Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited (No 2)

[2009] NSWLEC 6

Land and Environment Court

of New South Wales

CITATION:	Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited (No 2) [2009] NSWLEC 6
PARTIES:	PROSECUTOR Hawkesbury City Council DEFENDANTS Keith Norman Johnson; Johnson Property Group Pty Limited
FILE NUMBER(S):	50027 of 2007; 50029 of 2007
CORAM:	Pain J
KEY ISSUES:	PROSECUTION :- sentence - defendants convicted of tree clearing in contravention of s 125(1) Environmental Planning and Assessment Act 1979 - objective circumstances of offence - whether there was a belief in mistake of law and whether a mitigating circumstance - whether defendants engaged in subterfuge to hide offence - whether aggravating factors Prosecution :- sentence - subjective factors - whether sufficient evidence of remorse from individual defendant where no direct evidence - whether evidence of remorse by corporate defendant
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 s 3A, s 21A Environmental Planning and Assessment Act 1979 s 125(1) Environment Protection and Biodiversity Conservation Act 1999 Evidence Act 1995 s 60, s 72, s 143 Hawkesbury Local Environmental Plan 1989 State Environmental Planning Policy (Major Projects) Amendment (Pitt Town) 2008
CASES CITED:	Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 Bentley v Gordon [2005] NSWLEC 695 Blue Mountains City Council v Carlon [2008] NSWLEC 296 Byron Shire Council v Fletcher (2005) 143 LGERA 155 Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Cooper v Coffs Harbour City Council (1997) 97 LGERA 124 Council of Camden v Poyntz [2007] NSWLEC 439 Council of the City of Gosford v Tauszik [2005] NSWLEC 266 CTM v The Queen (2008) 82 ALJR 978 EPA v Barnes [2006] NSWCCA 246 EPA v Gardner [1997] NSWLEC 169 Environment Protection Authority v Brazel (No 3) (2002) 121 LGERA 156 Garrett v House [2006] NSWLEC 492 Garrett v Williams (2008) 160 LGERA 115 Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited [2008] NSWLEC 138 Holroyd City Council v El-Khouri [2008] NSWLEC 83 Hornsby Shire Council v Devaney [2007] NSWLEC 199 Hornsby Shire Council v Moit [2001] NSWLEC 50 Johnson v The Queen (2004) 78 ALJR 616 Laurentiu v Becheru (1992) 63 A Crim R 402 Lowe v The Queen (1984) 154 CLR 606 Manly Council v Taheri [2008] NSWLEC 314 Markarian v The Queen (2005) 79 ALJR 1048 Minister for Environment and Heritage v Greentree (No 3) (2004) 136 LGERA 89 Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89 Mosman Municipal Council v Toltz [2002] NSWLEC 175 Newcastle City Council v Pepperwood Ridge (2004) 132 LGERA 388 Papakosmos v the Queen (1999) 196 CLR 297 R v Elfar [2003] NSWCCA 358 R v Henry (1999) 46 NSWLR 346 R v McGourty [2002] NSWCCA 335 R v Melbourne (1999) 198 CLR 1 R v Morabit (1992) 62 A Crim R 82 R v Olbrich (1999) 199 CLR 270 R v Qutami [2001] 127 A Crim R 369 R v Rogers (1994) 181 CLR 251 R v Tait and Bartley (1979) 24 ALR 473 R v Way (2004) 60 NSWLR 168 Rogers v The Queen (1994) 181 CLR 251 Ryan v The Queen (2001) 206 CLR 267 Subramaniam v Public Prosecutor (1956) 1 WLR 965 Tesco Supermarkets Ltd v Nattrass [1972] AC 153 The Queen v Carroll (2002) 213 CLR 635 The Queen v Storey (1978) 140 CLR 364 Thorneloe v Filipowski (2001) 52 NSWLR 60
TEXTS CITED:	NSW Judicial Commission Criminal Trials Bench Book at [2-360]
DATES OF HEARING:	11 September 2008 12 September 2008 11 December 2008
DATE OF JUDGMENT:	3 February 2009
LEGAL REPRESENTATIVES:	PROSECUTOR Mr D Buchanan SC SOLICITORS Pike Pike and Fenwick DEFENDANTS Mr P Byrne SC with Mr A Djemal SOLICITORS DLA Phillips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

3 February 2009

50027 of 2007 Hawkesbury City Council v Johnson (No 2)

50029 of 2007 Hawkesbury City Council v Johnson Property Group Pty Limited (No 2)

JUDGMENT

1 Her Honour: In Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited [2008] NSWLEC 138 (Johnson No 1) the two Defendants were found guilty of the same offence under s 125(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) of carrying out development which required development consent under the Hawkesbury Local Environmental Plan 1989 (the LEP) without that consent. The development comprised the felling and/or clearing of trees. The trees felled and/or cleared were native vegetation and were about 200 acacia parramattensis (black wattle). The offences occurred on Lot 132 DP 1025876 at Pitt Town otherwise known as 18 Johnston Street, Pitt Town on 18 April 2006. The land is also known as “Bona Vista”. The Defendants must now be sentenced for those offences.

2 The clearing activity giving rise to the offences was carried out by a contractor employed by the corporate Defendant. The individual Defendant Mr Johnson is the sole director of the corporate Defendant. He was found guilty of the same offence separately from the corporate Defendant on the basis that he was the “heart and mind” of the corporate Defendant (Tesco Supermarkets Ltd v Nattrass [1972] AC 153 per Lord Reid at 170); see [188] of Johnson No 1. I will consider both Defendants jointly in the judgment unless indicated otherwise. The corporate Defendant will be referred to as JPG and the individual Defendant as Mr Johnson.

3 Section 3A of the Crimes (Sentencing Procedure) Act 1999 (the CSP Act) identifies those matters which are relevant to sentencing. These include ensuring that a defendant is adequately punished (s 3A(a)), is accountable for his or her actions (s 3A(e)) and that the conduct of the defendant is denounced (s 3A(f)).

4 The seriousness of the offence based on the objective gravity of the offence must be considered. As submitted by the Prosecutor that would require reference to matters “personal to the offender at the time of the offence” including the reasons for the commission of the offence, R v Way (2004) 60 NSWLR 168 at [86].

5 The essential elements of the offences were found proved in Johnson No 1. The evidence is set out in detail at [14] – [92] of that judgment. Of particular relevance for the sentence hearing is the evidence of Mr Ryan, then Director of Planning of the Prosecutor and Ms Gee, former Director of External Services of the Prosecutor at [16]-[46] and correspondence from the Defendants to them and vice versa dated just before and just after the offence date of 18 April 2006 attached to their respective affidavits. That correspondence is summarised at [47] and the text of the letter from the Defendants to the Council dated 21 April 2006 is set out at length. The factual findings made on the evidence in the conviction hearing apply also in this sentence hearing.

Prosecutor’s evidence

6 In addition to witness evidence tendered in the hearing on conviction, the Prosecutor relied on further affidavit evidence at the hearing on sentence.

Ms Cumming

7 Ms Rachel Cumming, Council officer, swore an affidavit dated 28 May 2008, read over objection. She referred to her affidavit sworn 28 March 2007, read in the conviction hearing, which contained the chronology of events leading up to the making of the LEP and Ch 4 – Pitt Town Part E Hawkesbury Development Control plan (the DCP). She stated that JPG had two representatives sitting in on a steering committee that Council had resolved to establish in September 2002 to consider urban development options in Pitt Town. JPG representatives also presented masterplans for subdivision on two occasions to a committee established in June 2003 to oversee preparation of the masterplan and other instruments for Pitt Town. She also referred to two figures showing indicative subdivision layouts for the subject site and surrounding land in the DCP. She states that both plans were originally submitted by JPG for consideration during the preparation of the draft LEP and DCP, later being included in the DCP in forms modified by Council.

Mr Nej

8 Mr Richard Nej, senior town planner with the Council, swore an affidavit also read over objection dated 28 May 2008. He was responsible for the assessment of DA 278/06 lodged by JPG on 21 April 2006 for a turf farm and plant nursery (hereinafter referred to as the turf farm) on the property. Attached to his affidavit was a letter he had sent to JPG dated 8 June 2007, advising that the DA would not be recommended for approval as it was inconsistent with DA 0557/06 granted on 3 May 2007 (for subdivision in staged development of 226 lots). He stated in the letter that the DA granted included plans nominating trees for retention, while DA 278/06 proposed their removal. He also advised that separate applications for tree removal should be made simultaneously with the submission of any development application for each allotment. The letter also stated DA 278/06 was inconsistent with the stated zone objectives in the amended LEP, the property now being within land zoned “part rural housing and part housing” (formerly “part rural 1(c) and part environmental protection scenic 7(d1)”). A letter from JPG to Mr Nej was also annexed, dated 6 July 2007, which requested DA 278/06 be withdrawn from consideration.

