Jason Pett v The Council of Camden
[2008] NSWLEC 289
•9 October 2008
Land and Environment Court
of New South Wales
CITATION: Jason Pett v The Council of Camden [2008] NSWLEC 289 PARTIES: APPLICANT
RESPONDENT
Jason Pett
The Council of CamdenFILE NUMBER(S): 60011 of 2008 CORAM: Sheahan J KEY ISSUES: Appeal :- severity appeal against Local Court decision LEGISLATION CITED: Crimes (Appeal and Review) Act 2001
Crimes (Sentencing Procedure) Act 1999
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Amendment (Quality of Construction) Act 2003
Land and Environment Court Act 1979CASES CITED: Carlino v Leichhardt Municipal Council (2005) 144 LGERA 235
Power v Penthill House Pty Ltd and others (1993) 80 LGERA 247
R v Doan (2000) 50 NSWLR 115
R v O’Neill [1979] 2 NSWLR 582
Tauszik v Gosford City Council (2006) 146 LGERA 428DATES OF HEARING: 9 October 2008 EX TEMPORE JUDGMENT DATE: 9 October 2008 LEGAL REPRESENTATIVES: APPLICANT
In PersonRESPONDENT
Mr J Thompson,
Solicitor of Ritchie & Castellan
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESJustice Sheahan
9 October 2008
EXTEMPORE JUDGMENT60011 of 2008 Jason Pett v The Council of Camden
1 His Honour: The appellant in this matter pleaded guilty in the Local Court to three separate charges that he committed an offence against s.125(1) of the Environmental Planning and Assessment Act 1979 (“EP&A Act”) in that, between 10 April 2006 and 19 April 2006, he carried out development by causing 18, 35 and 119 trees respectively to be cut down on four separate properties at Catherine Field or Leppington, without obtaining, and having in force, a development consent, as required by Camden LEP No.48.
2 On 27 June 2008, the learned magistrate at Camden Local Court convicted the appellant and fined him the sum of $5,100 (discounted from $6,000) in each matter, resulting in a total fine of $15,300. The appellant was also ordered to pay one set of professional costs in the sum of $2,000, and court costs totalling $210. In addition, the local court made an order under s.126(3) of the EP&A Act against the appellant, the terms of which order appear to have been negotiated between the parties. On the same day the appellant’s brother Mark Pett was fined $6,800 (discounted from $8,000) on similar charges, and he also was ordered to pay costs and perform remedial works.
3 The provisions which principally govern the conduct of any severity appeal in respect of “environmental offences” prosecuted in the local courts are set out in Part 4 of the Crimes (Appeal and Review) Act 2001 (“CAR Act”). See also s.21(f) of the Land and Environment Court Act 1979. Such appeals are dealt with by way of a re-hearing on the transcript, and the function of this court on appeal is to re-exercise the sentencing discretion, having regard to the reasoning of the learned magistrate. As Mr Thompson said, it is my duty on appeal to be satisfied that the interests of justice are served. I have allowed Mr Pett substantial latitude in the presentation of his case. He told me he pleaded guilty on the advice of his solicitor, because he could not afford the legal costs of defending the charges, and because he expected to receive the benefit of s.10 of the Crimes (Sentencing Procedure) Act 1999.
4. No witnesses were called to give evidence at the hearing in the Local Court. The evidence adduced at the sentence hearing on behalf of the Prosecutor on 17 June 2008 constituted 4 statements, which have come before this court with the appeal papers, and which I have now examined, being:
a. Statement of John Soldo dated 3 June 2008;
b. Statement of James Sheridan dated 2 June 2008;
c. Statement of Barney John Oros dated 23 May 2008; and
d. Statement of Terrence Alfred Jarvis dated 19 May 2008.
5. The transcripts of all the Local Court proceedings have been tendered as Exhibit C1 and I have examined them closely. Mr Pett has numerous complaints about inaccuracies in the prosecution materials, including the transcript of his Record of Interview. It is, however, hard to connect any such inaccuracies with the magistrate’s process of sentencing him.
6. Mr Pett says he was misled by the Clerk of the Court when he lodged this appeal, and did not realise it was limited to the severity of the sentence imposed. From the bar table he says he removed only shrubs and noxious plants, and not “trees” as defined in any planning instruments, and that he was a dutiful employee who should not have been charged. He also said that the Council investigators gave him to understand he would in fact not be charged if he cooperated with their inquiries regarding the owner and his brother Mark.
