Hunters Hill Council v Liu

[2018] NSWLEC 108

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Hunters Hill Council v Liu [2018] NSWLEC 108
Hearing dates:	8 June 2018
Date of orders:	23 July 2018
Decision date:	23 July 2018
Jurisdiction:	Class 5
Before:	Moore J
Decision:	Orders at [95]
Catchwords:	PROSECUTION - cutting down of two trees without consent of council - consent of council required - two trees cut down were on neighbour’s property - no consent from neighbour to remove the trees - plea of guilty - agreed facts demonstrate plea appropriate - extent of environmental harm caused - environmental harm significant - held to be aggravating factor - whether causing trees to be removed without consent was deliberate - removal was deliberate - held to be aggravating factor - assessment of seriousness of the offending conduct - offending conduct to be characterised as being in the middle of the low range of seriousness PENALTIES - defendant to be convicted - whether need to provide for specific and general deterrence - need to provide for general deterrence - instinctive synthesis of objective facts of offending conduct and defendant’s subjective factors - indicative starting sentence of $64,000 fine for offence - 25% discount for early guilty plea - appropriate penalty fine of $48,000 REMEDIAL ORDERS - agreement between prosecutor and defendant for orders for replanting of two replacement trees on defendant’s property - no agreement on whether period of years to monitor replacement trees should be imposed to address any arboricultural problems arising with replacement trees - monitoring of replacement trees to be required but for shorter period than that proposed by the council - no agreement on whether public positive covenant should be required if ongoing arboricultural monitoring was ordered orders made by consent - public positive covenant not required as orders sufficient COSTS - defendant ordered to pay prosecutor’s costs and investigation costs and expenses the agreed sum of $35,000
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999, ss 3A, 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 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 Carter [2018] NSWLEC 84 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 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) Yueling Liu (Defendant)
Representation:	Counsel: Mr A Isaacs, barrister (Prosecutor) Ms N Hammond, barrister (Defendant)   Solicitors: HWL Ebsworth (Prosecutor) Hones Lawyers (Defendant)
File Number(s):	36190 of 2018
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

Agreed matters relevant to Ms Liu’s offending conduct

A more detailed outline of events

The expert evidence

Ms Liu’s evidence

Ms Liu's plea of guilty

The sentencing framework

The legislative provisions

The maximum penalty

Aggravating factors

Introduction

Harm to the environment

Characterisation of Ms Liu’s conduct

Mitigating subjective factors

Introduction

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

Ms Liu'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

Classifying offending conduct within a range

Ms Liu's financial capacity

The agreed remedial orders

Consistency in sentencing

The appropriate sentence

Orders

JUDGMENT

Introduction

1. By Summons filed on 2 February 2018, Hunters Hill Council (the Prosecutor) commenced proceedings to prosecute Ms Yueling Liu (Ms Liu) 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 Ms Liu has been charged is that she engaged a tree removal contractor to remove two Cheese Trees (Glochidion ferdinandi) – trees which were protected by the Hunters Hill Local Environmental Plan 2012 (the LEP), as it was at the time of Ms Liu’s offending conduct – without the consent of the Prosecutor, where consent for the purpose of cutting down of those trees was required to be given by the Prosecutor.

2. Ms Liu was, as at 3 February 2016 (the date of the removal of the trees), the sole owner of 24B Barons Crescent, Hunters Hill (the property). She remained the sole owner as at the date of the sentencing hearing. Buffalo Creek/Buffalo Creek Reserve is located to the north of Ms Liu's property.

3. The two Cheese Trees which Ms Liu caused to be removed were not located on her property but were located on 22 Barons Crescent, the property to the immediate west of her property.

The charge

4. The Summons commencing these proceedings set out the charge against Ms Liu pleading that:

… on or about 3 February 2016 at Hunters Hill in the State of New South Wales, she committed an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 ("the Act") in that she did the following thing which was forbidden to be done under the Act:

She did, by her servants, agents and/or contractors, cut down 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 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.

