Kari & Ghossayn Pty Ltd v Sutherland Shire Council

[2006] NSWLEC 532

Reported Decision: (2006) 150 LGERA 231

Land and Environment Court

of New South Wales

CITATION:	Kari & Ghossayn Pty Limited v Sutherland Shire Council [2006] NSWLEC 532
PARTIES:	APPLICANT Kari & Ghossayn Pty Limited RESPONDENT Sutherland Shire Council
FILE NUMBER(S):	60005 of 2006
CORAM:	Preston CJ
KEY ISSUES:	Environmental Offences :- - appeal - Class 6 - appeals against convictions and sentences - offences of carrying out development contrary to development consent - no reasonable doubt of offender's guilt - appeals against convictions dismissed - appeal against sentence by way of rehearing - objective circumstances of offences - subjective circumstances of offender - parity of sentences between co-offenders - sentences not too severe - appeals against sentences dismissed Prosecution :- criminal proceedings commenced in Local Court by court attendance notice (CAN) - CAN wrongly stated time at which offence committed - conviction and sentence imposed by Local Court - appeal against conviction and sentence to Land and Environment Court - application by prosecutor on appeal to amend CAN to correct particulars as to time offence committed - whether court on appeal has power to amend CAN - power available - whether amendment can be made without injustice - amendment causes particulars to reflect evidence at trial - amendment would not cause injustice or result in an unfair trial - amendment ordered
LEGISLATION CITED:	Crimes (Local Courts Appeal and Review) Act 2001 (NSW) s 31, s 31(1), s 37(2), s 49(2), s 64 Criminal Procedure Act 1986 s 15, s 16(1), s 20, s 21, s 21(1) Environmental Planning and Assessment Act 1979 (NSW) s 76A(1)(b), s 125(1) Land and Environment Court Act 1979 s 68(1) Land and Environment Court Rules 1996 Pt 10 r 1
CASES CITED:	Borodin v R [2006] NSWCA 83 (29 March 2006); Cooper v Coffs Harbour City Council (1997) 97 LGERA 125; Director of Public Prosecutions (NSW) v Knight [2006] NSWSC 646 (11 July 2006); Durward Pty Ltd v Sutherland Shire Council [2004] NSWLEC 12 (28 January 2004); Dyers v The Queen (2002) 210 CLR 285; Environment Protection Authority v Waste Recycling Corporation [2006] NSWLEC 419 (10 July 2006); Gittany Constructions Pty Limited v Sutherland Shire Council (2006) 145 LGERA 189; Markarian v The Queen (2005) 79 ALJR 1048; Parker v Director of Public Prosecutions (NSW) (1992) 28 NSWLR 282
DATES OF HEARING:	16/08/2006
DATE OF JUDGMENT:	08/25/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr C Bolger (barrister) SOLICITORS White Barnes RESPONDENT Mr T Howard (barrister) SOLICITORS Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

25 August 2006

60005 OF 2006

KARI & GHOSSAYN PTY LIMITED V SUTHERLAND SHIRE COUNCIL

JUDGMENT

1 HIS HONOUR: The appellant, Kari & Ghossayn Pty Limited, appeals against both the convictions made and the severity of the sentences imposed by Magistrate P Lyon in three proceedings prosecuted by Sutherland Shire Council (“the Council”) in Sutherland Local Court for offences against the Environmental Planning and Assessment Act 1979 (NSW) (“the EPA Act”).

2 The three offences with which the appellant was charged were against s 125(1) of the EPA Act, in that the appellant carried out development that was not in accordance with a development consent granted by this Court, in contravention of s 76A(1)(b) of the EPA Act.

3 The three offences occurred on a property at 54-62 Osprey Drive, Illawong (“the site”). The offences involved the removal of trees and indigenous bushland from the western corner of the site. One of the offences (Case No 00138 042/05/172) involved the breach of a condition of development consent (condition 60 of development consent 03/1179) by failing to retain, protect and enhance the patches of indigenous bushland located in the western corner of the site and failing to retain and isolate all existing trees, shrubs, groundcovers and sandstone rock outcrops from all forms of building activities. The other two offences (Case Nos 00138 034/05/172 and 00138 053/05/172) involved the breach of conditions of the development consent (conditions 58 and 60 of development consent 03/1179), by removing two Eucalyptus gummifera trees (commonly known as Red Bloodwood).

4 The defendant pleaded not guilty to each of the charges and a trial was held before the Local Court on 6 March 2006. The Local Court found each of the offences proven. The Local Court immediately embarked on a sentence hearing. The Local Court imposed sentences on the same day. The Local Court convicted the appellant as charged for each of the offences and sentenced it to pay a fine of $37,000 in relation to the offences involving the indigenous bushland (Case No 00138 042/05/172) and $7,500 in relation to the offences involving each of the trees (Case Nos 00138 034/05/172 and 00138 053/05/172). The Local Court also ordered the appellant to pay professional costs of $1,500 and Court costs of $65.00.

