts dated 3 March 2006 (Exhibit R).

The sentences imposed by the Local Court

95 The appellant company first appeared before Sutherland Local Court on 25 October 2005. On that date, Mr Weller indicated to the Registrar that the appellant company would enter a plea of guilty. The plea was formally entered on the first appearance before Magistrate Lyon on 20 December 2005.

96 The matter was heard on that day, 20 December 2005. Magistrate Lyon delivered an ex tempore judgment. Magistrate Lyon referred to the following factors relevant to sentencing:

a) the maximum statutory penalty of $1.1 million for offences under the EPA Act and the jurisdictional limit of $110,000 in the Local Court: transcript of Local Court hearing dated 20 December 2005 at p 4.

b) the reasons for committing offence were that it was practical and expedient to clear the area: transcript of Local Court hearing dated 20 December 2005 at pp 3-4;

c) the need for public deterrence, particularly given the prevalence of builders taking shortcuts to save money. Magistrate Lyon referred to a purpose of sentencing being to “deter others out there that should you be bold enough to go ahead and behave in this sort of conduct the Courts don’t treat these matters lightly”: transcript of Local Court hearing dated 20 December 2005 at p 4;

d) the fact that Charles Gittany gave a statement and was prepared to give evidence for the Council in proceedings against Kari & Ghossayn, indicating cooperation with authorities: transcript of Local Court hearing dated 20 December 2005 at pp 2-3.

e) the fact that the appellant had no prior convictions: transcript of Local Court hearing dated 20 December 2005 at p. 4; and

97 Magistrate Lyon determined that the appropriate sentence was a fine in the amount $20,000 in respect of the offence for the indigenous bushland and rock outcrops, and, $5,000 for each of the two tree numbers 187 and 188, totalling $30,000: transcript of Local Court hearing dated 20 December 2005 at p 4.

The appellant’s submissions

98 Mr Weller, solicitor for the appellant company, submitted that the sentence imposed by the Local Court was too severe. Mr Weller made the following submissions in chief:

Extra-curial punishment

b) Environmental harm : The description of the two trees cleared, trees 187 and 188, in the description of the offences in the Court Attendance Notices are particular as to the species, height and dimensions of the trees. The appellant’s pleas of guilty admits these facts: Transcript of 3 March 2006, p 10. However, the description of the area in the western corner of the site in the description of the offence in the other Court Attendance Notice has no such particularity. The other evidence tendered does not establish whether the area, and in particular the sandstone rock outcrop in the area, were of significance: Transcript 3 March 2006, p 10. Nor is there evidence of the significance of the patch of indigenous bushland: pp 24-25 of transcript of 3 March 2006. The aerial photograph taken before the event does not identify the particular environment on the site: pp 51, 52 of transcript of 3 March 2006. The photographs taken by Council officers show the western corner after the event, but do not assist in understanding what was there before the event: pp 54, 57 and 58 of transcript of 3 March 2006.

Even handedness

Ku-ring-gai Council v Nettcorp Pty Ltd

Sutherland Shire Council v Nustas

d) Early plea of guilty : The appellant company pleaded guilty at the first available opportunity. On the first return date, 25 October 2005, the appellant through Mr Weller, indicated to the Registrar that there would be a plea of guilty. The plea of guilty was entered at the hearing on sentencing on 20 December 2005: pp 11, 12 of transcript of 3 March 2006.

e) Co-operation with authorities : Both Charles Gittany and Anthony Gittany were “frank, honest and forthcoming and in effect, readily admitted the culpability of the corporation”: p 11 of transcript of 3 March 2006. A director of the appellant, Mr Charlie Gittany, is willing to give evidence in prosecution proceedings against the contractor, Kari & Ghossayn Pty Ltd. He has given a statement of evidence. He has been subpoenaed to give evidence in accordance with that statement (Exhibit G): p 13 of transcript of 3 March 2006.

f) Taking of reasonable precautions: The appellant company, through its director Mr Charlie Gittany, took reasonable precautions to comply with the development consent by showing Kari & Ghossayn the trees and area to be protected. In addition, the trees to be protected were tagged. This indicates the appellant was seeking to prevent the destruction of the trees: pp 19-21 of transcript of 3 March 2006.

g) The totality principle : Application of the totality principle ought to reduce the overall penalty for the three offences: p 26 of transcript of 3 March 2006.

h) No prior convictions : The appellant company has no prior convictions: pp 28, 31 of transcript of 3 March 2006.

Reparation for harm

The respondent’s submissions

99 Ms Espinosa, solicitor for the Council, submitted:

(a) Offences serious : Cumulatively, the removal of trees 187 and 188 and the removal of the rocky outcrop and area which was specifically identified by a condition consent to be quarantined were serious and justified the penalty imposed by the Local Court: p 35 of transcript of 3 March 2006;

(b) Inadequate precautions taken : The appellant took some precautions but they were simply not enough. The precautions were limited to the tagging of the trees, apparently done by the landscaper. It seems there was never any intention to isolate and protect the western corner as required; the red and white sediment fence was not sufficient to isolate and protect the area as required. Mr Tony Gittany (the site foreman at the time) was poorly informed as to his obligations and poorly informed as to the condition of the site: pp 44, 45 and 47 of transcript of 3 March 2006.

(c) Although there is evidence that plans were shown or given to Kari & Ghossayn Pty Ltd, there is no evidence that the development consent conditions were given to them or that they had the benefit of reading conditions 58 and 60 or any of the other conditions: p 48 of transcript of 3 March 2006.