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 Ms Liu’s offending conduct. They were ss 125(1), 125B(2)(b)(i) and 126(2A). 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(2A) of the EP&A Act quoted above, both s 245 and s 250 of the POEO Act have the potential to be utilised to provide the foundation for the proposed remedial orders discussed later at [73] to [84]. The POEO Act provisions are, relevantly, in the following 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 Ms Liu’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 the 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 Ms Liu settled a Statement of Agreed Facts (the SOAF) which was supported by a bundle of agreed documents. The SOAF was tendered, becoming Exhibit A.

Agreed matters relevant to Ms Liu’s offending conduct

13. The relevant matters requiring to be considered can be derived from the SOAF and the agreed documents. 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 8 June 2018. The relevant agreed events were:

1. On 3 February 2016, Ms Liu engaged a tree removal contractor to remove the two Cheese Trees;

2. Each of the trees were located on 22 Barons Crescent, Hunters Hill;

3. The tree removal works did require the approval of the Prosecutor;

4. Ms Liu was present at the property whilst the two Cheese Trees were being cut down;

5. Each of the trees was alive at the time of its removal;

6. The contractor asserted to Ms Liu that no approvals were necessary for the tree works proposed to be undertaken; and

7. Neither of the trees was identified by the Prosecutor as an “urban environmental weed”, nor were they of a species listed as “noxious” for the Prosecutor's local government area under the Noxious Weeds Act 1993.

14. The SOAF relevantly sets out a conversation which took place on the property between Ms Liu and officers employed by the Council, being Ms Tracey Ivin, Ms Jacqui Vollmer and Mr Phil Sutton, during which Ms Liu stated three reasons for her removal of the two Cheese Trees. These are set out in more detail below.

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. An aerial photograph in Exhibit A showed that the two trees were located in close proximity to the boundary with Ms Liu’s neighbour's property, but were definitely on the neighbour’s property. Although the trees were cut down on 3 February 2016, Ms Liu’s had met with the contractor prior to that date and given instructions about the removal of the trees;

2. A little after 9.00 am on the morning of 3 February 2016, following receipt of a complaint, three employees of the Prosecutor attended at Ms Liu’s property. At the time of their arrival, they could hear chainsaws operating;

3. One of the Prosecutor’s employees spoke to one of the contractor’s team, requesting that the tree-cutting stop and this occurred;

4. The Prosecutor’s employees were able to observe that the two trees had been cut down, with there being freshly cut stumps near ground level for each of them. One of the trees was lying on the ground, whilst the trunk of the other tree had been cut up into sections – with branches and the sections of the trunk piled up in the vicinity of that tree’s stump. Photographs depicting this were in Exhibit A;

5. The Prosecutor’s employees had a conversation with Ms Liu, a conversation which occurred under caution. An account of the conversation is contained in a Statement of Agreed Facts;

6. During the course of the conversation, as recorded in the Statement of Agreed Facts, Ms Liu offered two explanations for the removal of the tree. First, at (26) of the SOAF, she is noted as said:

I wanted to remove the tree and branches because it was dropping leaves into my pool.

7. Later in the conversation, at (27) of the SOAF, Ms Liu is then noted as saying:

My friend has hurt her foot and the tree was sparking with electricity in storms and I wanted to remove some trees.

8. The SOAF also records, at (28), that shortly after the conversation dealt with above, Ms Liu attended the Council Chambers. She had with her a Tree and Vegetation Management Application form seeking approval to cut down trees. At (28), the Statement of Agreed Facts records that a conversation took place to the following effect:

MS LIU:    I came into Council but then I realised it was going to be too expensive.

COUNCIL:   You have to follow the correct procedure. You need to lodge the permit application with Council.

MRS LIU:    The tree was sparking electricity in storms.

COUNCIL:   The tree you cut down was in the backyard and nowhere near electricity.

MRS LIU:    I wanted it cut down because it was dropping leaves into my pool.

COUNCIL:   It is written into our DCP that we do not remove trees for dropping leaves and fruit, that is not Council's problem.

MRS LIU:    I don't understand.

COUNCIL:   A fine will help you understand.

