Hunters Hill Council v Carter

[2018] NSWLEC 84

Land and Environment Court

New South Wales

Medium Neutral Citation:	Hunters Hill Council v Carter [2018] NSWLEC 84
Hearing dates:	14 May 2018
Date of orders:	31 May 2018
Decision date:	31 May 2018
Jurisdiction:	Class 5
Before:	Moore J
Decision:	Orders at [115] and [116]
Catchwords:	PROSECUTION - lopping/topping of 13 trees without appropriate consent of council - consent of council required - plea of guilty - agreed facts demonstrate plea appropriate - extent of environmental harm caused - environmental harm significant - held to be aggravating factor - whether causing lopping/topping of trees reckless - recklessness established - held to be aggravating factor - whether lopping/topping was undertaken for financial benefit - not undertaken for financial benefit - assessment of seriousness of the offending conduct - offending conduct to be characterised as being in the middle of the low range of seriousness PENALTIES - no proper basis to apply s 10 of Crimes (Sentencing Procedure) Act 1999 - defendant to be convicted - need to provide for both specific and general deterrence - instinctive synthesis of objective facts of offending conduct and defendant’s subjective factors - indicative starting sentence of $60,000 fine for offence - 25% discount for early guilty plea - appropriate penalty fine of $45,000 REMEDIAL ORDERS - agreement between prosecutor and defendant for orders for period of years to monitor surviving trees and address any arboricultural problems - orders made by consent COSTS - defendant ordered to pay prosecutor’s costs and investigation costs and expenses in agreed sum of $30,000
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999, ss 3, 10, 21A and 22 Environmental Planning and Assessment Act 1979, ss 125, 125B and 126 Fines Act 1996, s 6 Hunters Hill Local Environmental Plan 2012, cl 5.9 Protection of the Environment Operations Act 1997, s 245
Cases Cited:	Burwood Council v Abdul-Rahman (No 2) [2017] NSWLEC 177 Burwood Council v Jarvest Pty Ltd [2011] NSWLEC 109 Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Chief Executive, Office of Environment and Heritage v Ausgrid (2013) 199 LGERA 1; [2013] NSWLEC 51 Chief Executive, Office of Environment and Heritage v Rummery [2012] NSWLEC 271 City of Sydney v Adams [2015] NSWLEC 206 EPA v Barnes [2006] NSWCCA 246 Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299; [2006] NSWLEC 419 Hunters Hill Council v Gary Johnston [2013] NSWLEC 89 Ku-ring-gai Council v Edgar [2017] NSWLEC 49 Lake Macquarie City Council v Gordon [2017] NSWLEC 122 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Mosman Municipal Council v Menai Excavations Pty Limited (2002) 122 LGERA 89; [2002] NSWLEC 132 Pittwater Council v Scahill (2009) 165 LGERA 289; [2009] NSWLEC 12 R v Olbrich 199 CLR 270; [1999] HCA 54 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 383 Veen v The Queen (No 2) 164 CLR 465; [1988] HCA 14 Willoughby City Council v Rahmani [2017] NSWLEC 166
Category:	Sentence
Parties:	Hunters Hill Council (Prosecutor) Michael John Carter (Defendant)
Representation:	Counsel: Mr P Brown, solicitor (Prosecutor) Mr P Pagin, solicitor (Defendant)   Solicitors: HWL Ebsworth (Prosecutor) Navado Lawyers & Solicitors (Defendant)
File Number(s):	371778 of 2017
Publication restriction:	No

TABLE OF CONTENTS

Introduction

The charge

The statutory provisions

Changes in numbering of the Environmental Planning and Assessment Act 1979

The relevant statutory provisions

The provisions of the LEP

The Statement of Agreed Facts

The Agreed Bundle of Documents

Agreed matters relevant to Mr Carter’s offending conduct

A more detailed outline of events

The Prosecutor’s expert arboricultural evidence

Mr Carter’s evidence

Mr Carter's plea of guilty

The sentencing framework

The legislative provisions

The maximum penalty

Aggravating factors

Introduction

Harm to the environment

Financial gain

Recklessness

Mitigating subjective factors

Introduction

Prior convictions (s 21A(3)(e))

Mr Carter's character (s 21A(3)(f))

Likelihood of reoffending (s 21A(3)(g))

Contrition and remorse (s 21A(3)(i))

Entry of the guilty plea (s 21A(3)(k))

Cooperation with the Prosecutor (s 21A(3)(m))

Deterrence

Introduction

Specific deterrence

General deterrence

The sentencing process

Mr Carter's financial capacity

The discretion in s 10 of the Sentencing Procedure Act

The agreed remedial orders

Even-handedness in sentencing

Conclusion

Orders

JUDGMENT

Introduction

1. By Summons filed on 8 December 2017, Hunters Hill Council (the Prosecutor) commenced proceedings to prosecute Mr Michael Carter (Mr Carter) for an offence against the Environmental Planning and Assessment Act 1979 (the EP&A Act). The conduct that gave rise to the offence with which Mr Carter has been charged is that he engaged an unknown tree-lopping contractor to lop/top 13 trees protected by the Hunters Hill Local Environmental Plan 2012 (the LEP) - as it was at the time of Mr Carter’s offending conduct - without the consent of the Prosecutor, where consent for the purpose of cutting down/lopping of those trees was required to be given by the Prosecutor.

2. Mr Carter was, as at 9 December 2015 (the date of the lopping/topping of the thirteen trees), an owner (together with his wife) of 15 Pains Road, Hunters Hill (the property). Buffalo Creek/Buffalo Creek Reserve is located to the north-north-east of Mr Carter's property.

The charge

3. The Summons commencing these proceedings set out the charge against Mr Carter pleading that:

… on or about 9 December 2015 at Hunters Hill in the State of New South Wales, he committed an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 ("the Act") in that he did the following thing which was forbidden to be done under the Act:

He did, by his servants, agents and/or contractors, cut down and lop trees on land, being trees which were prescribed by a development control plan made by the Prosecutor and which were prohibited from being cut down and lopped under clause 5.9(3) of the Hunters Hill Local Environmental Plan 2012 without the authority conferred by:

(a)   a development consent; or

(b)   a permit granted by the Prosecutor,

where no such development consent or permit was granted beforehand.

4. Appropriate particulars were pleaded in the Summons.

The statutory provisions

Changes in numbering of the Environmental Planning and Assessment Act 1979

5. Although the rearrangement of the EP&A Act, and the adoption of a new decimal numbering system for its provisions, took effect from 1 March 2018, before this appeal was heard, this prosecution was commenced before these changes to the EP&A Act came into effect. It is, therefore, convenient to refer to the relevant statutory provisions as they applied when the prosecution was commenced.

The relevant statutory provisions

6. There were three relevant provisions of the EP&A Act at the time of Mr Carter’s offending conduct. They were ss 125(1), 125B(2)(b)(i) and 126(3)(a). The first of these provisions was in the following terms:

125   Offences against this Act and the regulations

(1)   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 Secretary, 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 if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act.