(d) Lack of control : The appellant failed to exercise sufficient control over the contractor: p 46 of transcript of 3 March 2006.

(e) Environmental harm : There is evidence of environmental harm. The aerial photographs depicting the site before and after show the extent of damage (Exhibit N). The photographs taken by the Council officers in August and September 2004 and October 2005 show the damage to the western corner in what should otherwise have been a quarantined area of remnant bushland with sandstone rocky outcrops: p 47 of transcript of 3 March 2006.

Even-handedness

Eurobodalla Shire Council v Wheelhouse

Purposes of sentencing

100 Section 3A of the Crimes (Sentencing Procedure) Act 1999 provides that the purposes of imposing a sentence on an offender include:

“(a) to ensure that the offender is adequately punished for the offence;

(b) to prevent crime by deterring the offender and other persons from committing similar offences;

…

(g) to recognise the harm done to the victim of the crime and the community”.

101 The sentence of the Court is a public denunciation of the conduct of the offender. The sentence must ensure that the offender is held accountable for his or her actions and is adequately punished or given his just deserts. The sentence must deter the offender from committing similar crimes in the future. This is important for persons such as the appellant who are likely to carry out development in the future in accordance with development consents that contain conditions intended to protect the environment.

102 Most importantly, the sentence of the Court needs to operate as a powerful factor in preventing the commission of similar crimes by persons who might be tempted to do so by the prospect that, if they are caught, only light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597. This is particularly so in the context of unlawful development, having regard to the policy considerations articulated in a number of cases including Mosman Municipal Council v Menai Excavations Pty Limited (2002) 122 LGERA 89 and Carlino v Leichhardt Municipal Council [2005] NSWLEC 198 (27 April 2005).

103 For environmental offences, the purpose of sentencing of general deterrence is of central importance. Many of the cases in which courts have so stated are set out in the judgment in Cameron v Eurobodalla Shire Council [2006] NSWLEC 47 (13 February 2006) at [59], [71]-[80]. See also 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] and Byers v Leichhardt Municipal Council [2006] NSWLEC 82 (13 February 2006). Persons will not be deterred from committing environmental offences by nominal fines: Environmental Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 at 354; Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (13 February 2006) at [139]-[142], [150], [151] and Eurobodalla Shire Council v Wheelhouse [2006] NSWLEC 98 (6 February 2006) at [17].

104 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]; Cameron v Eurobodalla Shire Council [2006] NSWLEC 47 (13 February 2006) at [72] and Byers v Leichhardt Municipal Council [2006] NSWLEC 82 (13 February 2006) at [83], [85].

105 If development consent has been obtained, as in this case, it is also integral to the planning system that the conditions of consent are complied with: Carlino v Leichhardt Municipal Council [2005] NSWLEC 198 (27 April 2005) at [32].

106 In Carlino v Leichhardt Municipal Council [2005] NSWLEC 198 (27 April 2005), the offender had demolished a stone retaining wall in contravention of conditions of development consent granted by this Court. Such conduct 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. As in the case at hand, the offender then 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”:

Axer Pty Limited v Environment Protection Authority

Camilleri’s Stock Feeds Pty Ltd

Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay)

Axer

Walden v Hensler

Mosman Municipal Council v Menai Excavations Pty Limited

Keir v Sutherland Shire Council

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

Keir

Approach to sentencing

107 A basic principle of sentencing law is that the sentence imposed by the Court for each offence must reflect and be proportionate to both the objective circumstances of the offence and the personal or subjective circumstances of the defendant: Veen v R (No. 1) (1979) 143 CLR 459 at 490 and Veen v R (No. 2) (1988) 164 CLR 465 at 472.

Objective gravity of the offences

108 The primary factor to consider is the objective gravity or seriousness of each offence: Lawrenson Diecasting Pty Ltd v Workcover Authority of New South Wales (Inspector Ch’ng) (1999) 90 IR 464 at 474, 475 and Fletcher Construction Australia Limited v Workcover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 77-80.

109 The objective gravity or seriousness of the crimes fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit because a sentence should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances: Veen v R (No 2) (1998) 164 CLR 465 at 472, 485-486, 490-491, 496; Hoare v The Queen (1989) 167 CLR 348 at 354. It fixes the lower limit because allowance for the subjective factors of the case, particularly of the offender, cannot produce a sentence which fails to reflect the objective gravity or seriousness of the offence: R v Dodd (1991) 57 A Crim R 349 at 354; R v Nichols (1991) 57 A Crim R 391 at 395; R v Allpass (1993) 72 A Crim R 561 at 563; R v Murray, unreported, NSW Court of Criminal Appeal, 29 October 1997, pp 6-7 per Barr J with whom Newman J agreed.

110 In determining the objective gravity or seriousness of the offences, the circumstances of the offences in this case to which the Court may have regard include:

(c) the appellant’s state of mind in committing the offences; and

(d) the appellant’s reasons for committing the offences.

The maximum penalty

111 The maximum statutory penalty is of great relevance in determining the objective gravity of the offence. As was stated in Camilleri’s Stock Feeds Pty Limited v Environment Protection Authority (1992) 32 NSWLR 683:

R v H

R v Oliver

Gibson v The Queen

Capral Aluminium Ltd v WorkCover Authority of NSW

Markarian v The Queen

112 The maximum penalty for each offence under the EPA Act is 10,000 penalty units: s 126(1) of the EPA Act. This equates to a maximum penalty of $1,100,000 for each offence, as a penalty unit is equal to $110: s 17 of the Crimes (Sentencing Procedure) Act 1999 (NSW). This shows the extreme seriousness with which Parliament views offences against the EPA Act.