9. Ms Liu then left the Council, taking the application form with her;

10. The SOAF also records that Ms Liu had previously lodged a Tree and Vegetation Management Application with the Prosecutor on 25 June 2014. That application had been approved by the Prosecutor. Ten trees were approved to be removed at that time. A copy of that application and its approval were contained amongst the papers in Exhibit A.

The expert evidence

16. The Prosecutor read an affidavit by Ms Vollmer, a Bushland Management Officer employed by the Prosecutor, concerning relevant events. This affidavit was read in these sentencing proceedings without objection. Ms Vollmer was not required for cross-examination.

Ms Liu’s evidence

17. Ms Liu affirmed an affidavit dated 14 May 2018. This affidavit was read in part, with the parts read becoming evidence in the proceedings. Ms Liu was not required for cross-examination. Appended to Ms Liu's affidavit and forming part of the evidence in these proceedings was a copy of a quotation that she had obtained from the contractor who removed the two Cheese Trees. It will be necessary to refer, later, to limited material in Ms Liu's affidavit.

Ms Liu's plea of guilty

18. On 16 March 2018, Ms Liu entered a plea of guilty to the offence charged. This plea was entered before me as the List Judge on that date. There are two matters to be observed concerning Ms Liu's guilty plea.

19. First, I am satisfied, on the basis of the SOAF and the agreed documents tendered with it, that the guilty plea entered by Ms Liu 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 Ms Liu of the offence against s 125(1) of the EP&A Act with which she has been charged.

20. 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), Ms Liu'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

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

22. 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.

23. The second 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.

24. The final provision of the Sentencing Procedure Act that is relevant is s 22, a provision that requires me to take into account Ms Liu’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

25. The maximum penalty applicable to the conduct for which Ms Liu 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)).

26. 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 Ms Liu has been charged. These 2015 amendments had the effect of reducing the maximum penalty applicable to offences such as that with which Ms Liu has been charged from $1,100,000 to $500,000.

27. 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

28. 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 Ms Liu acted recklessly in authorising the removal of the trees, this would also be an aggravating factor.

Harm to the environment

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

30. 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.

31. Ms Hammond, counsel for Ms Liu, made the following concession on page 3 of her written submissions:

It is accepted that environmental harm was caused as a result of the removal of the two Cheese Trees.

The Defendant agrees with the Prosecutor's submissions in relation to environmental harm and its analysis of the parties respective ecology experts at [19] to [27] of its submissions. Mr Fanning, the Defendants ecology expert, does not consider that there is any likelihood of impact on Buffalo Creek as a result of soil erosion or sedimentation: Fanning report at [11, C].

However, Mr Fanning does accept that that some harm has resulted due to loss of wildlife habitat, albeit extremely minor in the circumstances: Fanning report at [14].

The Defendant accepts that the trees were in good condition and had a long useful life expectancy, although their significance rating was moderate only: Bundle, Tab 11.

In the circumstances where there was no genuine arboricultural reason to support the removal of the trees, the Defendant accepts that the environmental harm caused is of some significance and thus a factor of aggravation: Willoughby City Council v Rahmani [2017] NSWLEC 166 at [31].

32. The two trees which Ms Liu ordered to be cut down were substantial specimens of their type. An assessment table concerning these trees was in evidence (Exhibit B, Tab 11). The trees were 12 and 15 metres in height (to the extent that this was able to be estimated from the remnants of the trees lying on the ground at the time of inspection by the Prosecutor’s employees). Both of the trees were assessed as having the following characteristics:

• five-metre canopy spread radius;

• a trunk diameter of 250 millimetres and 400 millimetres at the top of the cut stump;

• good vigour and condition;

• a long life expectancy of 40 years or more;

• a mature age class; and

• a moderate significance rating.

33. The table from which this information has been taken was also accompanied, in the evidence, by an explanation of the final element of the above descriptors. Characterisation of the trees in this fashion is not, in fact, consistent with the elements in the accompanying table explaining the classification process.

34. I have carefully considered the photographic material in evidence depicting the stumps of the trees and such material as remain from them that was able to be inspected by the council officers. I am satisfied that the above described inconsistency is to be resolved by concluding, contrary to the final element of the tabular assessment of the trees, that, consistent with the earlier elements, when applied to the explanatory material, the trees should be characterised as having a significance rating of 2 (High significance).