7. The second was in the following terms:

125B   Maximum penalties for offences against Act: Tier 2

(1) This section applies to an offence against this Act under section 125 (1), other than an offence to which section 125A applies or an offence for which a tier 3 maximum penalty applies.

(2)   A person who is guilty of an offence to which this section applies is liable to a tier 2 maximum penalty, being a penalty not exceeding:

(a)   …

(b)   in the case of an individual:

(i)   $500,000, and

(ii)   ...

8. The third was in the following terms:

126   Additional provisions relating to penalties

…

(2A) Part 8.3 of the Protection of the Environment Operations Act 1997 (Court orders in connection with offences) applies to an offence against this Act or the regulations in the same way as it applies to an offence against that Act or the regulations under that Act, but only in relation to proceedings before the Court and subject to any modifications prescribed by the regulations under this Act.

9. As a consequence of the importation of Pt 8.3 of the Protection of the Environment Operations Act 1997 (the POEO Act) by s 126 of the EP&A Act quoted above, s 245 of the POEO Act can be utilised to provide the foundation for the proposed remedial consent orders discussed later at [104] to [107]. The POEO Act provision is in the flowing terms:

245   Orders for restoration and prevention

The court may order the offender to take such steps as are specified in the order, within such time as is so specified (or such further time as the court on application may allow):

(a)   to prevent, control, abate or mitigate any harm to the environment caused by the commission of the offence, or

(b)   to make good any resulting environmental damage, or

(c)   to prevent the continuance or recurrence of the offence.

The provisions of the LEP

10. The LEP - as in effect as at the date of Mr Carter’s offending conduct - provided, in cl 5.9, as follows:

5.9   Preservation of trees or vegetation

1.   The objective of this clause is to preserve the amenity of the area, including biodiversity values, through the preservation of trees and other vegetation.

2.   This clause applies to species or kinds of trees or other vegetation that are prescribed for the purposes of this clause by a development control plan made by the Council.

3.   A person must not ringbark, cut down, top, lop, remove, injure or wilfully destroy any tree or other vegetation to which any such development control plan applies without the authority conferred by:

(a)   development consent, or

(b)   a permit granted by the Council.

11. Hunters Hill Consolidated Development Control Plan 2012 (the DCP) applied to the property as at the date of his offending conduct. Pursuant to cl 2.3.3 of the DCP, the trees which are the subject of the charge were prescribed as trees which were prohibited from being ringbarked, cut down, topped, lopped, removed, injured or wilfully destroyed without the authority conferred by a development consent or a permit granted by the Prosecutor.

The Statement of Agreed Facts

12. The legal representatives of the Prosecutor and Mr Carter settled a Statement of Agreed Facts (the SOAF) which was tendered.

The Agreed Bundle of Documents

13. The legal representatives of the Prosecutor and Mr Carter also agreed on a Bundle of Agreed Documents (the BOAD) which was tendered.

Agreed matters relevant to Mr Carter’s offending conduct

14. The relevant matters requiring to be considered can be derived from the SOAF and the BOAD. It is therefore appropriate to adapt, from that SOAF, an outline of the matters that require to be considered during the course of the sentencing hearing on 14 May 2018. The relevant agreed events were:

1. On 9 December 2015, Mr Carter contracted an unknown tree-lopping contractor to carry out tree-lopping/topping works at the property. Mr Carter agreed to pay $3,350 cash for this activity;

2. Each of the trees was alive at the time of its lopping/topping;

3. The unknown tree-lopping contractor asserted to Mr Carter that no approvals were necessary for the tree works proposed to be undertaken;

4. The tree-lopping/topping works at the property did require the approval of the Prosecutor;

5. Despite the assurances to the contrary to Mr Carter by the unknown tree-lopping contractor, none of the trees was identified by the Prosecutor as an “urban environmental weed”, nor were any of them of a species listed as “noxious” for the Prosecutor's local government area under the Noxious Weeds Act 1993;

6. On 9 December 2015, Mr Carter did pay the unknown tree-lopping contractor $3,350 in cash for the tree-lopping/topping work which had been undertaken for Mr Carter.

A more detailed outline of events

15. A more detailed outline of the relevant events can be seen from that which appears below (an edited version of portion of the SOAF):

1. A schedule showing the trees which were lopped/topped which were the subject of the charge was included in the BOAD. The description of each tree included its:

1. species;

2. trunk diameter (millimetres) at time of the offence;

3. estimated tree height (metres) at time of the offence;

4. stump height (millimetres) at time of the offence;

5. estimate canopy radius (metres) at time of the offence;

6. age class at time of offence;

7. estimated vigour at time of offence;

8. estimated condition at time of offence.

2. An aerial photograph showing the location of the trees which were the subject of the charge, numbered by reference to the schedule, was contained in the BOAD.

3. Photographs showing the trees which are the subject of the charge which Mr Carter directed be lopped/topped were contained in the BOAD. The photographs were taken on 15 December 2015.

4. Prior to the date of the offence, the unknown tree-lopper had come to Mr Carter's property unannounced and asked for work cutting down trees at the property. These visits occurred on several occasions and were unsolicited.

5. On the morning of 9 December 2015, the unknown tree-lopper arrived at the property unannounced, again asking Mr Carter for work cutting down trees at the property.

6. The unknown tree-lopper provided Mr Carter with a business card (copy in the BOAD). Investigations by the Prosecutor revealed that this business card was not the business card of the actual unknown tree‑lopper who attended at the property to cut down and lop the trees, and the Prosecutor, through its investigations, was unable to locate this person.

7. Whilst Mr Carter had not planned that any tree-lopping or cutting work occur on 9 December 2015, the unknown tree-lopper was insistent that work be carried out on this day, and Mr Carter reluctantly agreed to work being carried out on this day.

8. Mr Carter led the unknown tree-lopper around his property and pointed out the trees which he wanted cut down and lopped, which are the trees the subject of the charge.

9. Prior to the lopping/cutting works commencing, Mr Carter asked the unknown tree-lopper whether permission from Council was required. The lopper said there was nothing to worry about as the trees on the property were classified as "weeds", with one already rotten, which did not require Council permission prior to the lopping/cutting of trees. Mr Carter relied on the unknown tree-lopper's representations and did not make any enquiries with the Council prior to the trees being cut down and lopped. Enquiries with the Council would have revealed that at no time were the trees on Mr Carter's property classified as "weeds" that would not require permission to cut/lop.

10. Mr Carter then left his property to go to work, and the unknown tree‑lopper also left the property.

11. Later in the day on 9 December 2015, the unknown tree-lopper returned to the property, together with his work crew. These people then cut down and lopped the trees which are the subject of the charge. The trunks and branches of the trees that had been cut down and lopped were put through a woodchipper. The woodchips were taken away by the work crew in their truck.