5 The appellant appealed to this Court under s 31 of the Crimes (Local Courts Appeal and Review) Act 2001 (NSW) (“the Review Act”). Although only one appeal was lodged in respect of one conviction and sentence (“the primary conviction and sentence”), pursuant to s 64 of the Review Act, the Court may hear and determine appeals against the other convictions and sentences imposed on the same day and against the same person as the primary conviction and sentence. The Court did so.

Amendment of particulars

6 At the outset of the hearing of the appeal the respondent Council moved the Court for an order that the particulars to each of the three charges be amended with respect to the dates of each alleged offence. The amendment was to delete the words in the particulars specifying the time at which the offence was committed “on or about 9 August 2004” and replace them with the words “on a date or dates unknown between about 14 May 2004 and 29 June 2004”. I determined to allow the amendment.

7 The Court has power to make such amendment pursuant to s 68(1) of the Land and Environment Court Act 1979 and Part 10 r 1 of the Land and Environment Court Rules 1996. The Court also may exercise on an appeal against conviction from the Local Court the power the Local Court itself had to amend the Court Attendance Notices: s 49(2) of the Review Act. These powers are in ss 20 and 21 of the Criminal Procedure Act 1986. These sections apply to a court attendance notice by which criminal proceedings are commenced in the Local Court: s 15 of the Criminal Procedure Act 1986.

8 Section 20 provides that an indictment (which includes a court attendance notice) may not be amended after it is presented, except by the prosecutor with the leave of the court or with the consent of the accused. Section 21 permits the court to amend defective indictments. Where the court is of the opinion that an indictment is defective but, having regard to the merits of the case, it can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case: s 21(1).

9 A defective indictment is not necessarily bad. Section 16(1) of the Criminal Procedure Act 1986 provides that an indictment is not bad, insufficient, void, erroneous or defective on a number of stated grounds. Relevantly, one of those grounds is in s 16(1)(g) which states:

“(g) Except where time is an essential ingredient, for omitting to state the time at which the offence was committed, for stating the time wrongly or for stating the time imperfectly”.

10 In this case, the Court Attendance Notices may have wrongly or imperfectly stated the time at which the offences charged were committed. The evidence at the trial established that the trees and the bushland and rock outcrop in the western corner were removed before the particularised date of 9 August 2004. However, such a defect did not cause the Court Attendance Notices to be bad, insufficient, void, erroneous or defective: see s 16(1)(g) of the Criminal Procedure Act 1986. Time is not an essential ingredient of offences against s 125(1) and s 76A(1) of the EPA Act. The Court had power under s 21(1) to order the Court Attendance Notices to be amended by substituting a different time period in which the offences were committed: see Director of Public Prosecutions (NSW) v Knight [2006] NSWSC 646 (11 July 2006) at [16]-[19], [37] and Cooper v Coffs Harbour City Council (1997) 97 LGERA 125 at 132-133.

11 Having regard to the merits of the case, such amendment could be affected without injustice to the appellant. The amendment to the defective particular would enable the charge to more appropriately reflect the evidence that had been adduced at the trial. No further evidence was necessary. It could not be said that an amendment to the particulars to the Court Attendance Notices would have carried with it any injustice or resulted in an unfair trial: Borodin v R [2006] NSWCA 83 (28 March 2006) at [20]-[24] and Director of Public Prosecutions (NSW) v Knight [2006] NSWCA 646 (11 July 2006) at [36].

The evidence on the appeals

12 The appeals proceeded on transcripts of evidence in the original court being:

(a) transcript of the hearing in Sutherland Local Court on 6 March 2006 (Exhibit A);

(b) the brief evidence tendered by the prosecutor in the Local Court (comprising various statements, letters, photographs, plans and other documents) (Exhibit B);

(c) the affidavit of Scott Alexander Dougall sworn 3 March 2006 (Exhibit C); and

(d) the letter from the appellant to Gittany Constructions Pty Limited, (Attention: Sam) dated 13 May 2004 (Exhibit D).

13 The appellant sought leave under s 37(2) of the Review Act to read the affidavit of Marion Wang sworn 8 August 2006. Under s 37(2) of the Review Act, the Court has the discretion to admit fresh evidence on the appeal if the Court is of the opinion that it is in the interests of justice that the fresh evidence be given.

14 The evidence of Ms Wang was directed to proving that the site foreman of the appellant, Mr Sam Grace, was employed for a limited period. Mr Grace was said by a witness, Mr Charlie Gittany, to have made certain admissions that the appellant carried out the activities that constituted the offences. If Mr Grace was not there at the time the admissions were said to have been made, that might raise doubt as to the reliability of Mr Gittany’s evidence.

15 Notwithstanding its potential relevance, I determined that it was not in the interests of justice to allow this evidence to be adduced on the s 31(1) appeal to this Court.