Ms Gee

9 Ms Louise Gee swore an affidavit on 3 May 2007 that was partly read over objection. Three letters to Mr Johnson in relation to the subject property were annexed. Two letters, dated 14 October and 8 November 2005 from Mr Greg Hall, town planning coordinator with the Council, advised Mr Johnson, inter alia, that any tree or native vegetation removal on Bona Vista required development consent. The third letter, dated November 2005 from the Department of Environment and Conservation (DEC), attached a s 91 certificate enabling the removal of fallen logs and rubbish from Bona Vista and noted that the licence did not preclude the need to obtain Council consent for clearing of vegetation. It also recommended that expert advice be obtained before doing so.

Other evidence

10 Evidence of correspondence sent around the time of the offence tendered during the hearing on conviction was relied on by the Prosecutor in the sentence hearing. This included the letter of advice to Mr Hedge of JPG from its lawyer, dated 11 April 2006, in which JPG was advised that the removal of vegetation if ancillary to agriculture did not require development consent, and a letter from JPG to the Council dated 13 April 2006 advising of the intention to undertake agricultural activity on the land. Also tendered was a letter from JPG to the Council dated 21 April 2006, following the commission of the offence, which outlined the circumstances that led up to it. These letters were identified in Johnson No 1 at [47].

11 The Prosecutor also handed up various planning instruments for the Court to take judicial notice of pursuant to s 143 EvidenceAct 1995, subject to relevance. These included the State Environmental Planning Policy (Major Projects) Amendment (Pitt Town) 2008 (SEPP MP) and the Minister for Planning’s determination under Pt 3A of the EP&A Act of Pitt Town concept plan. This provides for, inter alia, the rezoning of Bona Vista to allow residential development.

Defendants’ evidence

12 The Defendant relied on the following affidavit evidence at the sentence hearing.

Ms Romano

13 An affidavit of Ms Emma Romano, general manager of JPG, dated 26 June 2008 was read over objection. She also gave oral evidence. She has known Mr Johnson for nine years and worked for him for eight years. Ms Romano outlined in her affidavit her professional experience working with Mr Johnson and his style of conducting business.

14 Ms Romano stated that she was executive assistant to the managing director from 2002 to 2007, during which time she worked closely with Pitt Town community groups. Following discussions with local residents, the idea of creating a non-profit community plant nursery evolved. Ms Romano stated this project was initiated by Mr Johnson to “enhance community spirit” and was well received by the Pitt Town residents.

15 Ms Romano spoke of Mr Johnson’s general philanthropy and personal generosity, noting how he gave her extensive support while she was suffering from a prolonged illness.

16 In cross-examination, Ms Romano stated that while canvassing development options for the turf farm in 2006 she consulted community members and farmers about ways to ensure its survival. Water supply was a critical issue. She described the soil profile at Bona Vista as sandy, and agreed that turf farm soil is usually alluvial and that soil type is critical to the viability of a turf farm. Ms Romano did not personally conduct research into the viability of the turf farm, only the nature of the plants to be planted. Jacaranda plants from the plant nursery were to be given as gifts to the community and the only research she knew of related to this. No decision had been made as to watering options, reticulation/piping being one of them. Ms Romano had spoken to local residents who were prepared to volunteer to maintain the trees. The plan for the turf farm was developed between Mr Johnson, Mr Paul Hedge and Ms Romano. Very little construction was required to establish it.

17 Ms Romano was cross-examined in relation to land owned by Mr Johnson, or controlled by JPG, that was closer to the Hawkesbury River than Bona Vista. In response to the suggestion that if there was a genuine desire to establish a turf farm it would have been more cost effective and a better guarantee for its success if the farm was established on land closer to the river, Ms Romano replied that, in terms of the plants with which she was concerned, it would have been just as easy on Bona Vista as the plants would have been cared for in a way that did not rely on proximity to the river. She said that an expert was not retained to analyse cost effectiveness as the project was not for profit. While the project was not advertised in the community, it was raised at community meetings by Ms Romano.

18 It was suggested to Ms Romano that Brown Consulting, who prepared the plans for the proposed subdivision, were not engaged to draw up the turf farm plans and that turf farm was never a genuine part of the development project. Ms Romano stated that Mr Hedge, who formally worked for Brown Consulting, may have drafted the turf farm plans, and that the trees JPG was going to plant at Bona Vista were a goodwill component of the proposed subdivision.

Mr Mutton

19 Mr Andrew Mutton, chief executive officer of JPG for two years, swore an affidavit dated 26 June 2008, read over objection, and gave oral evidence. He has known Mr Johnson for approximately 10 years. He has acted as a solicitor for both JPG and Mr Johnson. He had no involvement with the land clearing giving rise to the offence.

20 Mr Mutton noted that JPG has over a dozen significant projects in several local government areas and approximately 10,000 lots approved or in the course of approval for residential housing. The manager responsible for the Pitt Town re-zoning was Mr Hedge, a senior and skilful employee who reported to Mr Johnson.

21 Mr Mutton stated that, since joining JPG, he has sought to implement changes to its development operations, partly to ensure that issues such as those the subject of these proceedings do not recur, and is confident that a similar compliance failure will not recur. He listed the various changes including, inter alia, the appointment of development managers individually to major projects as opposed to one overseeing multiple projects, the creation of new management positions, the introduction of policies whereby senior managers effectively monitor projects more closely, and the appointment of two people who monitor and report to management in relation to legality of vegetation removal.

22 Mr Mutton recalled a conversation with Mr Johnson following the finding of guilt in Johnson No 1, stating that Mr Johnson said he was “extremely remorseful”, and that he had thought his actions had been lawful.

23 Mr Mutton also noted the generosity of Mr Johnson, stating that donations made by Mr Johnson and JPG since July 2005 total over $280,000. Amongst the charitable donations was a gift of $34,000 to fund a charity night for a woman whose husband had died. A letter from the woman expressing her gratitude is annexed to Mr Mutton’s affidavit.

24 Mr Mutton described Mr Johnson as a poor reader who suffered from undiagnosed dyslexia earlier in life. He relies largely on verbal briefings and his style of conducting business sees him out of his office often.

25 Mr Mutton stated that he believed, based on his experience, that Mr Johnson would not have deliberately or recklessly authorised the land clearing unless he believed he had legal advice that he could. While Mr Johnson has substantial expertise, he does not get tied up in detail and is not a planning or ecology expert. Mr Mutton described Mr Johnson as a person who, having been given advice by a qualified and competent expert, would generally accept it without question. Mr Mutton included the solicitor who gave Mr Johnson the original advice in that category.

26 In cross-examination, Mr Mutton stated that his belief as to why Mr Moore, development manager at JPG, sought the withdrawal of the DA in his letter to Council dated 6 July 2007 was that the land had been rezoned as residential at the time, while the DA had presumed an agricultural zoning. Mr Mutton presumed that the fact that a change in zoning had been sought by JPG (and achieved in 2006) only meant that a turf farm DA for an agricultural use would need to be reconsidered, in light of its inconsistency with the staged development DA.

27 Mr Mutton said the reason for his minimal involvement in the current proceedings was because it was prior to the commencement of his engagement. The reason Mr Johnson primarily dealt with the matter was because he plays a large role in the company. Mr Mutton disagreed that the changes he listed in his affidavit that occurred in JPG were not going to prevent Mr Johnson clearing land if that was his will. He stated experiences such as the present proceedings would also effectively prevent Mr Johnson from telling contractors to clear land. It was also the case that, in these circumstances, Mr Johnson was acting upon legal advice, which was an understandable thing to do even though Council had made it clear to him in earlier correspondence that consent was required. Mr Mutton denied that the legal advice was sought to cover for the conduct in which Mr Johnson and JPG sought to engage regardless of whether Council consent was required.

28 In re-examination, Mr Mutton stated that it had never been put to him that the solicitor whose advice had been sought by JPG was part of a conspiracy. He also stated that, based on the fact he has known him for ten years, Mr Johnson would not pursue an outcome if the means were unlawful, contrary to the Prosecutor’s suggestion. Mr Mutton believed there was no failure to heed the suggestion in the letter dated November 2005 to JPG from DEC (in relation to an application to remove noxious weeds from Bona Vista) that the company seek expert advice.

Dr Clements

29 Dr Annemarie Clements, plant ecologist, swore an affidavit dated 26 June 2008, read over objection. Dr Clements is familiar with the subject property, having inspected it during the course of her retainer as consultant ecologist by the Defendants. A Floral Assessment Report she had compiled on the Defendants’ behalf, dated 30 April 2003, was attached to her affidavit. The report makes recommendations and concluded that “given the past intensive agricultural land use and abundance of exotic species, there are no flora constraints on the cleared former agricultural lands or vegetation in centre east and north east of the Site.” The report also concluded that the vegetation in the north-east of the subject property (the cleared area) did not appear to meet the criteria for an endangered ecological community that existed in the south-east of the property due to a history of disturbance.