7. Each of the first four paragraphs of his written submissions on this appeal seeks “an order that the summons be struck out”, for varying reasons. The reference to a summons must be in fact a reference to each of the Court Attendance Notices filed in the Local Court. There is no appeal as of right available to the appellant to seek such a strike-out order, the current appeal having been lodged by him, in person, specifically against only the severity of the penalty, and after a conviction following a plea of guilty (s.31(1A) of the CAR Act), and the appellant having not made any application for leave within the 28 day period prescribed by s.32(4) of that Act. Accordingly, this Court has no jurisdiction to hear his purported appeal against his conviction.
8. In any case the situation in respect of the four purported submissions on conviction is as follows (as per the written submissions of the Respondent Council):
1. He based his first submission, regarding s.127(5) of the EP&A Act, on the decision of the Court of Criminal Appeal in Tauszik v Gosford City Council (2006) 146 LGERA 428 (“Tauszik”), but s.127(5) of the EP&A Act now provides:
- “(5) Proceedings for an offence against this Act or the regulations may be commenced not later than 2 years after the offence was alleged to be committed.”
and not a period of 6 months as it did at that time.
2. His second submission is based on s.127(6) of the EP&A Act as referred to in Tauszik, but that provision was repealed pursuant to section 3 and Schedule 1 of the Environmental Planning and Assessment Amendment (Quality of Construction) Act 2003 which the relevant repealing provision came into force upon assent on 10 December 2003.
3. The third submission relates to s.127(5A) of the EP&A Act, but the respondent does not rely upon that subsection. In any event, while the proceedings were commenced on perhaps the very last day of a two-year period commencing with the original complaint to the Council about the tree works, there is no evidence of any breach by Council in the commencement of the prosecution and no point was taken before the magistrate about the validity of the Court Attendance Notice.
4. The fourth paragraph of the appellant’s submission raises no question of law. The fact that the appellant may be, as he sees it, “an employee acting innocently under the guidance of my employer”, does not absolve him from liability for doing such work without a consent. An offence under s.125(1) of the EP&A Act is a strict liability offence, so proof of intention is not required. He knew consent was necessary (see Power v Penthill House Pty Ltd and others (1993) 80 LGERA 247). As Mr Thompson submitted, James Macken’s excellent text book, upon which the appellant relies, deals with vicarious liability for civil wrongs.
9. The relevant planning laws seek to ensure that due process is followed and that development is carried out in an orderly fashion. An orderly and proper assessment of the position was required before the subject trees were cut down, or otherwise dealt with. The doing of any development without consent undermines the system of planning (Carlino v Leichhardt Municipal Council (2005) 144 LGERA 235 (“Carlino”)).
10. The appellant’s plea of guilty amounted to an admission of the elements of the offence charged, (R v O’Neill [1979] 2 NSWLR 582 at 588), even though he now protests his innocence of at least some of those elements. The appellant was, at the time of the commission of the offences, an employee of NSW Fencing Pty Limited. There is cogent evidence that trees, as defined, were removed from these properties with the assistance of machinery with which he admits an association, and during the installation of fencing and/or clearing of a pathway, tasks in which he admits involvement in the course of his employment. However, the nature and extent of the removal of the trees are clear from the photographic evidence before the learned magistrate. The offences came to light when the Council received a complaint from a neighbouring property, and, wisely or otherwise, Jason Pett pleaded guilty to them.
11. In par 5 of his written submissions he seeks an order pursuant to s.10 of the Crimes (Sentencing Procedure) Act 1999, even though it appears his solicitor did not ask the magistrate for one, but the respondent submits that, in imposing the penalty now being appealed, the magistrate treated the appellant with a degree of leniency.
12. I have carefully considered all the remarks in His Honour’s sentencing judgment on 27 June, delivered after taking a few days to reflect on the evidence before him, the thoughtful and balanced submissions made by the prosecutor, and the very strong submissions put to the magistrate on Mr Pett’s behalf by his solicitor, Mr Benatortos.
13. I, like His Honour, do not consider a s.10 order to be appropriate in this case, and I would have rejected, and do now reject, such a submission. A substantial fine was called for on the evidence, and, because of the strong case put by Mr Benatortos, a modest fine was imposed. I agree that Mr Pett was treated leniently. On appeal this Court has a discretion to increase the penalty, but the respondent does not seek an increase in the fine imposed in this case.