16 First, and more importantly, the evidence was readily available to the appellant at the time of the trial in the Local Court. Ms Wang was the company secretary with the appellant. Ms Wang annexed to her affidavit PAYG payment summaries for Sam Grace and print outs of payments made to Sam Grace by the appellant. The period of time to which these PAYG payment summaries and print outs related was 7 May 2004 to 15 June 2004. This period preceded the trial on 6 March 2006 by almost two years. The evidence was in the prosecution of the appellant and was readily available to the appellant at the time of the trial in the Local Court. The issue in respect of which the evidence related was an issue that was squarely raised in the trial in the Local Court. If the evidence was relevant, the appellant ought to have tendered it at the trial in the Local Court. No explanation was proffered by the appellant as to why the evidence was not adduced at the trial in the Local Court. It is not in the interests of justice to allow the appellant to run a different case to that it ran at the trial.

17 Second, but less importantly, the text of the affidavit states that the period of Mr Grace’s employment was 7 May 2004 to 15 June 2006. The appellant submitted that the affidavit was factually incorrect and that the true position was that shown in the PAYG payment summary and printout. Accordingly, the affidavit evidence would have to be corrected by oral evidence by Ms Wang. It is not in the interests of justice that the hearing of the appeal be adjourned to allow Ms Wang to attend to give oral evidence to correct the affidavit she had sworn to be the truth.

18 The Council also sought leave under s 37(2) of the Review Act to adduce fresh evidence from a Mr Gregory Francis Melville. The evidence of Mr Melville was sought to be adduced in two forms, first, of an affidavit sworn 9 August 2006 and secondly, oral evidence.

19 The affidavit evidence referred to a letter dated 29 June 2004 that Mr Melville had written to the Council. A copy of that letter was already in evidence, being part of the prosecutor’s brief of evidence tendered in the Local Court which became Exhibit B on the appeal. Mr Melville sought in his affidavit to clarify that the “huge rock shelf and flora” referred to in his letter was located in the western corner of the site. Mr Melville marked the location on an aerial photograph annexed to the affidavit. Mr Melville also confirmed that at the time of writing the letter of 29 June 2004 the rock shelf and flora had been removed. This was evident in any event from the letter but Mr Melville wished to confirm the fact. The appellant did not suggest that it would be prejudiced by the admission of the affidavit evidence. The evidence probably did no more than clarify what would already be the reasonable inferences the Court would draw from Mr Melville’s letter of 29 June 2004, but it was better that the evidence be clear. I determined that it was in the interests of justice that the affidavit of Mr Melville be admitted on the appeal.

20 The oral evidence of Mr Melville fell into a different category. The Council said that Mr Melville proposed to give oral evidence as to what he observed at an earlier time in June. This was new and different evidence to what had been adduced at the trial in the Local Court. I determined that this was evidence which the Council had available to it at the trial before the Local Court and which could have readily been called by it. Consistent with the ruling that I made in relation to the appellant’s application to adduce evidence that it had available to it at the trial, I determined that it was not in the interests of justice to allow the Council to call oral evidence from Mr Melville.

21 Accordingly, in addition to the four documentary exhibits, I allowed the affidavit of Mr Melville sworn 9 August 2006 to be read on the hearing of the appeal.

The incident

22 In April 2004, Gittany Constructions Pty Limited (“Gittany”) purchased the site with the development consent already having been granted by the Council. The site at the time was significantly vegetated. Of relevance in this case, the indigenous bushland and the sandstone rock outcrops located in the western corner as well as trees 187 and 188 were intact.

23 After purchasing the site, Gittany invited the appellant to tender for the work of tree clearing and bulk excavation on the site. Mr Charlie Gittany, a director of Gittany, stated that Gittany invited the appellant to tender for the work of tree clearing and bulk excavation because of the appellant’s reputation as a very experienced contractor that carried out these types of work. Gittany sent a selection of the development consent drawings and a survey to the appellant for the purposes of the appellant tendering for the work.

24 On 13 May 2004, the appellant by letter of that date made an offer to Gittany to perform work namely:

“(a) site clearing - $5,000 (trees to be mulched and mulch left on site for erosion control);
(b) bulk excavation - $32/m3 (quantities to be calculated from the drawings)”

25 The drawings referred to by the appellant were Drawings DA02 - Issue B DA03 - Issue B, DA03a – Issue C DA04 – Issue C, DA05 – Issue C, DA06 – Issue C, DA06a – Issue C, DA06b – Issue C, DA08 – Issue B, S201 & S2-02 (Drawings by Architecture and Building works) and Plan 2232 date 15-05-03 (drawing by Wallis and Moore): see the appellant’s letter of offer dated 13 May 2004.

26 The letter of offer by the appellant was signed by a Mr Paul Ryan for the appellant. Mr Ryan gave evidence that the appellant was not provided with a copy of the actual development consent or the landscape plan referred to in the consent before the appellant tendered for the work.