35. All of this reinforces the validity of the concession made on behalf of Ms Liu that the environmental harm should be regarded as substantial and thus a factor of aggravation.

36. 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). There is no doubt, in these circumstances, that there has been actual environmental harm. I am satisfied on the basis of the evidence that this concession was one properly made and that the harm was sufficient to constitute a factor of aggravation.

Characterisation of Ms Liu’s conduct

37. I have earlier set out the processes within the Prosecutor's planning controls that mandated the necessity for Ms Liu to seek the consent of the Prosecutor before removing any trees that were otherwise protected (as was the position with respect to the two trees removed as part of Ms Liu's offending conduct) prior to any such tree removal. In this assessment, I set aside, entirely, the fact that, in order to obtain the consent of the Prosecutor for the removal of these two trees, Ms Liu would also have had to have provided proof to the Prosecutor that the owner of the property upon which the two trees were located consented to their removal.

38. It was initially submitted on behalf of Ms Liu that, at worst, Ms Liu's conduct should be regarded as negligent rather than as either deliberate or reckless. The Prosecutor, on the other hand, submitted that I should conclude that her conduct resulted from an awareness of the necessity to obtain the Council's consent, coupled with a deliberate choice not to seek that consent. The Prosecutor also submitted that, if I were not minded to conclude that her conduct was deliberate, I should nonetheless conclude that she had acted recklessly in accepting the advice of the tree contractor that the Council's consent was not required. If I accepted either of the propositions advanced by the Prosecutor, the Prosecutor submitted that this constituted a factor of aggravation to be taken into account in the sentencing process.

39. During submissions, I drew Ms Hammond’s attention to my recent decision in Hunters Hill Council v Carter [2018] NSWLEC 88 (Carter) and, following a short adjournment, she made the following concession in relation to the Ms Liu’s state of mind (Transcript 8 June 2018, page 19 line 50 to page 20 line 5):

… having read closely what your Honour says about the level of -- the state of mind at least in that case and given the similarities, the reliance on a contractor, I'm prepared to revise my submission about negligence in line and accept that recklessness is probably a better way of describing the state of mind taking on board what your Honour has said and picking up on Pepper J's comments as well.

40. There are three elements which caused me to conclude that the first proposition advanced by the Prosecutor is established to my satisfaction beyond reasonable doubt. Such a finding must be made to that standard of proof before I can have regard to it as establishing a factor of aggravation.

41. The three matters that cause me so to be satisfied are:

1. The material set out in the SOAF from (24) to (26) that Ms Liu made contact with the Council prior to the cutting down of these two trees;

2. Second, in evidence is an application which Ms Liu had made to the Council in 2014 seeking the Council's consent to the removal of ten trees and the Council's granting of consent for this purpose (Exhibit B, Tab 14). These two facts, taken together, are sufficient to draw the conclusion that her action was deliberate whilst knowing that consent was required;

3. In addition, appended to Ms Liu's affidavit and forming part of the evidence in these proceedings (Transcript 8 June, page 5 lines 31 to 34) was a copy of a quotation that she had obtained from the contractor who, in the ultimate, removed the two trees and did not remove any other vegetation. This quotation evidences that, at least at the time of it being obtained, Ms Liu contemplated the removal of a substantially larger number of trees and other vegetation than that which was, in fact, removed by the contractor. It is appropriate to infer that, at least for the purposes of this quotation, Ms Liu identified all those vegetation elements that were the subject of the quotation. For the purposes of these proceedings, the only conclusion that I draw from this quotation arises from the fact that the quotation identifies, amongst the items listed for potential removal within the scope of the quotation, “gum tree”. This generic description fits, precisely, the generic description of the trees listed on Ms Liu's original application to the Council made in 2014. I am therefore satisfied that the inference that Ms Liu knew that trees with that descriptor required the consent of the Council prior to their removal is established. This reinforces (but is not necessary for the initial conclusion) that she chose to authorise the removal of the two trees subject to this charge in circumstances where she knew that the consent of the Council was required before that activity could be undertaken.