12. At about 4:00 pm on 9 December 2015, the Prosecutor received a complaint about vegetation clearing at the property. A copy of this complaint, together with a photograph of the property taken during the tree-lopping and cutting works, was in the BOAD.

13. Ms Jacqui Vollmer, Bushland Management Officer employed by the Prosecutor, then attended at the property.

14. The trees had been cut down and lopped when Ms Vollmer arrived at the property. Ms Vollmer took photos of the trees which had been cut down and lopped. These photographs of the trees taken by Ms Vollmer on 9 December 2015 were in the BOAD.

15. Mr Carter paid the unknown tree-lopper in cash, in the amount of approximately $3,350.00.

16. Mr Carter provided two reasons for cutting down/lopping the trees to an investigator appointed by the Prosecutor. Firstly, due to concern that the trees were getting quite high and that branches may fall down in high winds causing injury to persons or damage to property and, secondly, because Mr Carter was intending to install solar panels on the roof of the dwelling house on the property and some of the trees were getting in the way of the northern sun.

17. There was no permit or development consent sought by Mr Carter, or obtained from the Prosecutor, whether by Mr Carter or otherwise, for the cutting down and lopping of the trees.

18. Mr Carter participated in an electronically recorded interview with an investigator appointed by the Prosecutor. Mr Carter was cooperative and gave admissions with respect to the commission of the offence.

19. The tree-cutting and lopping works which are the subject of the charge are described as lopping or topping under Australian Standard AS4373-2007 Pruning of Amenity Trees (the Standard).

20. Definitions 3.31 and 3.44 respectively of the Standard provide the following:

3.31   Lopping - The practice of cutting branches or stems between branch unions or internodes

3.44   Topping - Reducing the height of a tree through the practice of lopping.

Section 8 of AS4373-2007 Pruning of Amenity Trees - Unacceptable Practices includes 8.1 Lopping and topping, which provides:

Lopping (see Clause 3.31) and topping (see Clause 3.44) are unacceptable practices for the following reasons:

(a)   They increase the rate of shoot production and elongation

(b)   The resulting regrowth is weakly attached and becomes prone to failure or collapse

(c)   The stubs may decay

(d)   The natural habit of the tree is destroyed

(e)   They may reduce the lifespan of the tree

(f)   They predispose trees to fungal infections and insect attack

The Prosecutor’s expert arboricultural evidence

16. The Prosecutor engaged Mr Peter Castor, an expert consultant arborist, to examine and report upon the condition of the trees on the property that had been lopped/topped. Mr Castor provided two affidavits which were read in these sentencing proceedings. Mr Castor was not required for cross‑examination.

17. Mr Castor undertook a visual tree assessment on 15 March 2018. This was the subject of an expert report appended to his second affidavit - one dated 5 April 2018.

18. He reported that, of the 13 reassessed trees, three had died as a result of the cutting with no emergent suckering or regrowth. The remaining 10 trees had grown suckers from epicormic buds adjacent to lopping/topping cuts to varying lengths.

19. Mr Castor’s conclusions, set out at page 2 of his report of 3 April 2018, were that:

1. the structural condition of all cut trees was described as poor, given the structural defect created by the lopping/topping cuts;

2. many of the suckers were fast-growing but were weakly attached and prone to failure or collapse;

3. branch failure was expected in the near future, given the weak attachment of the regrowth;

4. management of the remaining 10 trees was needed to mitigate risk of injury from future branch failure or collapse.

Mr Carter’s evidence

20. Mr Carter affirmed an affidavit dated 4 May 2018. This affidavit was read, thus becoming evidence in the proceedings. Mr Carter was required for cross-examination. It will be necessary to refer, later, to limited material in Mr Carter's affidavit and to portions of his cross-examination by the Prosecutor.

Mr Carter's plea of guilty

21. On 2 February 2018, Mr Carter entered a plea of guilty to the offence charged. This plea was entered before Robson J as the List Judge on that date. There are two matters to be observed concerning Mr Carter's guilty plea.

21. First, I am satisfied, on the basis of the SOAF, Mr Carter’s oral and affidavit evidence and the documents tendered, that the guilty plea entered by Mr Carter was one properly made and appropriately founded on the agreed facts as supporting the offence charged. I am, therefore, satisfied that it is appropriate to convict Mr Carter of the offence against s 125(1) of the EP&A Act with which he has been charged.

22. Second, critical to this sentencing process, it is accepted by the Prosecutor that, for the purposes of s 22 of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act), Mr Carter's plea of guilty was entered at the earliest possible opportunity. The consequences of this, for the sentencing process, are later expressly dealt with.

The sentencing framework

The legislative provisions

24. A number of provisions of the Sentencing Procedure Act are relevant.

25. The first relevant provision in the Sentencing Procedure Act is s 3A Purposes of Sentencing. This provision is in the following terms:

3A   Purposes of sentencing

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.

26. The second provision that is relevant is s 10, a provision which Mr Pagin, Mr Carter’s solicitor, has submitted should be availed of by me to deal with Mr Carter. This provision is in the following terms:

10   Dismissal of charges and conditional discharge of offender

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

(a)   an order directing that the relevant charge be dismissed,

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

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

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

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

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

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

(2B)   ...

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

(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.

(4)   ...

(5)   ...

27. The third provision is s 21A Aggravating, Mitigating and Other Factors in Sentencing. It is not necessary, at this point, to set out the totality of this provision, but it will be necessary to deal with the relevant elements of it in my subsequent sentencing analysis.

28. The final provision of the Sentencing Procedure Act that is relevant is s 22, a provision that requires me to take into account Mr Carter’s guilty plea. This provision is in the following terms:

22   Guilty plea to be taken into account

(1)   In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account:

(a)   the fact that the offender has pleaded guilty, and

(b)   when the offender pleaded guilty or indicated an intention to plead guilty, and

(c)   the circumstances in which the offender indicated an intention to plead guilty,

(d)   and may accordingly impose a lesser penalty than it would otherwise have imposed.

(1A)   A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.

(2)   When passing sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, and make a record of, its reasons for not doing so.

(3)   Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions.

(4)   The failure of a court to comply with this section does not invalidate any sentence imposed by the court.

The maximum penalty

29. The maximum penalty applicable to the conduct for which Mr Carter has been charged, as at the time of its occurrence, was $500,000. The maximum penalty reflects a public expression by the Parliament of the seriousness of the offence charged (Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 (Camilleri's Stock Feeds)).

30. The penalties and penalty structure for offences against the EP&A Act were amended in 2015. The changed penalties and penalty structure commenced on 31 July 2015, prior to the offending conduct giving rise to the offence with which Mr Carter has been charged. These 2015 amendments had the effect of reducing the maximum penalty applicable to offences such as that with which Mr Carter has been charged from $1,100,000 to $500,000.