27 Gittany accepted the appellant’s offer immediately. Hence, on 13 February 2005, the appellant sent to Gittany a job registration/project detail sheet. This described the project as “Job No 2285”. Under the heading of project details, the nature of the contract was described to be “site clearing and bulk excavation”. The starting date for the project was specified as 14 May 2004. The duration was estimated to be two weeks. The original contract sum was stated to be $32/m3. The foreman of the appellant was named as “Sam”. This was a reference to Sam Grace.

28 Sometime in mid May and before work commenced on 14 May 2005, Charlie Gittany met with Paul Ryan, the project manager of the appellant, and Sam Grace, the site foreman of the appellant, on the site. No clearing of vegetation or excavation had been carried out at that time. The meeting occurred initially in the site shed which had been erected by Gittany.

29 Charlie Gittany said he gave Sam Grace all of his drawings, including the landscape drawings, the DA drawings, and the construction certificate drawings. Paul Ryan says he did not see the landscape plan until later in the job when the bulk excavation had almost finished.

30 Charlie Gittany said he also walked around the site showing Sam Grace and Paul Ryan all of the trees to be retained. These trees had tape tied around them. Charlie Gittany said he also showed them the two trees that were the subject of an arborist’s report. Charlie Gittany gave them the arborist’s report. These two trees were different to trees 187 and 188, the subject of the charges. Charlie Gittany said he discussed with Sam Grace and Paul Ryan the rock outcrop that was to be retained.

31 Charlie Gittany said he told Sam the marked trees and the outcrop were not to be touched or interfered with.

32 Charlie Gittany said that, although he did not provide a copy of the development consent to the appellant, nevertheless a copy of the development consent was kept in the site office shed and was therefore available to be inspected. Charlie Gittany told Sam Grace that Sam was able to access the plans and the development consent kept in the shed at any time. Paul Ryan said that he (Paul Ryan) was not told this.

33 Charlie Gittany said he went over the development consent with Sam Grace a number of times, including discussing the conditions concerning retention of trees and rocks. Charlie Gittany said Sam Grace was very inexperienced. It was his first job and he was confused. Charlie Gittany said he kept walking around with Sam making sure he did not do those things he was not meant to do.

34 Charlie Gittany said he showed Sam Grace a number of times the trees to be retained. Paul Ryan said he did not remember any trees in the western corner.

35 There was also a sediment control fence with star pickets to stop people going inside onto the trees. Charlie Gittany said Gittany put the sediment control fence in. It was in place at the times when Charlie Gittany was speaking to Sam Grace and showing him around the site.

36 The appellant commenced work on the site on 14 May 2004.

37 Paul Ryan stated he was the project manager for the appellant. He said he visited the site every second or third day, for about 2 to 3 hours at a time. Sam Grace was the appellant’s foreman on site. He was there every day. Paul Ryan stated that Sam Grace was “running the show” on site.

38 There was a site shed on the site from the commencement of work by the appellant. The appellant had access to the site shed. It was mainly for the appellant’s use because they were the only ones on the site. Indeed, Paul Ryan said that Sam Grace used the shed as his office.

39 The appellant cleared the site using its own 35 tonne excavator with a mulching device on the front of the excavator. The 35 tonne machine did the clearing in the first three weeks of the project. After that the appellant used a larger, 50 tonne excavator to carry out the bulk excavation. The bulk excavation was carried out in about early June. Mr Nicholls was employed by the appellant to carry out the bulk excavation. Mr Nicholls observed that the trees mostly had been removed by the time he had arrived on site. However, he did take out two trees. Mr Nicholls stated that down in the western corner it was all rock and had to be hammered out. He carried out that work using the 50 tonne excavator.

40 Charlie Gittany stated that he was overseas for 4-5 weeks in May and June.

41 After Charlie Gittany returned from overseas, he observed that trees 187 and 188 and the rocks had been removed. Charlie Gittany did not see them being removed.

42 Charlie Gittany said he had a conversation with Sam Grace about the removal of the trees and rocks. Charlie Gittany asked: “What [sic] did you take them out for?” and Sam said “Oh, we needed to turn the semi trailers around, it was a lot easier for them.” Charlie Gittany did not know whether the semi trailers ever did turn around there or not. He was just repeating what Sam Grace had told him. Another version of what Sam Grace said was “Mate, it’s a lot easier if the trees weren’t there and the rocks”.

43 Charlie Gittany said Sam Grace said that Gittany took the trees down before the appellant went into the bulk excavation. By removing the trees, the appellant could turn inside the site and was better able to excavate and remove the material.

44 Paul Ryan said the appellant’s vehicles could not have used that part of the site for the purpose of turning because the area was too small. Mr Ryan said during the time he was on the site he did not see the appellant remove any trees marked for preservation.

45 The rock outcrop in the western corner was near the excavation that was required for the purpose of the construction of a stairway for the development. The rock in the area where the stairs were being constructed was removed.