113 However, because proceedings were commenced in the Local Court, a jurisdictional limit of 1,000 penalty units or $110,000 applies: see s 127(3) of the EPA Act.

114 Notwithstanding this jurisdictional limit, the maximum penalty for an offence against the Act remains $1,100,000. In R v Doan (2000) 50 NSWLR 115, Grove J 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”: at 123.

Ebacarb Pty Limited v Environment Protection Authority

Carlino v Leichhardt Municipal Council

Objective harmfulness of the appellant’s actions

115 The objective harmfulness of the appellant’s actions is relevant to determining the seriousness of the offences. In Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683, Kirby P stated that:

“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”: at 701.

116 Trees 187 and 188 were of an indigenous species, Eucalyptus gummifera. They were both healthy, robust specimens, of about 10m in height and with a full canopy of about 8m. It is reasonable to infer from the facts that they were required to be retained in the landscape concept plan by conditions 5 and 58 of the development consent that the trees were of value. The value can also be inferred from the fact that they were protected by the Council’s Tree and Bushland Vegetation Preservation Order.

117 The western corner of the site contained patches of indigenous bushland and existing trees, shrubs, groundcovers and sandstone rock outcrops. The plea of guilty to the offence involving the removal of these items admits this fact. The aerial photograph before building activity commenced on the site reveals that there was some vegetation, although the precise composition is not able to be discerned. Coupled with the admitted fact, it is reasonable to infer it is indigenous vegetation. The admissions in the records of interview by Mr Charlie Gittany and Mr Tony Gittany also establish that there were trees, flora and sandstone rock outcrops in the area.

118 Again, it is reasonable to infer that the indigenous bushland and the existing trees, shrubs, groundcovers and sandstone rock outcrops in the western corner of the site were of value from the fact that they were particularly identified and made the subject of a condition of consent that they be retained, protected and enhanced (condition 60). The value can also be inferred from the fact that the indigenous bushland was protected by the Council’s Tree and Bushland Vegetation Preservation Order.

119 The building activities considerably altered the site. Trees 187 and 188 were totally removed. Whatever indigenous bushland, existing trees, shrubs, groundcovers and sandstone rock outcrops that were in the western corner of the site, were totally removed except for one lone tree, tree 186, which was also required to be retained and protected. Even it was damaged by the building activities, suffering wounding to the bark, burial of the basal flare of the trunk and stress.

120 The western corner of the site was excavated, had stockpiles of excavated material and was used for the storage of building materials. No sandstone outcrops were retained in situ. The aerial photograph taken after the building activities had cleared the site (Exhibit N), depicts a denuded site except for the remaining tree 186. The photographs of the Council officers (photographs 1-5 taken on August 2004, photographs 3-6 taken on 30 August 2004 and photographs 1-3 taken on 1 September 2004 (Exhibit M)) show the considerable extent of building activities carried out in the western corner of the site, the very area which was to have been isolated from all forms of building activities. The photographs depict extensive excavations, large piles of excavated material, some of a height greater than persons standing and a car and a bobcat parked in the photographs, stacks of pallets, pipes, concrete blocks and other building materials, and rubble.

121 The building activities in and around the western corner of the site were of such magnitude that it can be concluded that the natural environment in and around that area, and each of the components of it, intended to be retained and protected by conditions 58 and 60 have been removed.

122 Having regard to the above matters, the damage caused by the offences can be considered substantial and an aggravating factor to be considered in determining the appropriate sentence: s 21A(2)(g) of the Crimes (Sentencing and Procedure) Act 1999. The absence of evidence of the precise details or composition of the indigenous bushland or the existing trees, shrubs, groundcovers and sandstone rock outcrops in the western corner of the site does not preclude such a finding. I reject the appellant’s submission to that effect. Obviously if such evidence were to have been available, a more complete understanding of the significance of that natural environment and its components may have been possible. However, it is sufficient, in order to make the finding that the damage was substantial, to know details of two of the trees, trees 187 and 188, and that the western corner of the site contained indigenous bushland and existing trees, shrubs, groundcovers and sandstone rock outcrops worthy of protection, retention and enhancement, and that the commission of the offences has resulted in the total removal of these components of the natural environment.

The appellant’s state of mind

123 The offences against s 125(1) of the EPA Act committed by the appellant are strict liability offences and hence mens rea is not an element of the offence: Power v Penthill House Pty Ltd (1993) 80 LGERA 247 at 253. Nevertheless, the state of mind of an offender at the time of the offence can have the effect of increasing the seriousness of the crime. A strict liability offence that is committed intentionally will be objectively more serious than one which is committed unintentionally or non-negligently: Majury v Sunbeam Corporation Ltd [1974] NSWLR 659 at 664; Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 700; Environment Protection Authority v Hochtief AG [2006] NSWLEC 200 (28 April 2006) at [99].

124 Two directors of the appellant, Mr Charlie Gittany and Mr Tony Gittany, together with Mr Ibrahim Abbas, purchased the site after the development consent had been granted. The appellant was engaged to carry out the development the subject of the consent.

125 The appellant, being a company, can only act through natural persons. Here, the directing mind and will of the corporation is to be found in the knowledge and actions of the two directors, Mr Charlie Gittany and Mr Tony Gittany.

126 Notwithstanding some comments by each director about them not obtaining the development consent, they were evidently aware of its terms. Indeed, the carrying out of the development would have been impossible without careful consideration of the consent.

127 Mr Charlie Gittany knew about:

(a) The trees and the requirement to retain the trees: he said he gave Kari & Ghossayn the plans to use and told Sam from Kari & Ghossayn to keep the trees. He showed Paul Ryan all marked trees and areas to be retained.