31. However this change does not mean that the approach to offending conduct such as is here involved is automatically to be subject to imposition of lower penalties than those which had applied in the past for such offences (Willoughby City Council v Rahmani [2017] NSWLEC 166 at [13] to [24]). Sentencing for such offences remains to be considered having regard to such guidance as may be obtained from past and from recent sentencing patterns for similar offending conduct.

Aggravating factors

Introduction

32. There are a number of potentially aggravating factors requiring assessment in these proceedings. The Sentencing Procedure Act, in s 21A(2), as earlier noted, requires me to consider whether there are any aggravating factors there set out requiring to be taken into consideration. In addition, if I am satisfied that Mr Carter acted recklessly in authorising the lopping/topping of the trees, this would also be an aggravating factor.

Harm to the environment

33. The potentially relevant aggravating factor (contained in s 21A(2)(g)) pressed by the Prosecutor requires my consideration of whether the harm to the environment caused by Mr Carter's unlawful activities was substantial or not.

34. The Prosecutor submitted, in his written outline of submissions, that I should conclude that the harm to the environment was substantial and thus a factor of aggravation.

35. The question of objective seriousness is engaged in these proceedings, not only because the Prosecutor submits that I should find that the harm was substantial and that, as a consequence, a factor of aggravation is brought into play in the sentencing assessment, but because, to the complete converse of this submission, Mr Pagin has submitted that it is appropriate for me to consider the exercise of the discretion given by s 10 of the Sentencing Procedure Act and not impose any penalty on Mr Carter.

36. There is no doubt, in these circumstances, that there has been actual environmental harm. I therefore move to consider the factors that assist in determining the seriousness of this harm. In this context, the seriousness of the harm is to be distinguished from whereabouts, in a range of offending conduct, the offence might be characterised as falling for sentencing purposes. This separate exercise is undertaken later in this decision.

37. The concept of harm in the context of environmental offences is broad (Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299; [2006] NSWLEC 419). It is in this context that I turn to the matter requiring considering as to whether or not the harm was sufficient to constitute a factor of aggravation.

38. The Prosecutor’s written submissions set out, at (14) to (31), a list of the trees that had been lopped/topped and thus founded the charge. This element of the submissions summarised the extent of the impact on each tree and that tree’s prognosis. At (32), the Prosecutor wrote:

32   As at March 2018 the trees which did not die were experiencing regrowth from dormant epicormic buds adjacent to lopping points. However the condition of these trees was in summary 'poor' due to the structural defects created by the lopping cuts.

39. The Prosecutor then proposed two further bases upon which it was proposed I might find that the harm was substantial. The first (at (33) of the submissions) arose from the agreed matters set out earlier at (14) concerning impacts arising as a consequence of the Standard not having been observed in the lopping/topping of the trees.

40. The final matter pressed by the Prosecutor was the submission that:

34   Harm also occurred because the cutting down and lopping of the trees without the necessary development consent or permit undermines the statutory planning process with respect to tree and vegetation management and removal.

41. Mr Pagin submitted (Transcript, 14 May 2018, page 42, lines 11 to 18):

When looking at the environmental harm, I certainly wouldn't be suggesting that it's substantial. Rather, there were 13 trees and none were threatened species or were there any ecological communities that were moved, and if one looks to the affidavit of Mr Caster, you can see from the photos that, really, a lot of vegetation there has regenerated significantly, certainly from the first report. This isn't a case where trees have been entirely ripped out. Quite a number actually remain in place and have regrown to at least some extent.

42. As was observed by Preston CJ in Pittwater Council v Scahill (2009) 165 LGERA 289; [2009] NSWLEC 12 (Scahill), at [56], the consequence of unlawful removal of trees is the removal of the appropriate evaluative process made available by protective regimes - here, the process set by the LEP.

56   The defendant’s failure to apply for and to obtain development consent prior to cutting down the trees undermined this legislative objective. The process of making an application would have enabled a careful evaluation of the trees; their value, including their ecological and amenity value in the landscape; their health; and any potential risk posed by them to life or property.

43. In this case, it seems to me that there are both quantitative and qualitative elements requiring consideration.

44. I turn to these aspects. To start, it is to be observed that the number of trees (as earlier noted) significantly damaged as a result of Mr Carter's offending conduct were 13. Many of the trees were of substantial trunk size and height, with potential for further significant, healthy growth. Three are now dead.

45. The photos of the stumps show that the extent of the removal of the cut portion of the trees was significant. Mr Castor’s evidence earlier discussed makes it clear that the damage to these trees was substantial - damage from which they will not recover.

46. Indeed, as Mr Carter's solicitor acknowledged in (1) of his written submissions:

Three of the 13 trees died. The 10 remaining trees have since experienced epicormic growth have been rated have between fair to good vigour (health). However, the condition (structure) of the trees is considered poor. Given the structural defect created by the lopping cuts (quoting from the report attached to the second affidavit of Mr Castor at page 5).

47. However, Mr Castor's report went on, in the same paragraph, to say:

Tree 14 has already had a failure of one of the emerging suckers. More of this type of branch failure is expected in the near future given the weak attachment of the regrowth.

48. Mr Castor went on to explain, in this context, why lopping/topping of trees was an unacceptable practice as set out in the Standard.

49. The size of the trees, before their lopping/topping, makes it clear that they contributed significantly to the elements of the urban forest located on the property. The extent of the removal of this vegetation and what is likely to be, at best, a modest prognosis for the future re-establishment of this vegetation as can be seen from Mr Castor's evidence, leads me to conclude that the impact on this vegetation, as a whole, should be regarded as being of, at least, medium seriousness.

50. Although each case must be considered on the facts and circumstances engaged for consideration, a useful starting point can be found in the summation by Preston CJ in Scahill, at [68], where his Honour wrote:

68 Having regard to the above matters, I find the commission of the offence caused actual environmental harm of medium seriousness. Such harm can be considered substantial and an aggravating factor to be taken into account in determining an appropriate sentence: see s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999.

51. As a consequence, I am satisfied that the approach taken by Preston CJ in Scahill, at [68], is appropriate to be adopted by me in these proceedings to the same conclusion enunciated by his Honour - the harm occasioned by Mr Carter’s offending conduct is substantial and to be taken as a factor of aggravation.

Financial gain

52. The Sentencing Procedure Act provision s 21A(2)(o) requires consideration of whether or not the offence was committed for financial gain. The Prosecutor wrote (Prosecutor’s written submissions, page 16 at (53) - footnote omitted):

The prosecutor does not submit that the offence was one directly committed for financial gain (an aggravating factor under s 21A(2)(o) of the CSPA). However, the evidence of the defendant discloses that there was an element of potential indirect financial benefit to the defendant by instructing the unknown tree-lopper to do the work on the date of the offence.

53. In Mr Carter’s affidavit, at (8), he deposed as to a conversation with the unknown tree-lopper. In part, that conversation was in the following terms:

Me:    So how much to do the work?

Tree Lopper:    $3,350.

Me:    Okay. I’m not ready to go ahead just yet because I’m getting ready to leave with my family on our Christmas holiday. Perhaps in about 6 months’ time or so. Send me a quote when you can.