30 Dr Clements also annexed aerial photographs of the subject property taken in 1991, 1998 and 2002, noting that clearing appeared to have occurred between 1991 and 1998 in the area marked in red (coinciding with the red hatching on the aerial photograph, exhibit K5). Regrowth of trees and shrubs is seen in the 2002 photograph.

31 Dr Clements stated that some acacia species (wattles) are “regarded as weeds where they reinvade land cleared for grazing”, and in “natural stands of acacia parramattensis borer damage can limit the life span of trees to 10-15 years”. Black wattle is preserved in western Sydney, and is not listed as a threatened species under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). Dr Clements stated that the cleared black wattle were likely to be less than 10 years old and, in an agricultural context, the stands of black wattle could be considered “weed” in land cleared for grazing.

Mr Rhodes

32 Mr Gary Rhodes, town planning consultant, swore an affidavit dated 26 June 2008. He stated that, in light of his extensive experience, it is reasonable to conclude that the Council rezoned the subject property for residential development fully aware of the existence of flora reports in August 2006 (Hawkesbury LEP 1989 - Amendment No 145). With regard to Dr Clement’s flora report and the fact the subject property was rezoned to permit residential development, Mr Rhodes stated that in his opinion the black wattle would be removed as a consequence of urbanisation of the subject property. He stated he would have approved or recommended approval of an application for the clearing from the subject property of the black wattles. Partial clearing would not have been an option in retaining species in yard allotments, as it is a short lived species.

Mr Draper

33 Mr Danny Draper, aboricultural and horticultural consultant, swore an affidavit dated 26 June 2008 in which he noted the characteristics of black wattle, which include the fact that most live 10-25 years, suffering predation at maturity. They seed prolifically, germinate quickly and successfully, and so thrive. Mr Draper further noted that, as the majority of the subject property had been disturbed over time by agricultural activity, it is possible the black wattles were introduced or were opportunistically able to colonise areas that had been previously cultivated.

Ms Cowper

34 Ms Kate Cowper, personal assistant to Mr Johnson for the last three years, swore an affidavit on 23 July 2008. She attested to the strength of his character and noted his generosity and the amount of personal assistance he has rendered her. She also referred to his reading difficulties and that he relied on verbal communication. She has not known Mr Johnson to be untrustworthy in any dealings.

Character references

35 Over a dozen character references were tendered attesting to the good character of Mr Johnson made in the knowledge of these court proceedings. Amongst the referees were personal and family friends, fellow church members, professional colleagues, Pitt Town community members and councillors including members of Hawkesbury City Council and the mayor of Cessnock City Council. Mr Johnson is described in the references as honest, honourable and generous, having donated significant amounts of money to junior sports clubs, charity groups, community members and the church of which he is noted to be a devoted member. He has provided development advice and shown concern for the Pitt Town area and community through development initiatives. As a businessman, he is described as a genuine, honest and hard-working entrepreneur.

Purposes of sentencing

36 The offences charged are strict liability offences. It is not part of the elements of the offence that the Defendant intended to commit the offence. Section 3A of the CSP Act identifies the purposes of sentencing. It states:

The purposes for which a court may impose a sentence on an offender are as follows:
(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,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the crime and the community.

37 Section 21A of the CSP Act identifies numerous matters which a court must take into account when sentencing including those in relation to aggravating (s 21A(2)) and mitigating (s 21A(3)) factors. The sentence must reflect both the objective circumstances of the offence and the personal (subjective) circumstances of the defendant. In Markarian v The Queen (2005) 79 ALJR 1048 at [31] the High Court unanimously referred to the need to pay careful attention to the maximum penalty as a legislative yardstick to enable comparison between the worst possible case and that before the court.

38 In Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 at [163] and Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 at [110] relevant factors to determine the objective gravity of an offence were identified in the context of the EP&A Act. These include the maximum penalty, the objective harmfulness of the defendant’s actions, the reasons for the commission of the offence and the state of mind of the offender. Other relevant factors can be consideration of the statutory scheme in which the offence provision occurs and the need to uphold the integrity of the planning and development control system under the EP&A Act; see Blue Mountains City Council v Carlon [2008] NSWLEC 296 at [48], Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89 at [35].

Objective circumstances
(i) maximum penalty

39 The maximum penalty for the offence committed is $1.1million (10,000 penalty units), a relevant consideration reflecting the seriousness of the offence as nominated by the NSW Parliament: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698; see also Markarian.

(ii) aggravating circumstances

40 The Prosecutor bears the onus of proving beyond reasonable doubt, factual matters relied on in the sentence hearing adverse to the interests of the Defendants and not already determined in Johnson No 1. The Defendants bear the onus of proving on the balance of probabilities matters on which they rely in mitigation; R v Olbrich (1999) 199 CLR 270.

41 According to the Prosecutor there are several matters which suggest that there are aggravating circumstances for this offence. The Court should find that the Defendant knew the conduct comprising the offences was unlawful and that is an aggravating factor, EPA v Gardner [1997] NSWLEC 169 per Lloyd J. A failure to heed a warning or advice from regulatory authorities is an aggravating factor, see Garrett v Williams (2008) 160 LGERA 115 at [110] per Preston J. The Defendants ignored a specific warning delivered by the Council for this site about six or seven months before these offences occurred in letters from the Council dated 14 October 2005 and 8 November 2005 that the removal of any native vegetation required prior approval of the Council under the LEP. The DEC also gave similar advice (Gee affidavit dated 3 May 2007). The Defendants’ claim that they acted on legal advice should be rejected in light of the warnings received.

42 The clearing of the black wattles was deliberate rather than accidental and is therefore more serious; see Bentley v Gordon [2005] NSWLEC 695 at [125]-[126].

43 The offences were premeditated and involved planning to accomplish, and that is also an aggravating factor: R v Tait and Bartley (1979) 24 ALR 473 at 485. A large measure of premeditation, as there was in this case, renders the offence more serious than if spur of the moment: R v Morabit (1992) 62 A Crim R 82 at 86.

Subterfuge or mistaken belief of law

44 The key issue raised by the Prosecutor to argue that the Defendants’ behaviour involved significant culpability was that they tried to cover up their actions by claiming that they relied on an honestly held mistake of law. Further, the turf farm was a subterfuge to evade unfavourable consequences if the Council investigated the tree clearing. The Prosecutor must establish that the Defendants acted in this way beyond reasonable doubt.

45 The Defendants raise in mitigation that they relied on legal advice and held a belief in an honest and reasonable mistake of law that the tree clearing was lawful. The Defendants must establish their belief on the balance of probabilities.

46 As these two arguments are two sides of the same issue it is most logical that I first consider the Defendants’ claims that they acted in reliance on an honest mistake of law. I may then consider whether the Prosecutor has established beyond reasonable doubt that the Defendants engaged in a subterfuge to “hide” the offences through proposals for a turf farm.

Mistake of law
Defendants’ submissions
(i) Mistake of law/motive determined in Johnson No 1

47 As I made positive findings in Johnson No 1 that the Defendants had held a belief in a mistake of law and also made findings in relation to motive those findings are incontrovertible, see Rogers v The Queen (1994) 181 CLR 251 at 273, and cannot be revisited now by the Prosecutor in this sentence hearing. At [172] I held that the Defendants were operating under a mistaken belief of law, not fact, and that is the only basis for their guilt being established in this matter. The mistaken belief was based on legal advice received from the Defendants’ solicitor in a letter dated 11 April 2006 and confirmed in the telephone call from the Defendants’ solicitor on 18 April 2006. The inference arises that the belief was an honest one. That finding was related to guilt not to characterisation as the Prosecutor submitted.

48 Fundamental to the Prosecutor’s case on motive was that the turf farm was a subterfuge. That is part and parcel of the Prosecutor’s case that the motive for the tree clearing was to increase the lot yield for the proposed subdivision. Implicit in my finding must be that the turf farm was not a subterfuge. The Prosecutor did not succeed in the hearing on guilt that the Defendants caused the significant forest gum trees to be knocked over. It is not open to the Prosecutor now to maintain a case on motive based on the turf farm being a subterfuge when this issue was determined previously in Johnson No 1.