164 Again, the appellant’s willingness to assist the authorities may form a complex of inter-related considerations with its plea of guilty and expressions of contrition and remorse: R v Gallagher (1991) 23 NSWLR 220 at 228. The factor of willingness to assist with authorities may be included as part a single combined discount reflecting a guilty plea, contrition and remorse and co-operation with authorities: R v Thomson (2000) 49 NSWLR 383 at 419 [160] R v El Hani [2004] NSWCCA 162 (21 May 2004) at [65]-[69], R v A [2004] NSWCCA 292 (16 December 2004) at [27] and R v Frank Waqa (No. 2) [2005] NSWCCA 33 (24 February 2005) at [14], [21] and [24].

165 The assistance relied on by the appellant in this case is of the kind most commonly encountered. The appellant, upon being caught by the Council having committed the offences, provided assistance by its directors, Mr Charlie Gittany and Mr Tony Gittany, agreeing to be interviewed about the offences and by Mr Tony Gittany providing an additional statement requested in the interview. Through the same process, the directors of the appellant revealed the identity of the contractor who carried out the site clearing and bulk excavation, namely Kari & Ghossayn. Mr Charlie Gittany has agreed to assist further by giving a statement of the evidence he would give if called by the Council as a witness in the Council’s prosecution of Kari & Ghossayn for also committing offences against s 125(1) of the EPA Act.

166 In relation to the assistance given through the interview process, Mr Weller for the appellant, submitted that the directors had been “frank, honest and forthcoming” in the interviews. However, a careful evaluation of the interviews reveals considerable variation in the explanations given by the directors for the actions constituting the breach of the conditions of consent. The explanations included:

(a) The stone outcrop (subject to condition 60) was at the stairs and had to be removed: p 1 of record of interview with Mr Charlie Gittany (Exhibit G).

(b) Trees 187 and 188 (subject to condition 58) were too close to the excavations so they went: p 1 of record of interview with Mr Charlie Gittany (Exhibit G).

(c) The flora (other than trees 187 and 188) was at the stairs also: p 1 of record of interview with Mr Charlie Gittany (Exhibit G).

(d) Paul Gerrin (the PCA) said it was OK for the outcrop to be removed: pp 2, 3 of record of interview with Mr Charlie Gittany (Exhibit G).

(e) Kari & Ghossayn took down the trees of their own accord: p 3 of record of interview with Mr Charlie Gittany (Exhibit G).

(f) The trees were already removed before Mr Charlie Gittany came to the site: p 3 of record of interview with Mr Charlie Gittany (Exhibit G).

(g) Most of the trees were removed before Mr Tony Gittany got to site. Kari & Ghossayn must have removed them: p 2 of record of interview with Mr Tony Gittany (Exhibit H).

(h) We had sewer and excavation works in the area of the trees (subject to condition 60). We used a 30 tonne excavator to do the works: pp 2, 3 of record of interview with Mr Tony Gittany (Exhibit H).

(i) One of the Council guys came over and said we could fix up the site when we had done the sewer and excavation works: p 3 of record of interview with Mr Tony Gittany (Exhibit H).

(j) We only would have given instructions to remove the trees after we were given the OK from the Council (sewer and excavation works): p 3 of record of interview with Mr Tony Gittany (Exhibit H).

(k) The trees were removed for safety reasons, the over excavation for the retaining walls made the trees unsafe and they could have fallen on to the workers: p 3 of record of interview with Mr Tony Gittany (Exhibit H).

(l) Mr Tony Gittany gave instructions to the arborist on Council’s OK to remove the trees: p 3 of record of interview with Mr Tony Gittany (Exhibit H).

(m) The rock outcrop in the western corner have not been removed at all but are still there buried: p 4 of record of interview with Mr Tony Gittany (Exhibit H).

(n) The instruction to use the western corner of the site would have been given by Mr Charlie Gittany or Mr Tony Gittany: p 4 of record of interview with Mr Tony Gittany (Exhibit H).

(o) We were told by the Council to remove the trees: p 4 of record of interview with Mr Tony Gittany (Exhibit H).

(p) The PCA said that there were works in the area of the trees and they were “no good to keep”: p 4 of record of interview with Mr Tony Gittany (Exhibit H).

(q) Early on in the beginning of the job, the controls were not a high priority. We had other concerns such as safety which was far more important. We can’t control what happens on site. Things just got out of control: p 5 of record of interview with Mr Tony Gittany (Exhibit H).

167 These varying and inconsistent explanations for the actions that resulted in the offences (with their different degrees of culpability of the appellant) mitigate against a conclusion that the appellant, through its directors, was being entirely “full, frank and honest”. This lessens the degree of assistance of the appellant: see s 23(2)(b) and (c) of the Crimes (Sentencing and Procedure) Act 1999.

168 The agreement of Mr Charlie Gittany to provide a statement of the evidence he would give if called as a witness in the Council’s prosecution of Kari & Ghossayn is also of some assistance. The statement is very brief (2 pages and 14 paragraphs). The first page sets out uncontentious and publicly known matters concerning Mr Charlie Gittany, Gittany Constructions, the ownership of the land, the grant of the consent and the terms of the conditions. The second page sets out some of the information Mr Charlie Gittany had already provided in his earlier interview with the Council officers concerning his dealings with Sam from Kari & Ghossayn and Paul Ryan. This included information about showing the marked trees and the rock outcrop.