Tree lopper:   What do you mean 6 months?! This needs to be done now! I can only do it for you at this price if you have it done immediately. I have a whole crew ready to go.

54. I reject any implication proposed by the Prosecutor’s submission that s 21A(2)(o) of the Sentencing Procedure Act is, in some tangential fashion, engaged by Mr Carter’s accepting the price quoted by the unknown tree‑lopper because that price was on offer only if the work was carried out that day. Any financial benefit to be inferred came from the timing of the activity and not from the activity itself.

Recklessness

55. The Prosecutor submitted (Prosecutor’s written submissions, pages 14 and 15 at (45) to (47)) that Mr Carter’s conduct was reckless or, at least, negligent. This element of the Prosecutor’s submissions read (footnotes omitted):

45   The tree cutting/lopping works were carried out by an unknown tree-lopper on the instructions of the defendant. The prosecutor has accepted that the defendant had not planned for any tree lopping to occur on the date of the offence, and in summary that the unknown tree-lopper who came to the defendant's residence unannounced insisted that the work be carried out on the date of the offence, which the defendant reluctantly agreed to.

46   Notwithstanding, the prosecutor submits that the defendant was reckless, or at the very least negligent with respect to the manner in which he engaged the unknown tree-lopper to cut down and lop the trees.

47   This may be concluded for the following reasons:

(a)   the defendant was, at the very least, aware of the fact that tree removal works may require permission from the Council;

(b)   the defendant did not make any enquiries with the Council;

(c)   enquiries with the Council would have revealed that the cutting/lopping of the trees required approval from the Council;

(d)   the defendant did not ask the unknown tree-lopper for any documentation which might substantiate the claim that the cutting/lopping works did not require approval;

(e)   bare reliance upon representations from the unknown tree-lopper that the trees were 'weeds' which could be removed without Council approval, without any enquiries with the Council or other checks, was entirely unreasonable in the circumstances.

56. If I am satisfied beyond reasonable doubt that Mr Carter was reckless in agreeing to the lopping/topping of the trees, this may be taken into account as an aggravating factor (R vOlbrich199 CLR 270; [1999] HCA 54 at [27]).

57. In Chief Executive, Office of Environment and Heritage v Rummery [2012] NSWLEC 271 (Rummery), Pepper J wrote (a position not disturbed on appeal):

126.   An offender's conduct will be classified as reckless where he or she is put on notice, in the sense that he or she believes or suspects, that the clearing of native vegetation may be unlawful but nevertheless proceeds to undertake the clearing without making further enquiries (Director-General, Department of Environment, Climate Change and Water v Linklater [2011] NSWLEC 30 at [50] and Director-General, Department of the Environment and Climate Change v Olmwood (No 2) [2010] NSWLEC 100 at [50]).

58. I now turn to the question of whether or not I should conclude, beyond reasonable doubt, that Mr Carter was reckless.

59. First, during the course of his cross-examination by the Prosecutor, Mr Carter agreed that he had had the intention of removing the trees for a period of about six months prior to his authorising the unknown tree-lopper to take the action leading to this prosecution. Indeed, Mr Carter deposed to this intention in his affidavit at (8). The transcript records the following (Transcript, 14 May 2018, page 17, line 41 to page 18, line 2):

Q. If we turn now to the date of the offence, the reason why we're here, it's correct, isn't it, that you had intended to cut down, it's either 13 or 15 but let's just say 13 trees for some time on your property, that's right, isn't it?

A. Correct.

Q. Would it be correct to say that you had an intention from about six months prior to the offence to cut down trees, the 13 trees?

A. Yes.

Q. I'll state that again, from about six months prior to the offence you had an intention to cut down or lop the 13 trees?

A. Yes.

60. The Prosecutor's closing submissions on this point were in the following terms (Transcript, 14 May 2018, page 36, line 46 to page 38, line 8):

In that respect, turning, there is certainly the evidence in the agreed facts which I've set out at para 47 that the defendant was, at the very least, aware that the tree removal works may require approval from the council. It's agreed that the defendant did not make any inquiries with the council, that inquiries would have revealed that cutting of the trees required approval, that the defendant did not ask the tree lopper for any documentation which might substantiate the claim that lopping and cutting works did not require approval and then finally, this is in the written submissions, it's my submission that bare reliance upon representations by the unknown tree-lopper that the trees were weeds which could be removed without council approval and without any inquiries with the council or other checks was entirely unreasonable in the circumstances.

I then need to take the Court to the evidence of the defendant in cross examination. It was agreed that the defendant had agreed to cut down the trees for some time, that time period being six months. It's then agreed that an unknown tree-lopper came to the door, it was further acknowledged in evidence of the defendant that the defendant was aware that the tree lopper had come to the door or unknown tree-loppers had come to the door on previous occasions asking to cut down trees.

It was agreed that the tree lopper asked him if he could cut down trees and the defendant said, yes. The tree lopper told the defendant that he was a qualified tree lopper, but it was agreed that the defendant did not ask him if he had any qualifications. He didn't ask him to provide any documentary proof of his qualifications and the only thing that was provided was a business card. The defendant didn't ask him whether he was an arborist or not, the defendant asked the unknown tree-lopper whether permission was required from the council. The defendant agreed that he had made that inquiry and that is also in the agreed facts.

From there, the defendant's evidence was, in response to the question, "So, you must have appreciated that the removal and cutting and lopping of the trees may have been unlawful?" to which the defendant replied, "That's a fair assumption. And in response to the question, "You must have been aware in a general sense that approval from the council may have been required?" And he said, "Yes.", on my reckoning having regard to my notes.

The defendant further agreed in cross examination that he asked for no evidence or no documentary proof from the tree lopper to prove the assertion that no council approval was required. It's agreed in cross examination and in the agreed statement of facts that there was no inquiries made with the council and that the defendant made no other inquiries to verify the unknown tree-lopper's claim that no approval was required. Further, the defendant made no inquiries or checks in relation to substantiate whether or not a tree or trees were dying or not and then in fairness to the defendant, whilst the critical, in my respectful submission, the overall conduct is of relevance but the critical answers were as I outlined before, which were, just to summarise, "So, you must have appreciated that removal and cutting and lopping of the trees may have been unlawful?" The answer to that was, "A fair assumption." "And you must have been aware in a general sense that approval from the council may have been required?" "Yes."

But then, the final question that I asked with respect to this issue was whether or not the defendant must have known that there was a substantial risk that directing the tree lopper to cut down the trees was against the law and in fairness to the defendant, he answered, "No," he believed what was told to me. Then I put it to the defendant, that was wholly unreasonable in the circumstances and to which he agreed. Ultimately, it is the prosecutor's submission that it is open on the evidence for the Court to find that the more serious state of mind of recklessness as articulated by the Court of Appeal in the Turnbull decision.