(ii) whether mistake of law

49 If the issue of whether the Defendants acted under an honest mistake of law is still to be determined, the evidence shows that this was in fact the case. The evidence available to the Court to be satisfied of the Defendants’ honest belief as to a mistake of law and that the turf farm was not a subterfuge is as follows:

(a) the letter of advice regarding the turf farm from Herbert Geer & Rundle solicitor Mr Robert Wilcher, dated 11 April 2006 (see par 10 above and [47] of Johnson No 1);

(b) the letter from JPG to the Council dated 13 April 2006, attaching turf farm plan and the letter of advice above (see par 10 above and [47] of Johnson No 1);

(c) the letter from JPG to the Council dated 21 April 2006 (see par 10 above and [47] of Johnson No 1);

(d) the telephone conversation (while on loud speaker) between Mr Johnson, Mr Wilcher and Mr Ryan on 18 April 2006, just after the incident of clearing, see transcript dated 10 December 2007 p 52 and 58;

(e) the evidence of Ms Romano that the turf farm was intended as a gift to the Pitt Town community and was not a commercial project;

(f) the evidence of Mr Mutton of Mr Johnson’s remorse and of the managerial and policy changes that have taken effect at JPG which will prevent similar circumstances to those which gave rise to this offence arising in the future.

(g) the warning from Mr Humphries from DEC advising Mr Johnson to obtain expert advice on the issue of land clearing in the future, see annexure marked “E” to affidavit of Louise Gee dated 3 May 2007 (exhibit AA);

(h) the evidence of Mr Ryan regarding the turf farm proposal not being incongruous with a staged residential development, see transcript 10 December 2007 at p 62.

50 This evidence establishes that the Defendants believed they were able to lawfully clear the black wattle in light of the legal advice received by them. Further, Mr Johnson has provided substantial testimonials and evidence of his character and the Court can take into account his character to determine if he is the type of person predisposed to be dishonest. Mr Mutton’s affidavit also refers to Mr Johnson’s approach to his work (par 25) in obtaining expert advice and relying on it. The Court can have regard to his character when determining if he is the type of person who would commit such an offence and engineer the offence in the way the Prosecutor alleges, see R v Melbourne (1999) 198 CLR 1. The character evidence demonstrates that Mr Johnson is not a dishonest person likely to engage in the activity alleged by the Prosecutor.

51 Further the letter of 21 April 2006 Mr Johnson sent to the Council provides evidence of his state of mind that he believed at that time that he had legal advice that the clearing was lawful, and this can be accepted as an exception to the hearsay rule, see Papakosmosv the Queen (1999) 196 CLR 297. It is also enabled by s 60 of the Evidence Act. Direct evidence from Mr Johnson about his state of mind is not the only means of proving that matter. The Evidence Act, s 72, allows comments and statements about a person’s state of mind to be admitted as an exception to the hearsay rule, and as also found by the Privy Council in Subramaniam v Public Prosecutor (1956) 1 WLR 965. The circumstances on the day of the offence when Mr Johnson rang his solicitor on site when told by Mr Ryan from the Council that the clearing was not lawful suggests he did honestly believe he had legal advice on which he relied, particularly as the lawyer stated it was a grey area of law in that conversation. Together with the letter written by Mr Johnson to the Council dated 21 April 2006 where he again states that he has such advice this evidence confirms Mr Johnson and therefore JPG had a mistaken belief in the law.

52 The Prosecutor relied on additional evidence in the sentence hearing (the affidavits of Gee, Nej and Cummings par 7-9). The Prosecutor’s reliance on the letters sent by the Council in 2005 attached to the affidavit of Ms Gee (par 9) as evidence of warnings to the Defendants that tree removal required consent is not an accurate reflection of the letters. The letters referred to the need to obtain expert advice before proceeding, which the Defendant then did in relation to the activity giving rise to these offences. The DEC letter referred to slashing, a different activity to that proposed and can have no relevance as a result. These notices do not allow the Prosecutor to make the submission that the Defendant was on notice of the need to obtain development consent. Further no adverse inference should be drawn from the documents attached to the Nej affidavit (par 8) concerning the withdrawal of the development application for the turf farm proposal. That application was withdrawn because of changed circumstances and the advice of the council officer that the turf farm was unlikely to be approved.

53 The Prosecutor relies on the Cummings affidavit (par 7) to argue the turf farm is inconsistent with historical efforts by the Defendants to obtain a residential zoning for the land. The development application for the turf farm was lodged because it was agreed on 28 April 2006 on site that would be the best course to rectify the legal situation in relation to the clearing that had taken place. No adverse finding can be drawn that the turf farm was a subterfuge because of that planning history.

Prosecutor’s submissions
(i) mistake of law/motive determined by Johnson No 1

54 The principle of incontrovertibility does not apply within proceedings but is a rule of preclusion affecting subsequent proceedings, see The Queen v Carroll (2002) 213 CLR 635 per Gleeson CJ and Hayne J at [35]. There is no issue estoppel in criminal law in Australia, The Queen v Storey (1978) 140 CLR 364, Rogers v The Queen. In any event, I did not make a finding on this issue in Johnson No 1, contrary to the Defendants’ submissions.

(ii) whether mistake of law

55 The Defendant’s claim that their actions were based on a mistaken belief of law should not be accepted.

56 The Prosecutor submitted there is a paucity of evidence surrounding the Defendants’ claimed mistake of law. Beyond the letter from the Defendants’ solicitors (attached to exhibit K1, see par 10), no evidence has been tendered by the Defendants as to any legal advice and the circumstances giving rise to any advice. No evidence of advice from senior counsel, claimed to have been received by the Defendants, has been tendered. The fact the Defendants submit there was a mistaken belief of law means that they must adduce evidence of independent advice given upon full disclosure of the relevant facts. The circumstances of this case, including the fact that there were prior warnings to the Defendants from the Prosecutor, inter alia, render it important to have such evidence. That any documents concerning legal advice are subject to privilege is not a concern as any privilege has now been waived.

(b) prior warnings by Council

57 It is inconceivable the Defendants laboured under a genuine belief that trees could be removed without consent, given the Council warning on 14 October 2005 (see Gee par 9) and the fact that the Defendants are professional developers. Council of the City of Gosford v Tauszik [2005] NSWLEC 266 at [3] – [4], [20] – [21] is relevant on this point. The “notice” given by the Defendants to the Council about the tree removal on 13 April 2006, just before Easter, and the fact that the tree removal took place immediately after Easter, suggests they deliberately engineered a situation in which they could argue mistaken belief of law.

(c) turf farm proposal inconsistent with subdivision proposal/not genuine

58 The turf farm proposal was, prima facie, inconsistent with the Defendants’ subdivision plans, given the way the turf farm plans were formulated and that the ultimate goal was residential subdivision. The plans for the subdivision as approved by Council on 26 July 2007 and in evidence did not indicate a turf farm. The separate turf farm DA was withdrawn on 6 July 2007. The Defendants have not explained why the turf farm could not, with consent, have been incorporated into the final stage of the subdivision. The Defendants never intended the turf farm be part of the residential subdivision, it was a cover to remove trees. The evidence of Mr Rhodes, consultant planner, confirms this insofar as his opinion that the black wattles would be cleared is premised on the fact the land would be used for residential, not agricultural, development. Ms Romano’s and Mr Mutton’s evidence on this issue carries no weight, having nothing to do with any decision by either Defendant.

59 There is no documentation indicating a study concerning the feasibility of a turf farm and there is no explanation for the absence of such documentation. This implies the proposal was not genuine. The site for the water-sensitive turf farm was distant from the Hawkesbury River, where JPG owns land, and was not chosen by experts in that field, but by Mr Johnson and Mr Hedge, JPG’s property manager.

60 No corroborating evidence from the Pitt Town community was produced, which is unusual for a corporate developer who has spent money on a proposal without generating public relations material.

(d) Inconsistent/inadequate evidence on behalf of Defendants

61 The fact that Mr Johnson claimed he had been told by Mr Ryan that consent was not necessary (an argument not accepted by the Court in Johnson No 1) is inconsistent with the belief consent was not required.

62 Ms Romano’s evidence should be given no weight as it provides second-hand, untested exculpatory evidence of Mr Johnson’s reasons for the tree removal. There is no corroborating evidence of the community meetings where the turf farm was discussed nor is her evidence sufficient to conclude the turf farm was a genuine proposal. This is especially so in light of the admission Bona Vista was sandy, not alluvial, as is the normal case for turf farms on the Hawkesbury River, and the fact she could not point to the existence of any geotechnical or business plans which would accompany a genuine proposal. She was unaware if irrigation had been arranged.

63 Given the entire factual context, Ms Romano’s evidence would suggest Mr Johnson knowingly became involved in an activity which he knew was illegal and outlaid money on a venture that had not been costed or its viability analysed. The evidence on the turf farm proposal does not “gel”, which is indicative of the Defendants’ failure to prove a genuine belief that, as a matter of law, vegetation could be removed.

64 Mr Mutton’s evidence is of no weight in relation to the Defendants’ real intentions at the time of the offences as he is not Mr Johnson and he became Chief Executive Officer (CEO) of JPG after the commission of the offence.