46 The appellant had completed the bulk excavation work by early July according to Mr Ryan. The appellant left the site by early July. My Ryan recalls that the site was “clean” or “clean and clear” by the time the appellant left the site. The western corner “was clear of all vegetation and it was effectively a flat, level, gravel ground”.

47 After the appellant left the site, detailed excavation work was carried out by another contractor. Accordingly, the contractor carrying out the detailed excavation work did not overlap with the appellant’s period of occupation of the site.

48 Gittany did not have any workers on site during the period of the appellant’s occupation of the site.

49 The only person other than the appellant who had workers on the site was a plumber who was there only for the last couple of days before the appellant left the site. The plumber had only just started their lines for the sewerage and the general plumbing for the units.

50 On 10 August 2004, officers of the Council inspected the site and took a number of photographs. The officers observed and the photographs show that only one tree remained in the western corner (tree 186), trees 187 and 188 had been removed, the rock outcrops had been removed, stockpiles and building materials were stored in the western corner and there was no evidence of any barriers or protective material to isolate the western corner.

The appeals against convictions

The appellant’s submissions

51 The appellant provided detailed written submissions and made oral submissions on the appeals against convictions. The appellant submitted that, on a review of the evidence, the guilt of the appellant was not, to the necessary standard of beyond reasonable doubt, proved by the prosecutor for any of the offences.

52 In relation to the offence involving the bushland and rock outcrop in the western corner, the appellant submitted:

(a) There was evidence that the appellant took protective measures to isolate vegetated areas;

(b) The offence was originally particularised as occurring on or about 9 August 2004 but there was no evidence that the appellant was working on site at that date. This submission lost its force when the particulars of the charge were amended to specify the period as being between 14 May 2004 and 29 June 2004.

(c) Other contractors were working on site near the end of the completion of the work, which raises doubts as to who may have committed the offence;

(d) The evidence establishes that the appellant was not responsible for the stockpiles of excavated materials and building material shown in the photographs in August 2004. This stockpiling must have occurred after the appellant left the site;

(e) The evidence of Charlie Gittany that the site foreman, Sam Grace, admitted to Charlie Gittany that the appellant removed the bushland and the trees was unreliable;

(f) The prosecutor’s failure to call Tony Gittany, another director of Gittany, allows the Court to draw a Jones v Dunkel inference that the evidence of Tony Gittany would not have furthered the prosecution case; and

(g) The prosecution’s case is circumstantial. The inference that the appellant removed the bushland in the western corner is not the only rational inference that can be drawn in the circumstances.

53 In relation to the offences involving trees 187 and 188, the appellant again submitted on the evidence that guilt is not, to the necessary standard, established by the prosecutor. The appellant reiterated its submissions in relation to the bushland in the western corner, but as applied to trees 187 and 188.

The Council’s submissions

54 The Council also provided detailed written submissions and made oral submissions on the appeals against convictions. The Council noted that it was not in dispute that trees 187 and 188 and the bushland and sandstone rock outcrop in the western corner had been removed. Rather, the appellant’s case was that the evidence did not establish that the appellant, as distinct from someone else, removed them. The Council submitted that, to the contrary of the appellant’s submission, the evidence that the appellant removed the trees and rock outcrop was overwhelming.

55 The Council submitted:

(a) The appellant was engaged by Gittany as a demolition and excavation contractor to clear the site and carry out bulk excavation;

(b) The appellant did actually carry out clearing and bulk excavation and carried out those works on the site for a period of about 2½ to 3 months commencing about mid May 2004;

(c) Mr Nicholls, an employee of the appellant, stated that devegetation was carried out over three weeks by a 35 tonne excavator before Mr Nicholls arrived on site to carry out the bulk excavation. Mr Nicholls said he carried out bulk excavation until early July 2004;

(d) The appellant had the capacity to remove the trees and sandstone outcrop, having heavy excavators on site for devegetation and bulk excavation. The appellant had the opportunity to do so, being on site with this equipment and for that purpose for 2½ to 3 months. Removal of the trees and the sandstone outcrop came within the scope of the work of site clearing and devegetation which the appellant performed and did perform on the site;

(e) On the evidence, there is no reasonable hypothesis that any other person had the capacity or the opportunity to remove the trees or the sandstone outcrop. Mr Nicholls gave evidence that during the period the appellant was engaged in the clearing and excavation works there were no other contractors on the site until the plumbers came in in the last couple of days before the bulk excavation was finished. Mr Ryan also gave evidence that there were no other contractors on the site while the appellant was working there, until the end when the plumber came in and started doing his trenches. It is fanciful to suggest that the plumbers removed the trees and the bushland and sandstone outcrop in the western corner;

(f) Mr Ryan stated that the appellant had left the site clean and clear including the western corner which was clear of all vegetation and was effectively a flat, level, gravel ground by the time the appellant had finished its job;

(g) Sam Grace, the appellant’s foreman, had day to day control of the works being carried out by the appellant on the site. Mr Grace admitted to Charlie Gittany that the appellant had removed the trees and rock outcrop and articulated a reason why this had been done. The reason was to give room for the appellant’s trucks to turn around. Charlie Gittany was extensively cross-examined as to this conversation with Mr Grace but he firmly maintained that there was a conversation to this effect. No reasonable doubt has been raised in relation to Mr Gittany’s evidence; and

(h) No inference should be drawn against the prosecutor by a reason of Tony Gittany not having given evidence: see Dyers v The Queen (2002) 210 CLR 285 at 291 [6] and 295 [17] and A Papamatheos , “Can an inference be drawn against the Crown for failure to call a material witness?” (2006) 30 Crim LJ 24.