61. The description by the Prosecutor above concerning the cross-examination of Mr Carter, in the fourth to sixth paragraphs set out above, does not precisely reflect that which is recorded in the transcript (although it is to similar general effect). It is appropriate to reproduce the precise terms of this element of the transcript (Transcript, 14 May 2018, page 18, line 28 to page 19, line 13):

Q. It's correct, isn't it, that you asked the unknown tree-lopper whether permission was required from the council to cut down the trees?

A. Yes, sir.

Q. In asking that question, you must have appreciated that removing the trees may have been unlawful?

A. That would be a fair, sir, yes.

Q. Because you wouldn't ask, it must be correct that if you asked whether permission was required from the council, you have, I put it to you, an understanding in a general sense that approval may have been required?

A. Correct.

Q. Otherwise why else would you have asked?

A. Yes.

Q. It's your evidence, in summary, that the tree lopper said that no approval was required from the council, is that correct?

A. Correct.

Q. You didn't ask the tree lopper, this unknown tree-lopper to provide any documentation to verify that there was no need for any approval from the council, did you?

A. Correct.

Q. It's also correct, isn't it, that you made no inquiries with the council about whether or not consent was required or not?

A. Correct.

Q. You didn't do anything else to verify whether consent was required, did you?

A. Correct.

Q. For example, you didn't do any internet searches yourself to verify that the lopper was telling the truth?

A. No.

62. The written submission made by Mr Pagin on this point was:

17.   There was no premeditation on the part of the defendant who had not planned for any of the Trees to be lopped prior to the date of the offence. It is the defendant’s contention that the defendant was not reckless with respect to the manner in which he engaged the tree lopper. The tree lopper had made himself out to be qualified and knowledgeable with regards to local Council regulations. In such circumstances, it was not unreasonable for the defendant to have relied upon the representations made by the tree lopper. Further, there was no measured or malicious intent behind the defendant’s actions to commit the offence.

63. During the course of his oral submissions, Mr Pagin said (Transcript, 14 May 2018, page 43, lines 23 to 32):

It certainly remains the defendant's contention that the defendant was not reckless in the manner that he went about engaging the tree lopper. However, with the evidence as it is, I'm not in a position to make a submission that the defendant wasn't indifferent or, perhaps, negligent. The tree lopper certainly made himself out to be qualified and knowledgeable with regard to the local council regulations, and essentially it's still my submission that it could be considered not unreasonable for the defendant to have relied upon representations. Certainly there was no measured or malicious intent behind the defendant's actions to commit the offence.

64. Although the Prosecutor questioned Mr Carter about council issues potentially arising from his business involvement in the building industry (Transcript, 14 May 2018, page 16, line 37 to page 17, line 8) nothing in these questions and answers adds anything to my assessment on this point.

65. The first sentence in the written submissions above on Mr Carter’s behalf is contrary to the evidence - as was acknowledged by Mr Carter in (8) of his affidavit, he had been contemplating having them “trimmed or removed” for about six months.

66. I am satisfied from the material set out above, from page 18 of the transcript, that the combination of the lengthy period during which Mr Carter had been contemplating having the trees lopped/topped, coupled with the second and third questions and answers in that extract, means that he can properly be regarded as being more than merely negligent - he should be regarded as having behaved recklessly in authorising the unknown tree-lopper to go ahead forthwith. This finding is consistent, by analogy, with the approach seen in the earlier passage set out from Rummery. This recklessness constitutes a second factor of aggravation.

Mitigating subjective factors

Introduction

67. The Sentencing Procedure Act requires me, by s 21A(3), to consider whether there are any relevant, potentially mitigating factors requiring to be taken into consideration. A range of matters may require consideration for this assessment. I turn to deal with those that are potentially engaged.

Prior convictions (s 21A(3)(e))

68. Mr Carter has no prior convictions for environmental offences and this is a factor weighing in his favour.

Mr Carter's character (s 21A(3)(f))

69. Four persons who have known Mr Carter for many years (between 15 and 40 years) affirmed affidavits providing testimonials on behalf of Mr Carter. Each of those providing this evidence had had Mr Carter’s offending conduct made known to them, as was acknowledged, expressly, in each affidavit.

70. The tenor of these testimonials was that Mr Carter’s offending conduct was entirely out of character and that Mr Carter was otherwise upright and well‑respected in both a business and personal sense.

71. These testimonials are to be taken into account in my sentencing consideration. As a consequence, I am prepared to accept that Mr Carter is a person of good character.

Likelihood of reoffending (s 21A(3)(g))

72. Although I consider it is unlikely that Mr Carter will reoffend, the necessity for a degree of specific deterrence is later discussed.

Contrition and remorse (s 21A(3)(i))

73. In his affidavit evidence, Mr Carter has expressed his remorse for his unlawful conduct. The Prosecutor does not question that this is reflective of Mr Carter's genuine position.

74. In Chief Executive, Office of Environment and Heritage v Ausgrid (2013) 199 LGERA 1; [2013] NSWLEC 51, Pepper J summarised, at [80], the four forms of actions that would demonstrate genuine contrition and remorse (derived from Preston CJ’s decision in Environment Protection Authority v Waste Recycling and Processing Corp (at [204] to [214]). The first of those actions - adapted as here relevant - is applicable in these circumstances. The matters which require to be considered are those demonstrating Mr Carter’s steps to enhance his self-awareness of relevant issues and the effectiveness of his actions in rectifying the harm caused by the commission of the offence.

75. In this regard, Mr Carter has undertaken the activities set out below in his affidavit:

15   On or about 7 April 2018 I attended a one-day bush regeneration course called “Introduction to Bushcare Workshop”. I learnt about identification of plant types, such as what ones are weeds and how to identify plants by their leaf shape and flowers. Amongst many other things, I learnt that depending on the location of the plant species, certain plants can be regarded as weeds or pests in one area but not another. This course was very informative and gave me a greater understanding and appreciation of the flora and fauna of our particular area.

16   I have also learnt about the specific fauna and flora that is desirable in our area, being the area surrounding Buffalo Creek, with the assistance of our neighbour, Ms Heather Armstrong. It is my understanding that Ms Armstrong works closely with a group called the Hunters Hill Council Bush Regeneration Group. I now understand and appreciate the importance of having correct native plants in the garden, especially for the local native birds and lizards. Annexed and marked “A” is a copy of my ticket to this course and annexed and marked “B” is an email from Ms Sandra Payne confirming information about the course.

17   Since my attendance at the Bush Regeneration course, I have consulted with the Council to plant a number of native plants that assist bird habitats and provide a safe haven for fairy-wrens, red-browed finches, silvereyes and white-browed babblers. Creating such a corridor is vital as these bird species as they do not fly very far and need protection from bigger birds and other animals such as cats.

18   I now understand how important it is to have native species for our specific area rather than the hybrid native plants typically present. I have been working closely with a lady called “Bev” who manages “The Habitat Community Nursery” and Robbie Renu who runs the “Cornucopia Nursery” to ensure I only plant the correct native species in my garden. Annexed and marked “C” is the recommended list of native plants from the two nurseries and information about how to plant these native species to create the best habitat.