(v) Onus to prove mistake in law not discharged

65 Lack of evidence leads to the conclusion that, on the balance of probabilities, neither Defendant held a mistaken belief of law as claimed. The claimed mistake of law could not be tested as it only exists within Mr Johnson’s knowledge. This is relevant as it goes to whether the Defendants have discharged the burden of proving the claimed belief as a mitigating factor. CTM v The Queen (2008) 82 ALJR 978 is instructive in this regard: it cannot be said the Defendants have discharged their legal burden of proving on balance that they genuinely held the claimed belief. The finding in Johnson No 1 that there was no evidence to determine whether the clearing was ancillary to agriculture (at [176]) applies equally in sentencing. There is also no evidence from the draftsman of the turf farm plans as to the circumstances under which he or she was instructed.

66 There is authority supporting the proposition that affidavit evidence of a defendant (or director if a corporation) is required to test claims that the defendant holds a particular belief; see R v Elfar [2003] NSWCCA 358 at [24] – [25], R v Qutami [2001] 127 A Crim R 369 and R v McGourty [2002] NSWCCA 335. Mr Johnson’s reading difficulties do not prevent him from giving evidence. The reliance by defendants on exculpatory material which cannot be tested is a practice decried by the courts (Garrett v Williams at [171], inter alia).

Finding
(i) whether honest and reasonable mistake of law determined in Johnson No 1

67 In Johnson No 1 at [165] – [172] I had to consider the Defendants’ reliance on the defence of having a belief in a mistake of fact. At [172] I held that the circumstances relied on by the Defendants as the basis for arguing the defence of mistake of fact were a mistake of law. I did not express any view about whether the belief in the mistake of law was best characterised as an honest one. I was simply making a finding in relation to the defence of reasonable mistake of fact raised by the Defendants.

68 The basis for the finding of guilt of JPG was that the employee of WJ Friend Pty Ltd, Mr Sorenson, knocked over the trees in the course of his employment and there was direct authorisation of the tree clearing by WJ Friend Pty Ltd by Mr Johnson on behalf of JPG (see [162]-[163], [183]-[184] of Johnson No 1). Mr Johnson was liable as sole director of JPG (see [188]). The basis for the finding of guilt was not that there was a mistake of law by the Defendants. Nor did I state that there was an honest and reasonable mistake of law at [172]. I was characterising at [172] the arguments put forward by the Defendants in relation to a defence of honest and reasonable mistake of fact raised as a defence. It follows that I do not agree with the Defendants’ counsel’s submission that the only basis for the finding of guilt of JPG was that there was a mistake of law. The issue of whether the Defendants were acting in reliance on an honest mistake of law remains to be resolved.

69 It is not necessary to resolve the respective parties’ arguments on incontrovertibility in criminal proceedings in relation to the mistake of law as I did not make the findings in Johnson No 1 that the Defendants submitted that I did.

(ii) whether Defendants held honest and reasonable mistake of law

70 I must determine if the Defendants have proved on the balance of probabilities that they did act in reliance on an honest mistake of law as a mitigating circumstance in this sentence hearing. The Defendants’ submissions and the evidence relied on is set out at par 49 and includes legal advice from JPG’s then solicitor that clearing ancillary to agriculture did not require development consent under the LEP. That letter was attached to the letter from the Defendants to the Council dated 13 April 2006 which also attached the turf farm plan. There was discussion by telephone with the solicitor Mr Wilcher, Mr Ryan and Mr Johnson on 18 April 2006 (the offence date). The letter from Mr Johnson on behalf of JPG to the Council dated 21 April 2006 also referred to legal advice having been obtained to the effect that the clearing was lawful.

71 The Prosecutor argued (par 56) there was a paucity of evidence to support the claim of mistake of law because there was no evidence of advice given upon disclosure of all the relevant facts and the solicitor’s files and counsel’s advice referred to in the Defendants’ letter of 21 April 2006 were not produced, inter alia. The Prosecutor also argued that it was necessary for the Defendants to give evidence of their belief in order to establish that it existed but they have not done so.

72 For the belief in a mistake of law to have substantial relevance in mitigation, the mistake of law must be relevant to the charge. As pointed out by the Prosecutor the offence found proven in Johnson No 1 arises from a breach of cl 36 of the LEP which required development consent to be obtained for the clearing of native vegetation and no such consent was obtained. The mistake of law relied on by the Defendants does not concern the elements of the offence with which they were charged. I agree to some extent with the Prosecutor’s submissions that not all the circumstances surrounding the legal advice have been provided by the Defendants such as whether the operation of cl 36 of the LEP was considered. There is no evidence that advice particular to the offence, namely the operation of cl 36 of the LEP, was obtained. It appears that legal advice was obtained about a related issue, that of clearing of vegetation for agriculture, but that is not directly relevant to the charge. Accordingly, even if I find that the Defendants did have an honest belief in the mistake of law referred to in the evidence it is not a complete answer to this offence in their submission on mitigation.

73 The assessment of the Defendants’ evidence as to whether they held an honest belief based on the legal advice they did obtain must be made in light of the fact that Mr Johnson did not give evidence about his belief. Nor did Mr Hedge, the project manager for Bona Vista, who was involved on behalf of JPG in the events surrounding the offence date. The letter from JPG’s then solicitor dated 11 April 2006 concerning clearing of land for agriculture was addressed to him.

74 The evidence relied on by the Defendants as set out in their submissions above, including the letters in evidence that advice was obtained before the clearing activity on 18 April 2006, does allow the inference to be drawn on the balance of probabilities that the Defendants obtained legal advice and relied on it, they believed it to be true. I accept the Defendants’ submissions that, taking into account the evidence tendered, it is not necessary that Mr Johnson give evidence directly of his belief in order for the Defendants to establish that he honestly held such a belief in the circumstances of the offence. To hold otherwise would imply that the Defendants’ then solicitor was somehow involved in a scheme with the Defendant which included the provision of that advice. There is absolutely no basis in the evidence for such a finding or inference to arise.

75 Although the Evidence Act does not apply in sentence hearings I note the provisions of s 72 provide that evidence of a representation made about a person’s knowledge and state of mind can be admitted without the hearsay rule applying, which is the basis on which the Defendants have relied on the evidence of events before and immediately after the offence date to demonstrate Mr Johnson’s state of mind. In Subramaniam, referred to in the Defendants’ submissions, the Privy Council held at 970 that the fact a statement was made is relevant in considering the mental state and conduct of a witness in whose presence the statement was made.

76 In making this finding I have not accepted the Prosecutor’s submission (par 65,66) relying on CTM, Elfar ([24]-[25] are set out later in par 108), Qutami (at [58]-[59]) and McGourty (at [24]-[25]) that direct evidence of a defendant is required in order to test claims of a particular belief. I do not consider these cases support such a blanket submission. CTM is concerned more generally with the operation of the onus of proof of establishing an honest and reasonable belief of fact in criminal proceedings. In that case the defendant did give evidence. The other cases criticise the practice of a defendant relying on unsworn character or mitigating evidence which is not able to be tested in a sentence hearing. That is not the nature of the material which the Defendants are seeking to rely on in this part of the sentence hearing given that they rely on evidence which has been considered and tested in Johnson No 1.

77 I make this finding without taking into account the character evidence before me in the numerous character references and Mr Mutton’s affidavit evidence (par 25) which the Defendants’ counsel urged could be considered as indicative that Mr Johnson was not a person likely to engage in dishonest behaviour, relying on R v Melbourne in making that submission. That High Court decision is concerned with whether or not a trial judge has an obligation to direct the jury as to the manner in which they could use the evidence that the accused was a person of good character, and held there was no such requirement in a rule of law or practice. The Court held the trial judge has a discretion whether to direct the jury on evidence of good character having evaluated its probative significance in relation to propensity of a defendant to commit a crime and the credibility of the defendant (see also the NSW Judicial Commission Criminal Trials Bench Book at [2-360]). That decision does not provide authority that I must or should take such material into account myself in determining if Mr Johnson’s character is such that he is unlikely to commit the offence. The Defendant’s submission is made in the context of a sentence hearing where Mr Johnson has already been found guilty of an offence. Mr Johnson has not given any evidence in the conviction proceedings or these sentence proceedings so that there has not an opportunity for the Prosecutor to test evidence from the Defendant and it is not appropriate that I consider that character evidence in this context.

78 The Prosecutor submitted that the mistake of law could not have been honestly held because of the prior warnings from the Council of the need to obtain development consent. I do not consider this submission is relevant to whether the Defendants held an honest and reasonable belief in a mistake of law, but is relevant to consider in relation to the circumstances in which the offences were committed taking into account the limited extent of the legal advice received by the Defendants. I will deal with this further below at par 87 - 88.

(iii) turf farm a subterfuge?

79 The issue of whether the turf farm proposal was a subterfuge was combined in the Prosecutor’s submission with whether there was an honest belief in a mistake of law. I have considered it separately as it is a discrete issue in terms of the issues addressed by the submissions. The Defendants argued that I determined this issue in Johnson No 1 and it could not be considered again in this sentence hearing.