Offences proven

56 I find that there is no reasonable doubt that the appellant committed each of the offences. This conclusion logically follows from the findings that I have made above, particularly:

(a) Prior to the appellant entering occupation of the site, the site was significantly vegetated, including the two trees 187 and 188 and the indigenous bushland and the sandstone rock outcrop in the western corner of the site;

(b) The appellant was engaged by Gittany expressly for the purpose of clearing trees from the site and carrying out bulk excavation of the site. Gittany engaged the appellant to do these tasks instead of Gittany performing them. No other contractor was engaged by Gittany to carry out these tasks;

(c) The appellant was provided by Gittany at the tender stage with the development consent plans and survey and the appellant knew of the existence of the development consent. The appellant’s site foreman, Mr Sam Grace, was subsequently shown the development consent, including the relevant conditions 58 and 60 on site;

(d) The appellant knew that certain trees were required by the development consent to be retained on the site. These trees were marked distinctively with tape. Other trees were permitted to be removed by the development consent. The work that was the subject of the contract with the appellant was to remove the trees that were permitted to be removed and to retain the trees that were required to be retained;

(e) The appellant knew that an area in the western corner of the site was required to be retained;

(f) At least the appellant’s site foreman, Mr Sam Grace, was shown the trees to be retained and the area in the western corner to be retained. The trees and the area were identified by markings. The trees to be retained were marked by tape. The area in the western corner to be retained had a sediment control fence to prevent incursion;

(g) The appellant was aware of the matters in (a)-(f) above before the appellant commenced work on site on 14 May 2004.

(h) The appellant commenced work on 14 May 2004 with a 35 tonne excavator with a mulcher fitted on the front. This equipment was provided by the appellant for the express purpose and was used by the appellant for the purpose of clearing the vegetation and mulching it;

(i) The clearing of vegetation was carried out by the appellant for a period of about three weeks after 14 May 2004;

(j) After three weeks, Mr Nicholls of the appellant started work on the site with a 50 tonne excavator. By the time Mr Nicholls started work, the vegetation had been substantially removed from the site;

(k) Mr Nicholls carried out bulk excavation on the site until early July 2004;

(l) When the appellant left the site, it was clean and clear, including the western corner of the site which was clear of all vegetation and was effectively a flat, level, gravel ground. This means that trees 187 and 188 and the bushland and the rock outcrop in the western corner had been removed by this time.

(m) No other person had any excavators or machinery on site during the period of occupation of the site by the appellant. The contractors who carried out detailed excavation work did not start until after the appellant left the site in early July 2004. The plumber who was on site was only there in the last couple of days before the appellant left the site in early July 2004. The nature of the plumber’s work was limited to digging trenches for sewerage and putting in plumbing for the development. Gittany did not itself have any workers on site during the period of occupation by the appellant. There were no other persons working on the site. Accordingly, the appellant was the only person who had the opportunity to remove trees 187 and 188 and the bushland and rock outcrop in the western corner.

(n) The rock outcrop was described as “huge” by Mr Melville, a resident who lived across the road. The trees were also large. The appellant had the machinery to remove the rock outcrop and the trees, being the 35 tonne excavator with the mulcher fitted and the 50 tonne excavator. No other person had the equipment or means to remove the rock outcrop and trees in the period that the appellant occupied the site.

(o) The appellant’s site foreman, Mr Sam Grace, admitted that the appellant had removed the trees and the rocks. The reason Mr Grace offered was to enable the appellant to turn its trucks during the carrying out of the work.

57 Having regard to these findings, there can be no reasonable doubt that the appellant was responsible for the removal of trees 187 and 188 and the bushland and rock outcrop in the western corner. As the prosecutor submitted, the evidence on the rehearing, as it was at the trial, is overwhelmingly in support of the appellant’s guilt on each of the charges. The fact that Tony Gittany did not give evidence does not alter the conclusion that properly can be drawn from the evidence that was given.

58 Accordingly, I find the appellant guilty as charged of each of the offences. The appeals against convictions should be dismissed.

Appeals against sentence

Appellant’s submissions

59 The appellant submitted that the sentence imposed by the Local Court for the offence involving the bushland and the rock outcrop in the western corner was too severe. The appellant did not press its appeals against severity of the sentences imposed for the offences involving removal of the two trees 187 and 188.