19   Over the course of two days, from the third to the fourth of May 2018, I and my wife planted a number of native plants on the Property. Annexed and marked “D” are a number of photographs showing the newly planted vegetation and annexed and marked “E” is a list of plants I bought and a copy of the invoice.

20   This has been a steep learning curve for me and I understand that this is a work in progress and doesn’t happen overnight, but I am excited and determined to do my part in creating and maintaining a healthy native habitat and protecting our environment.

76. These activities can be regarded (and I do so) as concrete factors demonstrating contrition and remorse in a practical fashion.

Entry of the guilty plea (s 21A(3)(k))

77. The Prosecutor accepts that Mr Carter entered a plea of guilty at the earliest appropriate opportunity and that, as a consequence, this plea has had significant utilitarian value entitling Mr Carter to the maximum discount permissible of 25% of the penalty that would otherwise be appropriate to be imposed (R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 383).

Cooperation with the Prosecutor (s 21A(3)(m))

78. The Prosecutor accepts that Mr Carter has cooperated, fully and appropriately, with the Prosecutor. This cooperation has been reflected in Mr Carter’s giving an electronically recorded interview and making of admissions together with the settlement of a SOAF.

Deterrence

Introduction

79. I have earlier set out the terms of s 3A Purposes of Sentencing of the Sentencing Procedure Act. It provides, in s 3A(b), that one of the purposes to be achieved by sentencing an offender is “to prevent crime by deterring the offender and other persons from committing similar offences”. I therefore turn to consider the matters of specific deterrence for Mr Carter and that of broader, general deterrence.

Specific deterrence

80. Mr Carter now acknowledges that he should not have accepted, unquestioningly, the assurance of the unknown tree-lopping contractor that no permits were required before the trees could be lopped/topped.

81. Mr Carter should have independently satisfied himself by making direct enquiries that that which the unknown tree-lopping contractor had asserted was founded in fact.

82. Mr Carter has run his roofing contractor enterprise for very many years. He is aware that there are circumstances where the requirement for council consent arises (Transcript, 14 May 2018, page 17, lines 15 to 18). He had contemplated tree-cutting for a period of some months prior to ordering it to occur on 9 December 2015.

83. He ought to have been aware of the necessity to verify that permits were not necessary rather than merely relying upon the assertion of a contractor who was soliciting (vigorously, as was noted in the SOAF) for vegetation removal business.

84. It is, therefore, necessary to reinforce Mr Carter's understanding of this requirement that there be a modest element of specific deterrence in the sentence to be imposed.

General deterrence

85. It is also necessary to send a broader message of the importance of upholding the integrity of the planning system, generally, and of the elements protecting the urban forest (Mosman Municipal Council v Menai Excavations Pty Limited (2002) 122 LGERA 89; [2002] NSWLEC 132 at [35]). Such reinforcement of the necessity to obtain necessary permits is also to be directed to the broader public who might contemplate engaging tree-lopping businesses to lop or top trees in urban areas.

86. In Lake Macquarie City Council v Gordon [2017] NSWLEC 122, I noted, at [195], that the above general sentiment was repeated in the decision of Preston CJ in Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242, at [104], where his Honour refers to the need for the upholding of the integrity of the system of planning and development control.

87. This position also applies in these circumstances. As a consequence, general deterrence is a factor to be taken into account in this sentencing process.

The sentencing process

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

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

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

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

91. Consistent with this, it is necessary to categorise the objective seriousness of the behaviour constituting the offence, in these proceedings, as falling somewhere within a range between the “least bad case” and the “worst category” of such conduct.

92. The Prosecutor submitted that Mr Carter’s offending conduct should be regarded as falling “in the lower end of the mid-range” (Transcript, 14 May 2018, page 38, lines 41 and 42).

93. On the other hand, Mr Pagin submitted (Transcript, 14 May 2018, page 42, lines 10 and 11):

In terms of the objective harmfulness of the offence, my submission is certainly that it's towards the lower end of the range in that regard.

94. I have earlier noted that s 21A(2)(g) of the Sentencing Procedure Act requires consideration of whether the harm occasioned by the cutting down of the 13 trees was substantial or not. I have explained why it should be regarded as substantial and thus a factor of aggravation. I have also explained why Mr Carter should be regarded as having behaved recklessly.

95. As a consequence having regard to all aspects of Mr Carter's offending conduct, his offending is to be regarded objectively within the broad range of consideration of such conduct, as being in the middle of the low range of seriousness.

Mr Carter's financial capacity

96. No evidence has been provided Mr Carter's financial circumstances so as to require me to take them into account in determining what would be an appropriate penalty to impose.

97. However, it is also appropriate to note that the Prosecutor has reached an agreement that will have Mr Carter pay the Prosecutor's costs in the amount of $30,000. This sum encompasses legal costs, as well as investigation costs and expenses. Mr Carter has agreed to pay this sum within 28 days of the date of my orders.

98. The extent to which a convicted person will be liable for the Prosecutor's costs is a matter to be taken into account when determining the appropriate penalty otherwise to be imposed (EPA v Barnes [2006] NSWCCA 246).

The discretion in s 10 of the Sentencing Procedure Act

99. I have earlier noted that Mr Pagin submitted that Mr Carter be given the benefit of s 10 of the Sentencing Procedure Act - a provision earlier set out at [25].

100. However having regard to all the facts and circumstances of his conduct as earlier explained, I have concluded that:

1. The extent of the tree-lopping/topping has resulted in substantial harm to the environment, thus constituting a factor of aggravation for the purposes of s 21A(2)(g) of the Sentencing Procedure Act; and

2. Mr Carter is to be regarded as acting recklessly - with this constituting a second factor of aggravation

101. The Prosecutor submitted that it was not an occasion where s 10 of the Sentencing Procedure Act was appropriate to be considered, saying (Transcript, 14 May 2018, page 40, lines 20 to 22):

So my submission in conclusion is that ultimately the offence, for the reasons I have given, falls within the lower end of the mid-range and that it is absolutely an inappropriate case for a s 10.

102. In light of the two aggravating factors and the resulting conclusion as to characterisation of the offending conduct - although I have not adopted the Prosecutor’s characterisation for placing Mr Carter’s offending conduct in the range, his conduct is certainly not inconsequential or trivial and there are no extenuating circumstances. As a consequence, I do not consider that Mr Carter’s subjective circumstances balance the elements of his offending conduct in any fashion to warrant not convicting Mr Carter or imposing the appropriate financial penalty on him.

102. I reject the submission made on his behalf that he should be given the advantage of the application of s 10 of the Sentencing Procedure Act.