80 At [105] of Johnson No 1 I referred to the case on motive argued by the Prosecutor as being that the Defendant wished to obtain a greater lot yield by removing the significant trees (the forest gums). That is the motive I considered at [191]-[192] of that judgment in light of the fact that I held the Prosecutor had not established that the Defendants had caused the removal of the forest gums. At [193]-[194] I referred to the turf farm and made general findings about the Prosecutor being informed of the intention to clear an area of Bona Vista for use as a turf farm in the letter from Mr Johnson to Council officer Ms Gee dated 21 April 2006 and in the earlier telephone call to Ms Gee on 18 April 2006, the date of the offence. I did not directly address the issue of whether the turf farm was a subterfuge in Johnson No 1. The Defendants’ submission that I determined that issue and that such a finding is incontrovertible and cannot be reviewed in this sentence hearing does not therefore apply.

81 The statements on the turf farm at [193] in Johnson No 1 are essentially obiter in the context of that judgment. The issue of whether the turf farm was a subterfuge used to hide the intention to clear the area on Bona Vista can be considered.

82 The Prosecutor bears the onus of establishing beyond reasonable doubt that the turf farm was a subterfuge. The Prosecutor made extensive submissions (summarised in par 58-60) on why the turf farm was a subterfuge. While the Prosecutor has sought to emphasise the lack of concrete evidence of the turf farm in terms of inclusion in the formal subdivision plans submitted to the Council and lack of public relations material, there is evidence of a plan of the turf farm being provided to Mr Friend, the owner of the company which did the clearing giving rise to the offence (see [69]-[72] Johnson No 1) and the proposal is referred to in the letter dated 13 April 2006 sent to the Prosecutor by the Defendants (at [194] inter alia in Johnson No 1). It was also referred to in the telephone call from Mr Johnson to Ms Gee on 18 April 2006 (see [194] Johnson No 1). Accordingly, there is evidence that a turf farm plan was being considered by the Defendants before the offence occurred.

83 To find that this proposal was a subterfuge to cover up tree clearing has far less force in light of my finding in Johnson No 1 (at [192] inter alia) that the significant trees, the forest gums, were not knocked over as a result of the Defendants’ actions. As submitted by the Defendants’ counsel it strains credulity to think that this subterfuge would be undertaken to facilitate the removal of the black wattles given the evidence of Mr Rhodes, town planner, that permission for their removal was likely to be granted when residential development occurred on Bona Vista. To find for the Prosecutor would also require that the evidence of Ms Romano, who gave written and oral evidence on oath of her involvement in planning for the plant nursery, part of the turf farm scheme, must be disbelieved. There is no basis I consider I should do so. The evidence of Ms Romano who worked on the proposal and had discussions with community members was that it was not a commercial venture. Her evidence in cross-examination was that in relation to the plants she was concerned with, proximity to water was not an issue so that Bona Vista was an appropriate site. I accept her evidence.

84 While the Prosecutor also relied on the affidavit of Mr Nej and the attached correspondence to demonstrate that JPG withdrew the development application for the turf farm, I agree with the Defendants’ submission (par 52) that the fact the turf farm plan was withdrawn due to the changes in zoning of the land to allow residential development and in light of the Council’s advice that development consent was unlikely to be granted, does not support a finding the turf farm was a subterfuge. The evidence in Johnson No 1 confirms that the development application was lodged after discussions on the day of the offence between Mr Ryan and Mr Johnson essentially as a means of regularising the clearing activity.

85 The Cummings affidavit relied on by the Prosecutor to demonstrate the planning history of the site and the Defendants’ involvement in seeking rezoning of the site for residential development is not probative of any relevant matter in the context of this case.

86 The Prosecutor has not established beyond reasonable doubt that the turf farm plan was a subterfuge.

Objective seriousness of offence

87 Having made the above findings it still remains necessary for me to characterise the manner of commission of the offence for sentencing purposes. While I have found the Defendants had obtained legal advice on a related matter not the subject of the charge, and the inference they relied on that advice as being true is established, does not render all of their actions reasonable and without culpability in the circumstances of this case. The Prosecutor (par 41-43) submitted there are aggravating circumstances because the offences were premeditated, deliberate and required planning.

88 It is first necessary to consider the letters attached to Ms Gee’s affidavit sworn 3 May 2007. Although the Defendants’ counsel sought to argue that the letters from the Council’s officers attached to Ms Gee’s affidavit did not provide any relevant warning to the Defendants but simply suggested that it was necessary to obtain expert advice about vegetation removal, I consider the Prosecutor can rely on the text of the letters as relevant and clear warnings to the Defendants about the need for development consent for the removal of native vegetation. Accordingly, I consider that the Defendants were on notice of the need to obtain development consent for tree removal and should have been cautious in undertaking tree removal on Bona Vista. The importance of considering laws prohibiting tree removal is emphasised in Tauzsik (see Prosecutor’s submissions at par 57) and the significance of prior warnings is relevant to consider, see also Garrett v Williams at [110].

89 The findings on the evidence at [157]-[161] in Johnson No 1 leading up to and following the date of the clearing giving rise to the offence then need to be considered. I found that Mr Johnson did not refer to vegetation removal in a telephone conversation with Mr Ryan on 12 April 2006 and Mr Ryan did not give advice to Mr Johnson that the turf farm did not require development consent contrary to matters put to Mr Ryan in cross-examination by the Defendants’ counsel. At [158] I accepted Mr Ryan’s evidence concerning the content of the telephone call with Mr Johnson on 12 April 2006. The letter sent by JPG signed by Mr Johnson dated 13 April 2006 to the Council does not refer to the intention to clear vegetation and/or trees. I also considered at [160] that the letter of 21 April 2006 sent by Mr Johnson was not accurate in relation to the contents of the telephone conversation with Mr Ryan on 12 April 2006.

90 The letter dated 13 April 2006 faxed to Mr Ryan at the Council the day before the Easter break in 2006 and not received by him until the day the tree clearing occurred on 18 April 2006, and my finding in Johnson No 1 at [158] about the terms of a telephone conversation between Mr Johnson and Mr Ryan on 12 April 2006, confirm my view that the Defendants acted recklessly. While belated efforts were made to communicate with the Council no effective notice was given until the morning of the activities giving rise to the offence when Mr Johnson telephoned Ms Gee at the Council chambers. More could and should have been done by the Defendants to clarify with the Council whether the tree clearing was lawful before the clearing work proceeded.

91 I do not consider that the Defendants have acted in a manner which aggravates the circumstances of the offences to the extent argued by the Prosecutor. I will not sentence on the basis that there are aggravating circumstances surrounding the commission of the offence. The objective seriousness of the offence based on the Defendants’ culpability is therefore less than if those aggravating features were present.

Extent of environmental harm

92 The Prosecutor did not tender any evidence on environmental harm. The Defendants relied on the evidence of Mr Draper (par 33) that the black wattles cleared were not threatened species. The evidence of Dr Clements (par 29 - 31) was that the trees were degraded as the area had been the subject of previous clearing for agricultural purposes and the trees are considered a weed in some circumstances as they invade land after cattle grazing and this black wattle was likely to be less than 10 years old. Mr Rhodes’ evidence (par 32) was that the removal of the black wattles was inevitable given the subsequent development approval for subdivision granted, as identified in his affidavit. The Prosecutor submitted that there was low environmental harm but the harm was not trivial given the number of trees (about 200 black wattles) and the size of some as recorded by Ms Clements as being over 4m. I also accept that submission in light of the affidavit evidence of Dr Clements, Mr Draper and Mr Rhodes tendered by the Defendants.

Application of s 10 CSP Act

93 The individual defendant, Mr Johnson, applied for an order under s 10(1) of the CSP Act that no conviction be recorded against him. Where a person is found guilty s 10(1) provides that the Court may, without proceeding to conviction, direct that the relevant charge be dismissed or discharge the person on condition that he or she enter into a good behaviour bond of not more than two years. The matters to be taken into account in determining whether to apply s 10 are (s 10(3)):

(a) the person’s character, antecedents, age, health and mental condition,
(b) the trivial nature of the offence,
(c) the extenuating circumstances in which the offence was committed,
(d) any other matter that the court thinks proper to consider.

94 As acknowledged by the Defendant’s counsel s 10 is not readily applied in environmental matters. He submitted that the application of s 10 would support an appropriate application of the totality principle. The Defendants’ counsel submitted that if JPG is to be fined on the basis of the seriousness of the offence, the making of a s 10 order in relation to Mr Johnson is appropriate as there is no question of double punishment. It is an inappropriate case to give both Defendants an identical penalty. A marked discrepancy in sentence for such defendants is not suggestive of error: EPA v Barnes [2006] NSWCCA 246. The objective seriousness and subjective circumstances of this case suggest a s 10 order is appropriate for Mr Johnson as he held a belief based on the advice of an expert and there was no premeditation by him to commit an offence. Mr Johnson’s counsel referred to cases where s 10 was applied in light of low objective seriousness and low environmental harm such as Mosman Municipal Council v Toltz [2002] NSWLEC 175, Holroyd City Council v El-Khouri [2008] NSWLEC 83, Thorneloe v Filipowski (2001) 52 NSWLR 60 and Environment Protection Authority v Brazel (No 3) (2002) 121 LGERA 156.