169 It is difficult to assess the true extent of the benefit that would flow from the assistance Mr Charlie Gittany would provide in giving this evidence: s 23(2)(b) and (d) of the Crimes (Sentencing Procedure) Act 1999.

170 As was observed in R v Gallagher (1991) 23 NSWLR 220 at 232, special care is required in cases such as the present where the argument in favour of leniency for an offender who has co-operated with authorities comes not only from the offender but also from the prosecuting authority. The prosecuting authority hopes to gain from the assistance in question and it is in its interests to see that such assistance is suitably and publicly rewarded.

“There is, however, usually no-one to put an opposing or qualifying point of view. This raises the need for special care on the part of the judge. The Court must be astute to ensure given that it is being accurate, reliable and complete information concerning the alleged assistance and benefits said to flow from it. Public confidence in the administration of criminal justice would be diminished if courts were to give uncritical assent to arguments for leniency, which are jointly urged by both the prosecution and the defence, in circumstances which may call for a close examination of the alleged assistance”: at 232

171 Having regard to the nature and extent of the assistance to be provided by Mr Charlie Gittany, I would find that it might be of some benefit, but I would not weight it too greatly.

172 Care must also be taken when considering the assistance provided by the appellant in agreeing to be interviewed by the Council and agreeing to give evidence in the other prosecution, to avoid double-counting. This could occur because of the inter-relatedness of the factor of assistance to authorities with the other factors of the appellant’s plea of guilty and expressions of contrition and remorse.

Extra-curial punishment

173 On the appeal, the appellant tendered some ING bank statements (Exhibit P). Mr Weller submitted that the bank statements evidence the payment of interest during the period from September 2005 to 31 January 3006. This is the period during which the appellant was negotiating, lodging and awaiting determination of the application to modify the consent under s 96 of the EPA Act. Until the s 96 application was approved and the work completed, the town houses could not be put on the market. The incurring and payment of interest in this period amounted to “extra-curial punishment” that the Court should take into account.

174 I reject this submission for two reasons. First, the bank statements do not prove either the appellant’s financial situation or any payment of interest or otherwise by the appellant. The bank statements are in the name of three individuals, Charles Gittany, Anthony Gittany, and Ibrahim Abbas. These persons are the owners of the land. Two of the persons, Mr Charlie Gittany and Mr Tony Gittany, are directors and shareholders of the appellant, but the third has no such connection with the appellant. There is no link established in the bank statements or in any other evidence before the Court between the financial position of the individuals and the financial position of the appellant.

175 Secondly, the incurring and payment of interest on borrowings over a period that is longer than it would otherwise have been had the appellant not committed the offence by carrying out development otherwise than in accordance with the conditions of consent does not readily fall within the concept of extra-curial punishment meted out by others such as abuse and harassment or threats of injury or actual injury to person and property: see, for example, R v Allpass (1993) 72 A Crim R 561 at 566, 567; R v Daetz (2003) 139 A Crim R 398 at 409 [57], 410-411 [62], 411 [66]-[67]; R v Do [2005] NSWCCA 258 (22 July 2005) at [26].

Financial position of appellant

176 Section 6 of the Fines Act 1996 (NSW) provides:

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

(a) such information regarding the means of the accused as is reasonably and practicably available to the Court for consideration, and

177 There is no evidence available to the Court of the financial means of the appellant or any inability to pay a fine of any particular amount.

Conclusion on subjective circumstances

178 The subjective circumstances of the appellant mitigate the sentences that ought appropriately to be imposed for each offence. The appellant’s lack of antecedent criminal history is a factor to be considered. The mitigating factors of the appellant’s early pleas of guilty, expressions of contrition and remorse and willingness to assist the authorities can, by reason of their inter-relatedness in this case, properly be combined into a single discount. In all of the circumstances, the single combined discount should be quantified at 35%.

Consistency in sentencing

179 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:

R v Visconti

180 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”.

R v Henry

181 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” ;

R v Stahl

“Each case is different and one case does not demonstrate the limits of a sentencing judge’s discretion”.

Cabonne Shire Council v Environment Protection Authority

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

R v Morgan

Capral Aluminium Ltd v WorkCover Authority of NSW

183 In Cameron v Eurobodalla Shire Council [2006] NSWLEC 47 (13 February 2006) at [105], I discussed a number of cases involving an 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: see [49] and [105]. Generally, sentences for this offence have increased in the last 2 years as the seriousness of contravention of statutory requirements for the preservation of trees has been increasingly recognised. Sentences for the felling or lopping of a tree or trees contrary to such statutory requirements have been in the order of $10,000 to $25,000.

184 In Cameron v Eurobodalla Shire Council [2006] NSWLEC 47 (13 February 2006) I dismissed an appeal against the severity of a sentence of $10,000 for lopping a tree without consent. In Eurobodalla Shire Council v Wheelhouse [2006] NSWLEC 78 (6 February 2006), Lloyd J upheld an appeal against the manifestly inadequate sentence of $600 imposed by the Local Court for cutting down three trees without consent and instead imposed a sentence of $10,000.

185 In Ku-ring-gai Council v Nettcorp Pty Ltd [2003] NSWLEC 203 (13 August 2003), the sentence was $35,000 for removal of ten trees contrary to conditions of consent. In Sutherland Shire Council v Nustas [2004] NSWLEC 608 (3 November 2004), the sentence was $11,000 for damaging four trees (leading to the removal of three trees) contrary to conditions of consent.

186 In Byron Shire Council v Fletcher (2005) 143 LGERA 155 I imposed a sentence of $20,000 for clearing about 50 regrowth trees on a building site within an area designated as a building envelope.