Mitigating subjective factors

Introduction

42. 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))

43. Ms Liu has no prior convictions for environmental offences and this is a factor weighing in her favour.

Ms Liu's character (s 21A(3)(f))

44. Two short statutory declarations were tendered and Ms Liu’s behalf. These statutory declarations were from people who had known her for 9 and 10 years, respectively. Each of the persons giving the statutory declarations attested to the fact that they had been made aware of the charge that she faced and that each of them considered that her conduct was entirely out of character.

45. Ms Liu is entitled to me concluding that she is otherwise a person of good character and that this is a factor to be taken into account in my sentencing process.

46. These testimonials are to be taken into account in my sentencing consideration. As a consequence, I accept that Ms Liu is a person of good character.

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

47. Although I consider it is unlikely that Ms Liu will reoffend, the necessity for a degree of specific deterrence is later discussed.

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

48. In her affidavit evidence, Ms Liu has expressed her remorse for her unlawful conduct. The Prosecutor does not question that this is reflective of Ms Liu's genuine position.

49. 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 Ms Liu’s steps to rectify the harm caused by the commission of the offence.

50. The fact that Ms Liu has agreed to plant two replacement trees of 100-litre container size (being trees of substantially advanced development) is a relevant element demonstrating her contrition (albeit one of a degree of modesty in its import, given that the trees which she caused to be removed were on her neighbour's property and the trees which are to be planted will be on her property and thus not being plantings in complete replacement of that which has been removed).

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

Entry of the guilty plea (ss 21A(3)(k) and 22)

52. The Prosecutor accepts that Ms Liu entered a plea of guilty at the earliest appropriate opportunity and that, as a consequence, this plea has had significant utilitarian value entitling Ms Liu 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))

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

Deterrence

Introduction

54. 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 Ms Liu and that of broader, general deterrence.

Specific deterrence

55. Ms Liu now acknowledges that she should not have accepted, unquestioningly, the assurance of the contractor that no permits were required before the trees could be removed.

56. Ms Liu knew from her past application for, and approval of, removal of ten trees that consent from the Prosecutor was required. She deliberately chose to have the trees cut down despite knowing that the Prosecutor’s consent was required.

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

General deterrence

58. 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.

59. 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.

60. 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

61. The appropriate process to be undertaken in sentencing Ms Liu 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 Ms Liu'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.

62. 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.

63. 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.

64. 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.

Classifying offending conduct within a range

65. I now turn to the task above of determining how I should classify Ms Liu’s offending having regard to all the relevant factors.

66. In this instance, the Prosecutor submitted that I should conclude that Ms Liu’s offending conduct should be characterised as being the middle of the range of seriousness. The Prosecutor said, in his written submissions:

As the prosecution indicated orally to the Court when asked about the attitude to objective seriousness it was described as moderate that is to say towards the midpoint of objective seriousness of offences of this kind. Prosecution submit that in light of the factual findings that are open to be made with respect to:

i   The circumstances of the offending conduct,

ii   The resultant environmental harm,

iii   The maximum penalty available,

iv   The evident control over the causes of the criminal conduct,

v   The inadequacy of the defendants reasons for committing the offence,

vi   The foreseeability of the risk of harm being high and

vii   Ultimately the findings that are open to the Court with respect to the defendant’s state of mind.

The Court would agree that the characterisation that this offence, whilst not the worst example of offence, or the least serious example, is one that is towards midpoint.

67. On the other hand, Ms Hammond submitted that the Defendant’s conduct should properly be characterised as the middle of the low range. She said, in her oral submissions on this point (Transcript 8 June 2018, page 20 lines 10 to 13):

… my submission would be that the conclusion reached in terms of the offending conduct in Carter as being characterised as being in the middle of the low range of seriousness I would submit should be applied in this case.

68. These remarks were supplementary to her written submissions on this point where she wrote:

Taking into account all the objective and subjective circumstances and the need for general deterrence, the Defendant considers that the offence falls within the higher end of low objective seriousness.