60 The appellant submitted that the sentence imposed by the Local Court of a fine in the amount of $37,000 for the offence involving the bushland and rock outcrop was too severe because:

(a) If Gittany had complied fully with conditions 58 and 60 of the consent, there would have been a physical means of isolation of the bushland and rock outcrop in the western corner and protective fencing around trees 187 and 188. Such physical barriers would have put the appellant on notice that it should not clear the bushland and trees or excavate the rock outcrop;

(b) The appellant has no prior convictions;

(c) The appellant has operated in the industry since 1981. The fact that the appellant has not been convicted in 24 years of operation is evidence of the appellant’s good character;

(d) The appellant’s counsel stated he was instructed to state from the the bar table the appellant was contrite and remorseful;

(e) There is no reparation that can now be made by the appellant. Gittany had already carried out landscaping of the site. Accordingly, all that could be done has been done;

(f) In relation to parity between co-offenders, Gittany was fined $20,000 by the Local Court. Gittany had pleaded guilty. The fine of $20,000 for Gittany reflected the 25% discount for the utilitarian value of the plea of guilty. However, the sentence for the appellant of $37,000 is greater than would be justified for any discount for the utilitarian value of the plea of guilty (i.e. $37,000 less 25% is $27,750, not $20,000). Accordingly, the figure of $37,000 is too high.

The Council’s submissions

61 The Council submitted that the sentence of $37,000 was appropriate having regard to the objective gravity of the offences and the subjective circumstances of the appellant. The Council did not submit that the Court should increase the fine. The Council had not appealed against the leniency of the sentence.

62 The Council submitted the objective seriousness of the offence is highlighted by the purpose for which the conditions of consent which were breached by the appellant were imposed. The Council referred to the reasons for judgment of the Court when it granted consent subject to those conditions: see Durward Pty Ltd v Sutherland Shire Council [2004] NSWLEC 12 (28 January 2004) at [6], [25]-[30], [37], [38] and conditions 58 and 60.

63 The Council noted that in the appeal to this Court by Gittany against the severity of sentence imposed by the Local Court, this Court indicated that the fine imposed by the Local Court of $20,000 was too low and that the Court, considering the matter afresh, would have fixed a fine of $45,000. However, because a warning had not been given to Gittany of the possibility of the Court increasing the sentence, the sentence of the Local Court of $20,000 was left undisturbed and the appeal was dismissed. The true comparison for the purpose of the principle of parity should, therefore, be between $45,000 (being the fine which this Court would have imposed for Gittany) and $37,000 (being the fine imposed by the Local Court against this appellant). This comparison shows the sentence of $37,000 is not too severe.

Sentences not too severe

64 This Court on an appeal against severity of sentence under s 31(1) of the Review Act redetermines the appropriate sentence on the evidence at the time of the rehearing: Gittany Constructions Pty Limited v Sutherland Shire Council (2006) 145 LGERA 189 at 199 [20] - 200 [21]. The Court may decrease as well as increase the sentence if it considers the sentence of the Local Court too severe or too lenient, respectively. If the Court considers there is a possibility of it increasing the sentence, fairness dictates that a warning be given to the appellant to afford the appellant an opportunity to consider whether to not to apply for leave to withdraw the appeal against severity of the sentence: Parker v Director of Public Prosecutions (NSW) (1992) 28 NSWLR 282 at 295, 300 and Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 at 232 [210] - 233 [213].

65 In this case, the Council as prosecutor did not appeal against the leniency of the sentences imposed by the Local Court and did not on the appeals submit that more severe sentences should be imposed. I indicated at the hearing of the appeals I was not minded to give a Parker warning. If I was of the view that the sentences were too lenient, I would simply dismiss the appeal on the basis that the sentences were not, at the least, too severe.

66 I have determined that the sentence of a fine of $37,000, being the amount imposed by the Local Court, whilst lower than what I consider would be appropriate, nevertheless is within, but at the lower end of, the range appropriate to the objective circumstances of the offence involving the bushland and rock outcrops in the western corner and the subjective circumstances of the appellant.

67 The matters relevant to sentencing the appellant for this offence include the objective gravity of the offence, the subjective circumstances of the appellant and the principle of parity in sentences between co-offenders.

68 In relation to the objective gravity of the offences, the following factors are relevant:

(a) The maximum penalty : The maximum penalty for each of the offences of $1,100,000 shows the seriousness with which parliament views the offences.