187 For more substantial clearing activities, the penalties have been higher. In Newcastle City Council v Pepperwood Ridge Pty Ltd (2004) 132 LGERA 388, a penalty of $68,000 was fixed for underscrubbing and the removal of somewhere between 110 and 164 dead, dying and living trees on a potential development site. In Council of Camden v Tax (2004) 137 LGERA 368, a penalty of $30,000 was imposed for cutting or removing about 40 trees.

Appropriate penalty for each individual offence

188 In fixing the appropriate punishment for the offences, the Court needs to consider the purposes of sentences relevant to the offences in this case.

189 There is a need to ensure that the appellant is made accountable for its actions and is adequately punished for the offences it has committed. This requires the Court to ensure that the punishment for each offence adequately reflects the objective seriousness of the offences, whilst also taking account of the subjective circumstances of the appellant.

190 There is a need to deter specifically the appellant from repeating the conduct that resulted in the commission of the offences, when the appellant carries out development in the future. The appellant needs to be told, by the Court’s sentence, that breaches of the EPA Act, including by failing to carry out development consent, will be visited with significant financial consequences.

191 There is also a need to deter other persons engaged in the demolition, excavation, earthmoving, building, construction and development industries, who might be tempted to commit similar offences against the EPA Act by the prospect that, if they are caught, only light punishment will be imposed by the courts.

192 To achieve general deterrence, courts need to impose a penalty that not only acts as a warning to others but also makes it worthwhile that the cost of taking precautions to avoid committing the offence (such as by obtaining and complying with development consents be undertaken): Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359-360; Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [139]-[141], [148]-[157].

193 The sentence of the Court must also recognise that the appellant’s conduct in committing the offences has caused harm to the community by damaging the natural environment that the relevant public authority, the Council, had required by imposing conditions on the development consent to be retained, protected and enhanced for the benefit of the community.

194 Taking account of these purposes of sentencing, as well as the objective circumstances of each of the offences and the subjective circumstances of the appellant, I would fix as the appropriate sentence for each offence a fine in the amount of $10,000 for each of the offences relating to the two trees, tree 187 and 188, and $45,000 for the more serious offence relating to the western corner of the site. In so doing, I have allowed for the 35 per cent combined discount for the appellant’s early pleas of guilty, expressions of contrition and remorse and assistance to authorities.

195 Sentences in these amounts fall within the pattern of sentencing revealed by the cases discussed above.

Totality principle

196 The totality principle is a principle of sentencing which must be applied when sentencing an offender who has committed more than one offence. The court should consider questions of cumulation or concurrence as well as questions of totality. When reviewing the aggregate sentence, the Court must consider whether it is “just and appropriate” and reflects the total criminality before the court: see Mill v Queen (1988) 166 CLR 59 at 62-63; Pearce v The Queen (1998) 194 CLR 610 at 624 [49]; R vKalache (2000) 11 A Crim R 15 at [110], [180]; AEM Snr; KEM; MM [2002] NSWCCA 58 (13 March 2002) at [70]; and R v Bahsa (2003) 138 A Crim R 245 at [62], [63].

197 The totality principle is applicable where the penalty is by way of fine: R v Sgroi (1989) 40 A Crim R 197 at 203; Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 704. However, the totality principle may not have the same force in the case of the imposition of fines, as opposed to the imposition of imprisonment where it has a special operation: see Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 704.

198 To reflect the fact that a number of sentences are being imposed, an appropriate aggregate may be reached by either making sentences concurrent or lowering the individual sentences below what would otherwise be appropriate. In R v Holder [1983] 3 NSWLR 245 at 260, Street CJ described the process as follows:

“Not infrequently a straight forward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. The effect of this practical consideration is always to produce an ultimate aggregate which is less than that which would be arrived at by a straightforward adding up of the terms appropriate for the offences if each were viewed alone. In carrying out this process of adjustment, it is both inevitable as well as proper that the ultimate decision be arrived at in the light of the totality of the criminality involved in all of the offences.”

199 In determining an appropriate aggregate sentence, the Court must consider the need to uphold public confidence in the administration of justice. If sentences are reduced substantially, offenders may view that they can escape punishment for successive deliberate discrete offences: R v Wheeler [2000] NSWCCA 34 (16 February 2000) at [36]-[37].

200 In applying the totality principle, the Court must avoid determining a sentence that is disproportionate to the seriousness of the offence: R v A [1999] NSWCCA 61 at [32]. The Court must first fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well as questions of totality: Pearce v The Queen (1998) 194 CLR 610 at 624 [45]; R v Wheeler [2000] NSWCCA 34 (16 February 2000) at [31], [32] and R v AEM Snr; KEM; MM [2002] NSWCCA 58 (13 March 2002) at [64], [67].

201 A countervailing factor in sentencing for more than one offence is the need to ensure public confidence in the administration of criminal justice. A person who commits a series of deliberate discrete offences must not be left with the idea that he or she can escape effective punishment for successive offences each of which contributed to a whole course of deliberate criminal behaviour: R v Wheeler [2000] NSWCCA 34 (16 February 2000) at [36], [37], [51].

202 In this case, considering each offence individually, for the reasons I have earlier given, I would fix a sentence of a fine of $10,000 for each offence involving the removal of trees 187 and of 188 and a fine of $45,000 for the offence of failing to retain and protect the indigenous bushland in the western corner of the site and all existing trees, shrubs, groundcovers and sandstone rock outcrops.