69. Having regard to all of the objective factors relating to Ms Liu’s offending conduct (including the fact that I have concluded that there are factors of aggravation requiring to be taken into account), I am satisfied that her offending conduct is to be characterised as being in the middle of the low range of seriousness. As this expression is not one of terminological exactitude, in circumstances where I consider that Ms Liu’s offending conduct is to be compared, principally, with the conduct of Mr Carter, for the reasons earlier described, it is appropriate that I indicate that, although using the same descriptor as I applied to Mr Carter, I consider that Ms Liu’s offending conduct is a little more serious than that of Mr Carter, albeit only marginally so.

Ms Liu's financial capacity

70. No submission has been made, nor any evidence tendered, suggesting that Ms Liu does not have the capacity to pay the penalty which will be imposed for her offending conduct. As a consequence, there is no need for me to consider whether the appropriate penalty should be moderated in any fashion pursuant to s 6 of the Fines Act 1996.

71. However, it is also appropriate to note that the Prosecutor has reached an agreement that will have Ms Liu pay the Prosecutor's costs in the amount of $35,000 within 28 days of the date of my orders. This sum encompasses legal costs, as well as investigation costs and expenses.

72. 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 remedial orders

73. 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.

74. The Prosecutor proposed orders (to be made pursuant to s 126(2A) of the EP&A Act) to address what the Prosecutor said was 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.

75. Although counsel for Ms Liu agreed with some elements of the proposed orders, other elements were in contention.

76. In Carter, the Prosecutor proposed that there be a regime to monitor the surviving trees in order to ensure the best chance of their survival. This involved annual inspections by an arborist who would make recommendations about what action, if any, needed to be taken with respect to the various surviving trees. Mr Carter was to be obliged to give effect to those recommendations. The lengthy period of time over which those obligations were to remain upon Mr Carter was as a consequence of the fact that the arboricultural prognosis for those trees was not good in light of the fact that such further growth as had occurred since the topping/lopping had taken place was epicormic (as was likely to be the case in the future). Such epicormic growth was, and remains, prone to failure.

77. In this instance, Ms Liu is to be required to plant two entirely new, advanced stock replacement trees. These replacement trees are to be planted on her property and under the supervision of an arborist. The risks of such trees not surviving and flourishing is significantly less than had been the position in Mr Carter’s circumstances. As a consequence, whilst I consider that a degree of arboricultural supervision, and the creation of an obligation for Ms Liu to adopt and implement any arboricultural recommendations, is desirable, it would be unnecessarily extravagant, in my assessment, for that requirement to be imposed for as many years as was the case with Mr Carter. As a consequence, I have decided that, after the initial planting of the replacement trees, the arboricultural supervisory regime to be imposed on Ms Liu should require assessment and implementation of any recommendations made by an arborist for a period of two years after the initial planting takes place.

78. The second element in Carter, concerning the arboricultural monitoring regime, was a proposal by the Prosecutor that that regime be underpinned by a public positive covenant in favour of the Prosecutor so that, if Mr Carter sold the property, that obligation would continue to fall on Mr Carter's successor-in-title. In the circumstances of that case, where Mr Carter and his wife were the joint owners of the property, I declined to impose such a requirement as I was satisfied it would not be possible to do so without the consent of Mr Carter's wife, she not being a party to the proceedings. As a consequence, in those proceedings, the specific requirement was that the supervisory regime lapses should the Carter's sell the property prior to the end of the expiry of the multiple-year supervisory regime.

79. In these proceedings, the Prosecutor similarly proposes that there should be a public positive covenant on the property to ensure that the arboricultural supervisory regime proposed should continue if Ms Liu disposes of the property.

80. In this instance, Ms Liu is the sole owner of the property so, as a consequence, there is no legal reason why such a public positive covenant could not be imposed. I am also satisfied that the imposition of a requirement to effect such a covenant would be within the range of orders rendered permissible by the scope of the application of Pt 8.3 of the POEO Act to prosecutions such as this one.