(b) The objective harmfulness of the appellant’s actions : The commission of the offence caused material environmental harm. The western corner of the site contained patches of indigenous bushland and existing trees, shrubs, ground covers and sandstone rock outcrops. Trees 187 and 188 were in this location. Trees 187 and 188 were of an indigenous species, Eucalyptus gummifera . They were both healthy, robust specimens, of about 10 metres in height with a full canopy of about 8 metres. The bushland in the western corner and the identified trees were of value. Their value is evidenced in the reasons given by the Court in deciding to grant the consent and in the particular requirements the conditions of consent that they be retained, protected and enhanced. The work carried out by the appellant significantly altered the site. Trees 187 and 188 were totally removed. Whatever indigenous bushland, existing trees, shrubs, ground covers and sandstone rock outcrops that were in the western corner of the site were totally removed except for one tree, tree 186, which was also required to be retained and protected. The appellant’s own evidence was that the appellant left the site clean and clear, including the western corner which was clear of all vegetation and was effectively a flat, level, gravel ground by the time the appellant had finished its work.

(c) The appellant’s state of mind : The appellant knew that the trees and bushland in the western corner were required to be retained. The appellant’s site foreman, Sam Grace, was aware of the particular development consent conditions and their requirements. The appellant’s conduct in removing the trees and rocks therefore involved a wilful breach of the development consent. Even on Mr Ryan’s evidence, the appellant’s conduct was negligent. Mr Ryan was the appellant’s project manager for the project. Mr Ryan knew that development consent had been granted and that there were requirements in that consent for the retention of certain aspects of the environment. Mr Ryan said he did not receive a copy of the consent but equally he did not ask for the consent. For the appellant’s project manager to carry out a project without obtaining, reading and ensuring compliance with the development consent which authorised the project, was negligent. On no view could the removal of the trees and bushland and rock outcrops be seen to be a mere accident;

(d) The appellant’s reasons for committing the offence : The appellant removed the trees and the bushland and rock outcrops for reasons of practicality and expediency in carrying out the project. It was easier for the appellant to turn its trucks if the trees and rocks were removed.

(e) Need for deterrence : The fact that the appellant was an experienced contractor in site clearance and bulk excavation, having operated in the industry for 24 years, makes deterrence, both specific and general, a relevant purpose of sentencing in this case. Operators such as the appellant in the development industry need to be told, by the Court’s sentence, that breaches of the EPA Act, including by failure to carry out development in accordance with a development consent, will be visited with significant financial consequences: see Gittany Constructions Pty Limited v Sutherland Shire Council (2006) 145 LGERA 189 at 230 [190]-[192].

69 In relation to the subjective circumstances of the appellant, the following factors are relevant:

(a) No prior convictions : The appellant has no prior convictions.

(b) Prior good character : The prior good character of the appellant is evidenced only by the fact that this is the first environmental offence for the appellant in 24 years of operating in the industry. There is no other evidence of the appellant’s good character.

(c) Contrition and remorse : The appellant’s bare statement through its counsel of its contrition and remorse is of little weight: see Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419 (10 July 2006) at [203] - [215].

70 Taking the objective circumstances of the offence as well as the subjective circumstances of the appellant into account by a process of instinctive synthesis (see Markarian v The Queen (2005) 79 ALJR 1048 at 1058 [38], [39], 1059 [51] – 1061 [58], 1063 [66] – 1067 [84]), the appropriate sentence should be $70,000. However, as I have indicated, I was not minded to give a Parker warning of the possibility of increasing the sentence and I do not consider it appropriate to increase the sentence now.

71 In relation to the principle of parity, there is no marked disparity between the sentence imposed on Gittany and the sentence of $37,000 imposed by the Local Court on the appellant which could give rise to a justifiable sense of grievance. Although the sentence imposed by the Local Court on Gittany was $20,000, that sentence was considered too lenient on appeal and a sentence of $45,000 would have been imposed by this Court had a warning of the possibility of an increase in sentence been given to Gittany. Compared to such a sentence, $37,000 is lower.

72 Furthermore, there are material differences between the co-offenders. Gittany had pleaded guilty at the first available opportunity while the appellant had pleaded not guilty. Gittany had assisted the authorities in relation to the investigation and prosecution of its own offence and the prosecution of the appellant for these offences while the appellant has provided no assistance. The mitigating circumstances for Gittany were quantified as meriting a discount of 35%: Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 at 228 [178]. The mitigating circumstances for Gittany were far more significant than those that apply to the appellant. This suggests that the appropriate sentence for the appellant ought be materially higher than Gittany, assuming the objective gravity of each offender’s offence is similar. As I have said, an appropriate sentence for the appellant’s would be $70,000 but for the fact I determined not to give a Parker warning.

73 For these reasons, considering the matter afresh by way of rehearing, a fine of $37,000 imposed by the Local Court cannot be considered too severe.

Orders

74 I order:

1. Each of the appeals is dismissed.

2. The penalties imposed by the Local Court of a fine of $37,000 in relation to the offence involving indigenous bushland in Local Court proceedings No 00138 042/05/172, $7,500 in relation to the offence involving Tree 187 in Local Court proceedings No 00138 034/05/172, and $7,500 in relation to the offence involving Tree 188 in Local Court proceedings No 00138 053/05/172 are each confirmed.

3. The appellant is to pay the respondent’s costs of the appeal, as agreed or assessed.

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