203 Cumulatively, however, the aggregate sentence of $65,000 may exceed marginally what is appropriate in the circumstances. This is particularly so in relation to the two offences of removing the two trees having regard to the facts that the two trees were in close proximity, the contemporaneity and similarity of the conduct in removing the two trees and the breach was of the same condition of consent (condition 58). A downward adjustment of the amounts of the fines for these two offences to $7,500 each would be appropriate.

204 The offence involving the removal of the indigenous bushland and all of the existing trees, shrubs, groundcovers and sandstone rockcrops in the western corner of the site stands in a different position. It involves different criminal conduct to that which resulted in the two offences for removal of trees 187 and 188. The nature, extent and other features of the natural environment to be protected in that area, the particular means of protection required, the objective in protecting the area, the imposition of a particular consent condition requiring the protection of the area, the circumstances of the appellant’s breach of the condition and the consequences of the breach are distinguishable from the circumstances involving the two trees the subject of a different consent condition and the appellant’s breach of that condition. The criminality involved in the two sets of offences should not be conflated. No downward adjustment should be made to the amount of the fine for this offence.

205 If a downward adjustment is made to the individual sentences for the two tree offences, as I have found is appropriate, but no adjustment is made to the sentence for the offence relating to the western corner of the site, the resultant aggregate sentence of $60,000 would be proportionate to the total criminality of the appellant’s conduct.

206 To reduce the sentences any further, however, would cause the reduced aggregate sentence to be disproportionate to the objective gravity of the offences. It would fail to reflect the total criminality of the appellant’s conduct. It would also undermine public confidence in the administration of criminal justice by failing to effectively punish a person who commits discrete offences: R v Wheeler [2000] NSWCCA 34 (16 February 2000) at [36], [37].

Appropriate order to dispose of appeals

207 Magistrate Lyon determined the appropriate sentences to be $5,000 for each of the offences for clearing the two trees and $20,000 for the offence of failing to retain and protect the indigenous bushland in the western corner and all existing trees, shrubs, groundcovers and sandstone rock outcrops.

208 Considering the matter afresh by way of rehearing, I consider that the appropriate sentences for each offence should be in the amounts of $7,500 for each of the two offences for clearing trees 187 and 188 and $45,000 for the offence in relation to the western corner of the site. These sentences are individually within the range appropriate to the objective circumstances of the offences and the subjective circumstances of the appellant and cumulatively reflect the total criminality involved in the commission of the offences.

209 These sentences are, however, more severe than those imposed by the Local Court. This Court does have power under s 39(2) of the Review Act to vary the sentence, which is defined in s 3(3) of the Review Act to include setting aside the sentence and imposing some other sentence of a more severe nature.

210 However, there is an established practice or convention that an appellate court determining an appeal against the severity of sentence will not vary the sentence imposed by the Local Court by imposing some other sentence of a more severe nature without first warning the appellant of that possibility. This warning permits the appellant the opportunity to consider whether or not to apply for leave to withdraw the appeal: Parker v DPP (1992) 28 NSWLR 282 at 295, 300; Roos v DPP (1994) 34 NSWLR 254 at 257-259, 265, 267-268; Relic v DPP [2000] NSWCA 84 (26 April 2000) at [9]-[12], [20].

211 In this case, the Council as prosecutor did not appeal against the leniency of the sentences imposed by the Local Court. Moreover, on the appeal by the appellant, the Council did not submit that a more severe sentence should be imposed by this Court.

212 From this Court’s perspective, it was not possible in the circumstances of this case to recognise the appropriateness of an increased sentence until:

(a) all of the evidence including the fresh evidence tendered on the appeal, had been carefully evaluated;

(b) the objective circumstances of the offences and subjective circumstances of the appellant had been found, and

(c) the Court determined, as required, the sentences afresh, both individually and in totality.

213 In these circumstances, it would be procedurally unfair for the Court to vary the sentences imposed by the Local Court by increasing the amounts of the penalties. The appropriate order under s 39(2) of the Review Act, therefore, is to dismiss each of the appeals. Such an order would reflect the Court’s conclusion that each of the sentences of the Local Court are not, at the least, too severe.

214 As the appellant has been unsuccessful in its appeals, the appellant should pay the respondent’s costs of the appeals.

Orders

215 The Court orders:

1. Each of the appeals is dismissed.

**********

Citations

Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242

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Durward Pty Ltd v Sutherland Shire Council [2004] NSWLEC 12