81. The fact that the replacement trees which Ms Liu is to be obliged to plant, coupled with the comparatively time-limited nature of the arboricultural supervisory regime, means that it would be a disproportionate additional cost penalty imposed on Ms Liu to require such a covenant. As a consequence, the appropriate provision is to incorporate, as with Mr Carter, a lapsing outcome for the ongoing requirements should Ms Liu sell the property.

82. However, it is appropriate to incorporate a requirement in the conditions that Ms Liu provide a copy of the arborist’s report to the Council after each future inspection and that there be a limited period of time within which Ms Liu is to implement any recommendations of the arborist, with the implementation of those recommendations to require certification from the arborist. Ms Liu is to be mandated to provide a copy of that certification to the Prosecutor.

83. Such a regime, although imposing ongoing obligations on Ms Liu, would not, in my assessment, be too onerous a response to her removal of these trees from her neighbour’s property.

84. I have settled the terms of the orders after considering the limited disagreement between the parties as to the obligations to be imposed and my determinations with respect to them.

Consistency in sentencing

85. Although each case needs to have its penalty assessed on its own particular facts and circumstances, nonetheless, the general concept of consistency 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.

86. Attached to the Prosecutor's written submissions was a table setting out a number of cases to which the Prosecutor submitted that I should have regard for the purposes of ensuring, as required, that the sentence which I imposed on Ms Liu was not inconsistent with the broad range of sentences which have been imposed for offences which might be considered to have some similarity with Ms Liu's offending conduct. The cases referred to in the Prosecutor's table were:

• Pittwater Council v Scahill [2009] NSWLEC 12 (Scahill);

• 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);

• Willoughby City Council v Rahmani [2017] NSWLEC 166;

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

• Hunters Hill Council v Carter [2018] NSWLEC 84 (Carter).

87. The most recent of these cases, to which reference was made in the table, was my own decision in Carter. As can be seen from my decision in those proceedings at [111], all of the decisions referred to by the Prosecutor in these proceedings (with the exception, obviously, of Carter) were referred to in those proceedings. In Carter, for the reasons discussed, I considered that the decision of the Chief Judge in Scahill provided the greatest assistance in sentencing Mr Carter. However, in these proceedings, because of a range of significant similarities between the circumstances attendant on Ms Liu's offending conduct and those of Mr Carter's offending conduct, my decision in Carter provides such significantly relevant comparative circumstances that there is no need to go beyond that decision for comparative sentence analysis purposes.

88. There are, in addition to the significant elements in common between the offending conduct in these two instances, there are also a number of distinguishing circumstances which need to be taken into account in my sentencing consideration when comparing the two cases.

89. First, I turn to the matters that are in common between them. These are:

1. Ms Liu says she was advised by the contractor who removed the trees that no council approval was required for this to occur (Carter at [15]);

2. the two trees which Ms Liu had removed were substantial native trees;

3. the trees which Ms Liu caused to be removed were part of the canopy of the urban forest in the vicinity of the Buffalo Creek Reserve and of Buffalo Creek (Carter at [49]); and

4. the relevant planning instruments applicable to the Hunters Hill local government area at the time of the offending conduct, in each instance, where identical.

90. There are, however, some significant differences between the two sets of offending conduct. Those involving Ms Liu are the subject of separate analysis in this decision. It is, however, appropriate to note the areas where Ms Liu's offending conduct can be seen to differ from that of Mr Carter. These differences can be summarised as:

1. For the reasons set out at [38] to [41], I have been satisfied that Ms Liu's conduct was undertaken by her deliberately and with express knowledge that consent was required from the Council before removal of the trees could have been permitted. This is to be contrasted with Mr Carter's position where I concluded that he was reckless in his authorisation of the interference with the trees (Carter at [66]). Although, in both instances, the relevant circumstances constituted a factor of aggravation, Ms Liu's offending conduct, in this regard, was of greater significance;