95 The Prosecutor accepted that a s 10 order is not excluded where a defended hearing has taken place but opposed the application of s 10 in this case. Further the Defendants’ counsel’s submission that this is an appropriate way to apply the totality principle is incorrect. Accepting Mr Johnson’s prior good character, there are no extenuating circumstances, rather there are aggravating features given the warning letters from the Council concerning the need to obtain development consent for tree removal and the large number of trees removed. The causes of the offence were within Mr Johnson’s control and it is not a case where as a matter of practical reality Mr Johnson could not have done anything to ensure the offence did not occur.

Finding on s 10

96 As identified by the Prosecutor the discretion conferred by s 10 is wide ranging, albeit to be exercised judicially, relying on Thorneloe v Filipowski per Spigelman CJ (Hulme and Howie JJ concurring) at [151] – [155]. At [178] Spigelman CJ stated a relevant consideration was what a defendant could have done to avert the offending event. He considered that was unlikely to be determinative in the case of a serious offender. Where there is comparatively minor pollution by a first offender that consideration is entitled to weight.

97 Section 10 can be applied even where an offence is found not to be trivial in light of the circumstances of the offence (R v Paris [2001] NSWCCA 83, R v Piccin (No 2) [2001] NSWCCA 323. The fact that the Defendant has been found guilty following a contested hearing also does not prevent the making of an order under s 10.

98 The Prosecutor referred to several cases which have considered the application of s 10 in this Court for offences concerning tree removal. In Cooper v Coffs Harbour City Council (1997) 97 LGERA 125, the appellant had removed a number of trees contrary the conditions of a development consent. In the appeal against sentence Howie AJ considered the offence was not trivial and no circumstance justified dealing with it on the basis of s 10 notwithstanding the defendant’s good character. In Council of Camden v Poyntz [2007] NSWLEC 439 Talbot J refused an application under s 10 and considered the prevalence of the offence of clearing trees (13 trees cut down carelessly in that case) so that he considered general deterrence was an important consideration. Given that Mr Johnson is engaged in property development such a consideration also applies here.

99 Mr Johnson’s counsel referred to cases where s 10 has been applied in environmental offences. In Brazel Talbot J found there was potential for harm as a result of pesticide escaping into a gutter. He considered whether any step could have been taken to prevent the escape, referring to Spigelman CJ in Thorneloe, and determined that the defendant had acted reasonably and sensibly with the appropriate degree of caution in the circumstances. In El Khouri s 10 was applied to a defendant who had breached the conditions of development consent where she had limited involvement in and no control over building works which were controlled by her husband.

100 Ultimately whether s 10 ought be applied must be decided in the circumstances of the particular case. In this case Mr Johnson owns and is closely involved in the activities of his large property development company. He was directly involved in organising the clearing work which gave rise to the commission of the offence by JPG and as a result was found guilty separately as the “heart and mind” of that company. While Mr Johnson relied on a mistaken belief of law, I have found that he acted recklessly in the circumstances of the offence as I found them (par 87 - 90). The offence is not trivial given those circumstances, the nature of the offence is serious, and the number of trees removed (200) is large. The offence could have been avoided by Mr Johnson not causing the clearing work to commence until he had confirmation from Mr Ryan at the Council that his understanding that he did not need development consent was correct. The circumstances are different to the cases referred to above where a s 10 order has been made.

101 Therefore while I accept that Mr Johnson is of good character based on the character evidence before me, and has no prior convictions, I do not consider s 10 should be applied.

102 I find below the totality principle does not apply in these matters as the charges are not multiple charges of one offence but rather two separate and distinct charges of two different defendants arising from the same circumstance. The submission that the application of s 10 to Mr Johnson would be an appropriate way of applying the totality principle is therefore not correct.

103 The Prosecutor submitted, and I agree, that general deterrence is an important consideration in the imposition of penalties for planning and environmental offences; see Gittany at [102] – [103], inter alia. This is particularly the case in this matter given the Defendants are engaged in property development and compliance with planning laws is fundamental to that business, see also Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349 Preston J at 364-6 referring to the need for general deterrence in relation to offences under s 125 EP&A Act.

Specific deterrence

104 The Prosecutor argued that specific deterrence is necessary as the Court should not be satisfied that the Defendants will not or are unlikely to commit similar offences in the future. There is no evidence that the Defendants have insight into their offending. Due to recent changes in the LEP as a result of the SEPP MP amendment, the Defendants have the opportunity to undertake residential subdivision on Bona Vista and therefore the opportunity to undertake development in similar circumstances to those giving rise to the commission of the offences; see Gittany at 214. Mr Johnson continues as the sole director of the company and none of the changes implemented prevent Mr Johnson from repeating the offence.

105 The Defendants argued that measures have been put in place by JPG, as identified in Mr Mutton’s evidence, that will ensure there will be no repeat of such an offence. Mr Mutton’s affidavit outlines (par 21) changes in management and company practices and the appointment of more, skilled, personnel to monitor projects. Vegetation removal is specifically considered by management. Consequently there is unlikely to be a repeat of any similar offence and a penalty taking into account specific deterrence is not warranted.

106 I accept the Defendants’ submissions based on Mr Mutton’s evidence that important changes have been implemented by the company to ensure there is no repeat of this type of offence. I do so mindful that this is the first offence of the company and that it has been in operation for some time with no previous convictions for breaching the planning laws. The majority of the High Court (Mason CJ, Brennan, Dawson & Toohey JJ) in Veen vthe Queen (No 2) (1988) 164 CLR 465 referred to the relevant consideration in relation to the need for specific deterrence as whether the circumstances of an offence reflected “an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law” at 477. I consider this case comes within the former and that there is no need for specific deterrence in the particular circumstances of this case.

Mitigating circumstances

107 There are some matters to consider in mitigation of any penalty, including matters referred to in s 21A of the CSP Act. Prior good character must be considered as a mitigating factor, s 21A(3)(f) CSP Act. The Prosecutor accepted that Mr Johnson is a man of prior good character and that this should be given weight, see also Ryan v The Queen (2001) 206 CLR 267. A large number of substantive references have been tendered which attest to Mr Johnson’s good character and I will give these substantial weight.

108 I consider that based on these character references and Mr Mutton’s evidence which I considered on specific deterrence that both Defendants are unlikely to reoffend (see s 21A (3)(g) CSP Act).

Remorse

109 Section 21A(3)(i) states that whether the offender has shown remorse can be taken into account. A 2008 amendment to s 21A(3)(i) added subsections (i) and (ii) to provide that remorse, as a mitigating factor, be taken into account only if

(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and
(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)

110 The evidence of remorse relied on by the Defendants is the evidence of expressions of remorse by Mr Johnson to Mr Mutton, who attests to these in his affidavit. The Defendants’ counsel submitted that it is common in criminal matters for persons other than a defendant to rely on expressions of remorse as expressed to other people. The 2008 amendments to s 21A(3)(i) do not specify that the evidence must be direct from Mr Johnson so that Mr Mutton’s evidence can be given weight. The Defendant submitted that his evidence could have been tested by the Prosecutor when Mr Mutton gave his evidence.

111 The Prosecutor submitted that there was no evidence of remorse as the individual and corporate Defendants have not sworn any evidence relevant to remorse on which they can be tested. A corporate defendant should have a director swear an affidavit so that a claim of remorse can be tested (Newcastle City Council v Pepperwood Ridge Pty Ltd (2004) 132 LGERA 388 at [29]). The evidence of Mr Mutton was allowed to be read over the Prosecutor’s objections. It is difficult to test Mr Mutton’s evidence as to whether he considered the expression of remorse by Mr Johnson was genuine. The best evidence is from the Defendant himself and there is no explanation provided as to why he in his own right or for the corporate Defendant has not provided an affidavit on which he can be tested.

Finding on remorse

112 Reliance on unsworn material in a sentence hearing was considered in R v Elfar, a case referred to by the Prosecutor. The Court of Criminal Appeal per Whealy J (Ipp JA and Davidson AJ concurring) stated at [24] – [25]:

24 The Crown referred to two decisions of this court - R v Qutami [2001] NSWCCA 353; [2001] 127 A Crim R 369 and R v McGourty [2002] NSWCCA 335. In the latter of these cases Wood CJ at CL said, at paragraph 24:

"So far as I can see, there was no factual basis for the finding made by his Honour beyond a self-serving and untested statement made by the respondent to the psychologist. Recently this court has criticised the practice of placing material of this kind before sentencing judges in an attempt to minimise the objective seriousness of a crime otherwise apparent on the face of the record: Regina v Qutami [2001] NSWCCA 353, at para 58 and 59 per Smart AJ, and at para 79 per Spigelman CJ. I wholeheartedly agree with the criticism offered in that case. If an offender appearing for sentence wishes to place evidence before the court which is designed to minimise his/her criminality, then it should be done directly and in a form which can be tested."