Carlino v Leichhardt Municipal Council [2005] NSWLEC 198

Cameron v Eurobodalla Shire Council [2006] NSWLEC 47

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CITATION:	Gittany Constructions Pty Limited v Sutherland Shire Council [2006] NSWLEC 242
PARTIES:	APPLICANT Gittany Constructions Pty Limited RESPONDENT Sutherland Shire Council
FILE NUMBER(S):	60001; 60002; 60003 of 2006
CORAM:	Preston CJ
KEY ISSUES:	Appeal :- appeal against severity of sentences of Local Court - appeals by way of rehearing - sentences that would be proportionate to objective circumstances of offences and subjective circumstances of offender would be more severe than sentences imposed by Local Court - appellant not warned at hearing of appeals of possibility of more severe sentences - sentences should not be varied by substituting more severe sentences - appropriate order is to dismiss appeals. Environmental offences:- carrying out development not in accordance with conditions of development consent - removal of native trees required to be protected and retained - removal of indigenous bushland, trees, shrubs, groundcovers and sandstone rock outcrops required to be protected and retained - offender's actions objectively serious - offences foreseen, negligent and the consequences of conduct that was intended by offender - offences committed for reasons of practicality and expediency - mitigating circumstances - lack of prior convictions - early plea of guilty - contrition and remorse - assistance to authorities - inter-relatedness of mitigating circumstances justifies single combined discount - no extra-curial punishment established.
LEGISLATION CITED:	Crimes (Local Courts Appeal and Review) Act 2001 (NSW) s 3(3), s 31(2)(a), s 37(1), s 37(2), s 39(2) Crimes (Sentencing Procedure) Act 1999 s 3A, s 17, s 21A(3)(i), s 21A(3)(m), s 22, s 22(1), s 22(1)(b), s 23(2)(c) Criminal Appeal Act 1912 s 5AA Environmental Planning and Assessment Act 1979 (NSW) s 76A(1), s 76A(1)(b), s 96, s 125(1), s 126(1), s 127(3) Fines Act 1996 (NSW) s 6
CASES CITED:	Axer Pty Limited v Environment Protection Authority (1993) 113 LGERA 357; Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (13 February 2006); Byers v Leichhardt Municipal Council [2006] NSWLEC 82 (13 February 2006); Byron Shire Council v Fletcher [2005] NSWLEC 706 (25 November 2005); Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304; Cameron v Eurobodalla Shire Council [2006] NSWLEC 47 (13 February 2006); Council of Camden v Tax (2004) 137 LGERA 368; Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1992) 32 NSWLR 684; Capral Aluminium Ltd v Workcover Authority of NSW (2000) 49 NSWLR 610; Carlino v Leichhardt Municipal Council [2005] NSWLEC 198 (27 April 2005); Cliftleigh Haulage Pty Limited v Byron Shire Council [2005] NSWLEC 692 (1 December 2005); Cooper v Coffs Harbour Council (1997) 97 LGERA 125; Director General of National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 (27 September 2002); Durward Pty Ltd v Sutherland Shire Council [2004] NSWLEC 12 (28 January 2004); Ebacarb Pty Limited v Environment Protection Authority [2003] NSWLEC 411 (2 December 2003); Environment Protection Authority v Ampol Ltd (1995) 85 LGERA 443; Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349; Environment Protection Authority v Hochtief AG [2006] NSWLEC 200 (28 April 2006); Eurobodalla Shire Council v Wheelhouse [2006] NSWLEC 98 (6 February 2006); Fletcher Construction Australia Limited v Workcover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66; Gibson v The Queen (1991) 172 CLR 353; Hoare v The Queen (1989) 167 CLR 348; Ku-ring-gai Council v Nettcorp Pty Ltd [2003] NSWLEC 203 (13 August 2003); Lawrenson Diecasting Pty Ltd v Workcover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464; Lowe v The Queen (1994) 154 CLR 606; Majury v Sunbeam Corporation Ltd [1974] NSWLR 659; Markarian v The Queen (2005) 79 ALJR 1048; Mill v The Queen (1988) 166 CLR 59; Mosman Municipal Council v Menai Excavations Pty Limited (2002) 122 LGERA 89; Neal v R (1982) 149 CLR 305; Newcastle City Council v Pepperwood Ridge Pty Ltd (2004) 132 LGERA 388; Parker v DPP (1992) 29 NSWLR 282; Pearce v The Queen (1998) 194 CLR 610; Power v Penthill House Pty Ltd (1993) 80 LGERA 247; R v A [2004] NSWCCA 292 (16 December 2004); R v AEM Snr; KEM; MM [2002] NSWCCA 58 (13 March 2002); R v Allpass (1993) 72 A Crim R 561; R v Bahsa (2003) 138 A Crim R 245; R v Cameron (2002) 209 CLR 339; R v Carter [2001] NSWCCA 245; R v Daetz (2003) 139 A Crim R 398; R v Do [2005] NSWCCA 258; R v Doan (2000) 50 NSWLR 115; R v Dodd (1991) 57 A Crim R 349; R v El Hani [2004] NSWCCA 162 (21 May 2004); R v Frank Waqa (No 2) [2005] NSWCCA 33 (24 February 2005); R v Gallagher (1991) 23 NSWLR 220; R v H (1980) 3 A Crim R 53; R v Henry (1999) 46 NSWLR 346; R v Holder [1983] 3 NSWLR 245; R v Kalache (2000) 11 A Crim R 15; R v MacBain [2005] NSWCCA 358 (20 October 2005); R v Markarian (2005) 79 ALJR 1048; R v McGourty [2002] NSWCCA 335 (13 August 2002); R v Murray, unreported, NSW Court of Criminal Appeal, 29 October 1997; R v Nichols (1991) 57 A Crim R 391; R v Oliver (1980) 7 A Crim R 174; R v Rushby [1977] 1 NSWLR 594; R v Sgroi (1989) 40 A Crim R 197; R v Sharma (2002) 54 NSWLR 300; R v Stahl [1997] NSWCCA 160 (26 March 1999); R v Thomson; R v Houlton (2000) 49 NSWLR 383; R v Wheeler [2000] NSWCCA 34 (16 February 2000); Relic v DPP [2000] NSWCA 84 (26 April 2000); Roos v DPP (1994) 34 NSWLR 254; Sutherland Shire Council v Nustas [2004] NSWLEC 608 (3 November 2004); Veen v R (No. 1) (1979) 143 CLR 459; Veen v R (No. 2) (1988) 164 CLR 465; Wong v R (2001) 207 CLR 584
DATES OF HEARING:	03/03/2006
DATE OF JUDGMENT:	05/10/2006
LEGAL REPRESENTATIVES:	APPLICANT Ms E Espinosa (solicitor) SOLICITORS Elizabeth Espinosa RESPONDENT Mr J Weller (solicitor) SOLICITORS Joe Weller