2. In Mr Carter's case, although three of the trees died following the topping/lopping of them, the trees which survived and were producing epicormic growth were doing so in circumstances where that growth required considerable long-term arboricultural supervision (Carter at [104]). In this case, because Ms Liu caused the two trees to be removed in their entirety, rectification of the environmental harm is, to the extent that it is possible (noting that a limiting factor in achieving this arises as a consequence of the trees which were removed had been located on the neighbour's property), the two trees to be planted in replacement (being ones in 100-litre pots) and to be planted under the supervision of a qualified arborist, makes it more likely that those trees will re-establish and that less arboricultural supervision will be required for this purpose;

3. The trees which Mr Carter caused to be topped/lopped were trees located on his own property and thus, although the environmental harm was significant, the relevant mitigation measures could be implemented on his own property, whereas the trees which Ms Liu caused to be removed were on her neighbour's property and there is no evidence that her neighbour consented to their removal. The consequence of this, compared to the position in Mr Carter's case, is that such mitigation measures as are to be implemented to address the environmental harm caused by Ms Liu's removal of these trees cannot be implemented on the property where the harm had occurred. The consequence of this is that the environmental benefits available to the neighbour of having those trees on her property are no longer available and will not be replaced.

The appropriate sentence

91. I am satisfied that Ms Liu's conduct provides a proper basis to find that she has committed the offence to which she has entered a plea of guilty.

92. Undertaking the necessary process of instinctive synthesis and having regard to all of the factors of Ms Liu’s offending conduct and of her subjective circumstances, I am satisfied that the appropriate starting penalty for her conduct should be $64,000.

93. As Ms Liu entered her guilty plea to the offence with which she has been charged at the earliest possible occasion (a position conceded by the Prosecutor in his written submissions at [43]), Ms Liu is entitled to the maximum discount on this sentence of 25% to reflect the utilitarian value to the justice system (R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 383).

94. As a consequence, I have determined that Ms Liu is to be fined $48,000.

Orders

95. As a consequence of that which is set out above, the orders of the Court are:

1. Yueling Liu (the Defendant), is convicted of an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 in that, on 3 February 2016, by her servants, agents and/or contractors, she cut down two 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 under cl 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 $48,000;

3. The Defendant is ordered to pay the agreed sum of $35,000, within 28 days, direct to the Council, for the Council’s costs and investigation costs and expenses;

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, the Defendant is to:

1. retain a suitably qualified arborist, having a minimum qualification of AQF Level 5 (the qualified arborist), by 13 August 2018;

2. cause two 100-litre Cheese Tree specimens, Glochidion ferdinandi (the two Cheese Trees), to be planted on the land described as Lot 2 DP 586382 and known as 24B Barons Crescent, Hunters Hill (the land) by 10 September 2018, with the planting of the two Cheese Trees:

1. to be supervised by the qualified arborist; and

2. to be at a location on the land to the north of the existing swimming pool on the land, with the final location to be determined by the qualified arborist; and

3. with the Defendant notifying the Council, in writing, within seven days of the planting that the planting had taken place.

3. cause the qualified arborist to inspect the two Cheese Trees and provide written recommendations to the Defendant and the Council for the management of the said trees so as to ensure their ongoing health and structural integrity, after 1 July 2019 and before 14 August 2019;

4. carry out, or cause to be carried out, the written recommendations of the qualified arborist, under the supervision of the qualified arborist, within 28 days of receipt of the said written recommendations.

5. The requirements set out in orders 4(c) and (d) are to be carried out and complied with by the Defendant on one further occasion, with compliance required as follows:

1. the inspection and the making or written recommendations by the qualified arborist as referred to in order 4(c) is to be carried out after 1 July 2020 and before 14 August 2020, with the carrying out of the written recommendations as referred to in order 4(d) to be carried out within 28 days of receipt of the said written recommendations;

6. Within 14 days of compliance with the requirements of each of order 4(d) and 5(a), the Defendant is to provide a certificate from the qualified arborist to the Council certifying that the requirements of the relevant order have been complied with;

7. In the event that the Defendant sells the land prior to the expiration of the requirements of Orders 4, 5 and/or 6 above, these orders lapse from the date of settlement of the sale; and

8. The exhibits and the unread affidavits are returned.

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Amendments

31 July 2018 - In [39], a redundant word removed.

Decision last updated: 31 July 2018