The agreed remedial orders

104. Discussions between the Prosecutor and Mr Carter's legal representative resulted in proposed consent orders (to be made pursuant to s 126(2A) of the EP&A Act) to address the necessity for an ongoing regime of:

1. arboricultural inspection of, and reporting on, the trees for a period of years into the future;

2. the furnishing to the Prosecutor of a copy of the arborist’s report after each inspection;

3. implementation of any recommendations of the arborist arising out of each inspection; and

4. the timeframes within which these inspections were to be carried out.

105. Although these proposed orders had been settled by the legal representatives, I indicated my concern as to deficiencies in the orders which had the potential to render them of limited efficacy. I suggested a number of changes that the legal representatives might contemplate and provided them with a period of time within which to discuss and comment on the proposed changes.

106. I was subsequently provided with revised proposed Consent Orders addressing the matters of concern which I had raised. Those orders, in their revised terms, have been incorporated in the orders made at the conclusion of this decision.

107. However, it is to be observed that Pt 8.3 of the POEO Act provides for additional orders - orders which are to be in addition to, and not in substitution for, the penalty otherwise appropriate to be imposed.

Evenhandedness in sentencing

108. Although each case needs to have its penalty assessed on its own particular facts and circumstances, nonetheless, the general concept of evenhandedness in sentencing requires consideration to ensure that the sentence which is imposed is not completely disproportionate to the sentences imposed in other proceedings where the offending conduct might, in some fashion, be regarded as generally comparable.

109. Both the Prosecutor and Mr Pagin drew my attention to cases which, each said, provided some assistance in this regard.

110. First, at (35) to (38) of Mr Pagin's written submissions, he provided references to four prosecutions for vegetation removal where the penalties had been imposed under the old maximum penalty regime. I have earlier explained why the reduction in the maximum statutory penalty in 2015 does not mean that there should be a reduction in the penalties imposed for such offences. The cases to which Mr Pagan draws my attention were ones where the sentences were imposed between 2002 and 2009. As far as I am able to ascertain from each of those decisions, none of them involved the duality of factors of aggravation which I have found to exist in these circumstances. Although the maximum penalties imposed in those matters ranged from a s 10(1)(a) finding of the offence being proved, but not proceeding to conviction through to a maximum imposed fine of $20,000, they are of no functional assistance to me in these proceedings because of the absence of that duality of aggravation factors.

111. On the other hand, the Prosecutor relied on six more contemporaneous cases (three of which are decisions of my own). I am satisfied that five of the six decisions relied upon by the Prosecutor provide some significant and appropriate guidance and penalty. The sixth of them, Scahill, has earlier been of utility in my decision-making process at the points where it has earlier been discussed. However, given the matters engaged in those proceedings concerning storm damage to the trees which had been removed (although the conduct was reckless in an aggravation sense), the factual circumstances do not provide significant assistance in this case. Although the decisions in:

• Burwood Council v Abdul-Rahman (No 2) [2017] NSWLEC 177;

• Burwood Council v Jarvest Pty Ltd [2011] NSWLEC 109 (Jarvest);

• Hunters Hill Council v Gary Johnston [2013] NSWLEC 89;

• Ku-ring-gai Council v Edgar [2017] NSWLEC 49 (Edgar); and

• Willoughby City Council v Rahmani [2017] NSWLEC 166

are generally supportive of the sentence which I have determined should be imposed (Edgar being significantly constrained in its ultimate outcome utility because of the particular engagement of s 6 of the Fines Act 1996 - a matter not engaged by these proceedings), the matter which provides greatest assistance, after a reading of these various decisions, is that of Sheahan J in Jarvest.

112. Although there was actual knowledge of the existence of a Tree Preservation Order by the defendant in those proceedings, a matter giving rise to a finding of aggravation for that reason, a similar finding of recklessness has been made by me concerning Mr Carter's conduct. The two aggravating factors in Jarvest are sufficiently comparable that I am satisfied that a similar penalty is here warranted as a numerical amount, despite the fact that, in that instance, the entity being prosecuted was a company. The circumstances in Mr Carter's case caused me to take guidance from this decision for the purposes of the instinctive synthesis process to be followed in determining the appropriate starting penalty for Mr Carter.

Conclusion

113. I am satisfied that Mr Carter's conduct provides a proper basis to find that he has committed the offence to which he has entered a plea of guilty.

114. Adopting an instinctive synthesis approach, doing so by considering all relevant objective and subjective circumstances, the purposes of sentencing, and the harm resulting from the offence, I find the appropriate starting penalty is $60,000. This amount is to be reduced by 25%for the utilitarian value of Mr Carter’s early plea of guilty. This results in a fine of $45,000 to be imposed on Mr Carter.

Orders

115. It therefore follows that the orders of the Court are:

1. Michael John Carter (the Defendant), is convicted of an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 in that, on 9 December 2015, by his servants, agents and/or contractors, he cut down and lopped trees on land, being trees which were prescribed by a development control plan made by Hunters Hill Council (the Council) and which were prohibited from being cut down and lopped under clause 5.9(3) of the Hunters Hill Local Environmental Plan 2012 without the authority conferred by:

1. a development consent; or

2. a permit granted by the Council,

where no such development consent or permit was granted beforehand;

2. The Defendant is fined the sum of $45,000; and

3. The Defendant is ordered to pay the agreed sum of $30,000, within 28 days, direct to the Prosecutor, for the Prosecutor’s costs and investigation costs and expenses.

116. The further orders of the Court by consent are:

(4) Pursuant to s 126(2A) of the Environmental Planning and Assessment Act 1979 and s 245 of the Protection of the Environment Operations Act 1997, by 29 June 2018 (28 days from the date of these orders), the Defendant is to

1. retain a suitably qualified arborist (having a minimum qualification of AQF Level 5) to:

1. inspect the trees identified and numbered 1, 2, 3, 6, 8, 10, 11, 12, 13 and 14 in the report annexed to the affidavit of Peter Castor dated 5 April 2018 and filed in these proceedings; and

2. make written recommendations for the management of the said trees so as to ensure their ongoing health and structural integrity;

2. provide a copy of the arborist's recommendations to the Prosecutor within 10 days of its receipt; and

3. carry out, or cause to be carried out, the recommendations of the said arborist within 28 days of receipt of the report.

(5)   The requirements set out in Order (4)(a) are to be carried out and complied with by the Defendant on a further four occasions, with compliance by:

(a)   29 June 2019 (28 days from the date of these orders plus 1 year);

(b)   29 June 2020 (28 days from the date of these orders plus 2 years);

(c)   29 June 2021 (28 days from the date of these orders plus 3 years);

(d)   29 June 2022 (28 days from the date of these orders plus 4 years);

(6)   The requirements in Order (4)(b) and (c) are to be carried out within the periods specified in those orders after the relevant date in Order (5).

(7)   In the event that the Defendant disposes of his interest in Lot 4 DP 814261, known as 15 Pains Road Hunters Hill, Orders (4), (5) and (6) cease to have effect.

117. The exhibits and the unread affidavits are returned.

**********

Decision last updated: 01 June 2018