14. The maximum penalty for an offence against s.125(1) of the EP&A Act is, and was at the time the appellant was sentenced, a fine of $1,100,000. (See s.126(1)). The jurisdictional limit in the Local Court is, and was at the time the appellant was sentenced, a fine of $110,000.
15. Where there is a maximum penalty prescribed for an offence and a lower jurisdictional limit applicable in the Local Court, the proper approach on sentence is to have regard to the maximum penalty as the worst case and sentence within the range accordingly, taking care to ensure that the penalty does not exceed the jurisdictional limit. (R v Doan (2000) 50 NSWLR 115 (“Doan”) per Grove J at 123). The magistrate involved in this matter appears to have dealt with many tree removal cases in recent years and presumably sentences according to Doan. The penalty he imposed on Jason Pett – and indeed on Mark Pett – are at the lower end of the range which he appears to follow.
16. The purposes of sentencing are set out in s.3A of the Crimes (Sentencing Procedure) Act and need not be repeated here. The courts must consider both objective and subjective factors and circumstances to arrive at a sentence “proportionate” to the gravity of the offence.
17. The primary consideration in sentencing is the objective gravity or seriousness of the offence (Carlino). In the present case the court below was satisfied that the appellant knew, before undertaking removal of the trees, that development consent from the Council was required, and he was conscious of the fact that in undertaking and causing the removal of trees, he would be committing a breach of the law. He sees, however, no obligation on himself as an employee or a casual labourer to satisfy himself that there was, in fact, a consent or other approval.
18. 172 trees are embraced by the three charges, and the loss of so many trees in any circumstances represents substantial environmental harm, which served no public purpose, and resulted in a complaint from a concerned member of the public.
19. Turning to the subjective circumstances, I accept that the appellant had no financial motive for the offences charged and was merely working for modest wages. He has no prior convictions for environmental offences, he was cooperative, indeed very cooperative to his apparent detriment, with the requests of the Council, and he entered a plea of guilty, but not at the first opportunity, and so became entitled to a discount somewhere in the range of 10-25%. The learned magistrate applied a discount of 15%. It would appear that the appellant would, if he now could, retract that plea of guilty. In my view, a discount for the utilitarian value of the plea at or close to 15% was and remains quite appropriate.
20. However, the appellant’s attempt to withdraw his plea of guilty is indicative, as the respondent submits, of a lack of any firm contrition for the commission of the offence. Today before me he denies any wrongdoing at all. The guilty plea was the only indicator of any contrition or remorse on the appellant’s behalf when the magistrate sentenced him, and I accept it as contrition on the same basis.
21. There was no evidence tendered to the Local Court of the appellant’s good character, nor any evidence (apart from submissions from the bar table) about his financial position.
22. There is a need for both specific and general deterrence in matters of this kind: specific deterrence because of the reckless nature of the contravention; and general deterrence because of the public interest in ensuring that such removal of trees is not undertaken without proper assessment, and the imposition of adequate safeguards and controls as conditions of official consent.
23. The total fines of $15,300 and the order under s.126(3) of the EP&A Act, imposed by the learned magistrate on Jason Pett, cannot properly be said to offend against the principle of even-handedness – at least not on the side of excessiveness. The fine of $5,100 (in each case) is about 0.46% of the maximum penalty and 4.6% of the Local Court’s jurisdictional limit, according to calculations proffered by the prosecutor. His brother, who was effectively his employer or supervisor, received from the magistrate proportionately higher fines on related charges at the same time, and both of them agreed to the revegetation order made by the magistrate.
24. I agree with the prosecutor’s observation that the magistrate extended leniency to this appellant, and I believe the magistrate gave him the benefit of all the contentions on penalty he has put to me today. I accept that, in his personal circumstances as he recounted them to the court, he will, even so, endure some hardship in paying the penalty and satisfying the other orders made.
25. I have concluded that the local court’s decision should be allowed to stand in this case, but the appellant is advised to take very seriously his obligations under the s.126 order.
26. The appeal will be dismissed, and the appellant should pay the respondent’s costs.
27. [Discussion as to amount of costs].
28. The orders of the Court will be:
(1) Appeal dismissed.
(2) The penalties imposed by the Local Court in all three cases are confirmed.
(3) The appellant is ordered to pay the respondent’s reasonable costs on the appeal, determined by me in the sum of $2,000.
(4) Exhibit C1 should remain in the court file.
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