25 The matters of principle stated in R v McGourty and R v Qutami are plainly important. They require emphatic endorsement by this court. Indeed it needs also to be further emphasised that this principle extends not only to statements in psychological reports, but also to statements by offenders in pre-sentence reports - ( R v Palu per Howie J with whom Levine J and Heydon J agreed [2002] NSWCCA 381; (2002) 134 A Crim R 174 at 185). In addition, the current practice of tendering a note or letter from an offender in sentencing proceedings attracts the same admonishment. Considerable caution should be exercised in reliance upon such exculpatory material where there is a matter in dispute and where no evidence is given by an offender or other direct evidence is not placed before the court. The essential reason for treating the material in that way is precisely because it remains untested. Indeed, where the Crown has either objected to the tender of this type of material or has made it clear, either at the time of tender or when submissions are made, little or no weight should be placed upon the material, that the sentencing court would be entitled to treat the material as being of little or no weight. Indeed, in an appropriate case, it ought to do so.

113 This decision was referred to by Preston J in Garrett v Williams in relation to the actions of a defendant relying on unsworn evidence in the form of a letter tendered in those proceedings. The evidence of remorse relied on by the Defendant, Mr Johnson, in this matter is different in that it is sworn evidence of someone other than the individual Defendant, namely Mr Mutton, attesting to Mr Johnson’s statements of remorse. Mr Mutton was available for cross-examination. Mr Mutton is the CEO of JPG not the sole director, who is Mr Johnson. His evidence concerning corporate practice and the remorse of Mr Johnson has less weight than that of Mr Johnson as he cannot be considered independent of either Defendant.

114 The Defendant submitted that Mr Mutton’s evidence could be tested by the Prosecutor but I agree with the Prosecutor that it is difficult to see how it could be meaningfully tested. Asking Mr Mutton, an employee of the Defendants, whether he considered the statements of remorse made by Mr Johnson were genuine is not an adequate means of testing such statements. Such evidence may carry more weight if it came from a person independent of the Defendants. Mr Mutton is not independent of the Defendants.

115 Criminal actions and defendants are many and varied. Many criminal defendants particularly those from non-English speaking or disadvantaged backgrounds may need to rely on the evidence of others to prove their remorse. As stated by me at the sentence hearing, the experience of this Court is that generally individual defendants in this Court attest directly to their remorse possibly because few suffer disadvantages which inhibit their ability to do so. While there is evidence from Ms Romano, Mr Mutton and Ms Cowper, all employees of JPG, that he experienced reading difficulties, there is no evidence to suggest he suffers such a disadvantage that he could not give direct affidavit evidence. There is correspondence from him to the Council in evidence, particularly the long letter dated 21 April 2006 (exhibit K3) and he owns and runs a substantial property development company suggesting he has considerable communication skills. Mr Johnson is the best person to give evidence of his remorse as an individual.

116 In the case of corporate defendants, I stated in Newcastle City Council v Pepperwood Ridge at [29] that little weight could be given to remorse on the part of a company in the absence of an affidavit of a director as the holder of the relevant state of mind in the company attesting to that. That statement applies in this matter also. Mr Mutton is an employee rather than a director of the corporate Defendant whose sole director is Mr Johnson. The best person to give evidence of the company’s remorse is Mr Johnson.

117 In these circumstances Mr Mutton’s evidence of remorse should be given little weight in relation to JPG and Mr Johnson.

Evenhandedness

118 The principle of evenhandedness or consistency in sentencing requires that the sentence to be imposed should not be inconsistent with sentences imposed for the same offence in like cases: Lowe v The Queen (1984) 154 CLR 606 per Mason J at 610-611. This principle is generally qualified by recognising that every matter must be determined on its own facts.

119 The Prosecutor referred to a number of cases involving tree clearing offences under s 125(1) of the EP&A Act including Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349 and the cases referred therein at [105], Hornsby Shire Council v Devaney [2007] NSWLEC 199, which referred to Council of Camden v Tax (2004) 137 LGERA 368, Hornsby Shire Council v Moit [2001] NSWLEC 50 and Byron Shire Council v Fletcher (2005) 143 LGERA 155 (at [72]-[74]), and Gittany. I summarised several of these cases recently in Manly Council v Taheri [2008] NSWLEC 314 at [99]-[102].

120 In Cameron at [105], Preston J discussed a number of cases involving s 125(1) offences, noting the consequential fines imposed in each. In both Cameron and Gittany, his Honour referred to the fact that, generally, sentences for offences against s 125(1) have increased in recent years due to the increased recognition of the seriousness of contravention of statutory requirements relating to tree preservation.

121 The Prosecutor noted in submissions that different considerations may apply depending on whether an offence is prosecuted for breach of a “tree removal order” or a breach of s 76A of the EP&A Act. In the latter case, the substance of the offence is in the breach of orderly planning processes whereas, in the former, it is in the breach of a council order. The Prosecutor submitted that, so far as purpose of sentencing is concerned, there is little difference between this case and others involving breach of planning requirements. I agree with that submission and consider that is reflected in the cases referred to above as potentially relevant because they are offences relating to tree clearing, some in breach of the EP&A Act.

122 The principle of parity in sentencing requires that, where there are two or more defendants, the sentence to be imposed on one should not be inconsistent with sentences imposed on different defendants involved in the commission of the offence; Lowe v The Queen at 610-611, R v Henry (1999) 46 NSWLR 346 at [12]. Disparity may be justified where differing degrees of criminality are involved; see Laurentiu v Becheru (1992) 63 A Crim R 402 at 420. Both Defendants should be sentenced consistently, taking into account different mitigating circumstances.

Totality principle or double punishment

123 The Prosecutor argued and I accept, contrary to the Defendants’ submissions, that the totality principle does not apply here. That principle is directed to multiple offences of the same defendant (see Johnson v The Queen (2004) 78 ALJR 616 at [18]). These matters are two separate and distinct offences. The Prosecutor did accept that the issue of double punishment was relevant in recognition that both Defendants would pay the penalty from the same “pot of money” given that Mr Johnson is the sole shareholder of JPG; see Sackville J in Minister for Environment and Heritage v Greentree (No 3) (2004) 136 LGERA 89 at [77] – [78]. The application of this approach would mean that the two Defendants would both have a reduction in their penalties.

Costs

124 The Defendants accept that they must pay the Prosecutor’s costs but dispute that all costs should be payable given that the Prosecutor did not succeed in proving that the Defendants caused the removal of the forest gums, the significant trees referred to in the DCP. The Prosecutor estimates its costs at $177,979.44 (solicitor’s letter in exhibit BB). The Defendant submitted that an appropriate reduction was by a third. The Prosecutor considered a much smaller reduction of legal costs was warranted as the little extra time was required to be spent on the forest gum issue when the whole of the case at the hearing is considered. I do not consider the forest gums issue occupied up to a third of the hearing time before me as the evidence for all vegetation was considered together in Johnson No 1. A lesser reduction of costs is warranted. The best approximation of that amount is a reduction of one sixth of the Prosecutor’s costs. The amount of costs payable is therefore $148,316.20 for both matters.

Penalty

125 In relation to Mr Johnson, taking into account the objective circumstances of the offence, including the low environmental harm and the generally low level of culpability of the Defendant, the legal costs payable and allowing some reduction in light of Mr Johnson’s good character, no prior convictions and that he is unlikely to reoffend the appropriate, the penalty is $18,000. I have not taken remorse into account to the extent that I would have if direct evidence or independent third party evidence of this had been available. That is a relatively low penalty for this type of offence in light of recent Court decisions concerning tree clearing offences and reflects the particular objective and subjective circumstances I have found to exist.

126 The appropriate amount of penalty for JPG taking into account the need for consistency is $22,000 as there are fewer mitigating matters which I am able to take into account in terms of those matters referred to in s 21A of the CSP Act.

127 Taking into account the issue of double punishment (par 122) I will reduce both amounts by $3,000.

Orders

128 In matter 50027 of 2007 the Court orders that:

1. The Defendant Mr Johnson is convicted of the offence with which he is charged.
2. The Defendant is fined $15,000.

129 In matter 50029 of 2009 the Court orders that:

1. The Defendant Johnson Property Group Pty Limited is convicted of the offence with which it is charged.

2. The Defendant is fined $19,000.

130 The Defendants are liable for the Prosecutor’s costs in both matters in the amount of $148,316.20.