Ku-ring-gai Council v Edgar

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ku-ring-gai Council v Edgar [2017] NSWLEC 49
Hearing dates:	27 April 2017
Date of orders:	01 May 2017
Decision date:	01 May 2017
Jurisdiction:	Class 5
Before:	Moore J
Decision:	Orders at [72]
Catchwords:	PROSECUTION – cutting down of 74 trees without appropriate consent of Council – absence of consent from owner of or trustee for the land upon which the removed trees were located – plea of guilty – agreed facts demonstrate plea appropriate – extent of environmental harm caused – whether aggravating factor – held to be aggravating factor – tree-cutting was undertaken for financial benefit – further aggravating factor – assessment of seriousness of the offending conduct  – offending conduct of moderate seriousness PENALTIES – discount for early plea – no proper basis to apply s 10 of Crimes (Sentencing Procedure) Act 1999 – Defendant to be convicted – need to provide for both specific and general deterrence – indicative starting sentence of $45,000 fine for offence – total discount of 33% (including discount for the early guilty pleas) results in an appropriate penalty of $30,000 PENALTIES – financial circumstances of Defendant – whether discretion to reduce penalty further pursuant to s 6 of the Fines Act 1996 appropriate – adequacy of evidence concerning Defendant’s financial circumstances – Defendant with limited income and modest financial means – impact of imposition of order for payment of Prosecutor’s costs – appropriate to exercise discretion to reduce penalty further in light of costs order and Defendant’s limited financial circumstances – fine of $16,000 imposed
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999, ss 3, 10, 21A and 22 Environmental Planning and Assessment Act 1979, s 125(1) Fines Act 1996, s 6 Noxious Weeds Act 1993 Rural Fires Act 1997, Div 9
Cases Cited:	Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 City of Sydney v Adams [2015] NSWLEC 206 EPA v Barnes [2006] NSWCCA 246 Pittwater Council v Scahill (2009) 165 LGERA 289; [2009] NSWLEC 12 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 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
Category:	Sentence
Parties:	Ku-ring-gai Council (Prosecutor) Craig Maurice Edgar (Defendant)
Representation:	Counsel: Mr J Johnson, barrister (Prosecutor) Mr K Durant, solicitor (Defendant)   Solicitors: HWL Ebsworth (Prosecutor) Lawhouse (Defendant)
File Number(s):	293143 of 2016
Publication restriction:	No

TABLE OF CONTENTS

Introduction

Mr Edgar's plea of guilty

The sentencing framework

The legislative provisions

The maximum penalty

Aggravating factors

Mitigating subjective factors

Introduction

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

Mr Edgar's character (s 21A(3)(f)).

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

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

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

Deterrence

Introduction

Specific deterrence

General deterrence

The sentencing process

Mr Edgar's financial capacity

Conclusion

Orders

Judgment

Introduction