Thomson v Hawkesbury City Council - [2009] NSWLEC 151

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Thomson v Hawkesbury City Council [2009] NSWLEC 151

PARTIES: George Thomson (Appellant)
Hawkesbury City Council (Respondent)

FILE NUMBER(S): 60015 of 2008

CORAM: Pepper J

KEY ISSUES: APPEAL :- appeal against severity of sentences and costs order - appeal by way of rehearing - fresh evidence on appeal - nature and purpose of award of costs in Local Court - appeal dismissed

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s76A(1), s125(1), s126(1), s127(3)
Crimes (Appeal and Review) Act 2001 s3, s31(1), s37
Crimes (Sentencing Procedure) Act 1999 s3A, s21A, s22, s23
Criminal Procedure Act 1986 s215
Fines Act 1996 s6
Local Government Act 1993 s694
Hawkesbury Local Environment Plan 1989

CASES CITED: Advanced Arbor Service Pty Ltd v Strathfield Municipality Council [2006] NSWLEC 485
Axer Pty Ltd v Environmental Protection Authority (1993) 113 LGERA 357
Bentley v BGP Properties Pty Limited [2006] NSWLEC 34; (2006) 145 LGERA 234
Bentley v Gordon [2005] NSWLEC 695
Byers v Leichhardt Municipal Council [2006] NSWLEC 82
Byron Shire Council v Fletcher [2005] NSWLEC 706; (2005) 143 LGERA 155
Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; (1994) 82 LGERA 21
Campbelltown City Council v Toth [2005] NSWLEC 186
Capral Aluminium Ltd v Workcover Authority of NSW [2000] NSWIRComm 71; (2000) 49 NSWLR 610
Carlino v Leichhardt Municipal Council [2005] NSWLEC 198; (2005) 144 LGERA 235
Choices Manufacturing Pty Ltd v Fairfield City Council [2009] NSWLEC 72
Cooper v Coffs Harbour Council (1997) 97 LGERA 125
Council of Camden v Tax [2004] NSWLEC 448; (2004) 137 LGERA 368
Dodds v R [2009] NSWCCA 191
Environment Protection Authority v Buchanan (No 2) [2009] NSWLEC 31
Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349
Eurobodalla Shire Council v Wheelhouse [2006] NSWLEC 98
Garrett v Freeman (No. 5); Garrett v Port Macquarie Hastings Council; Carter v Port Macquarie Hastings Council [2009] NSWLEC 1; (2009) 164 NSWLEC 287
Garrett v Williams [2006] NSWLEC 785; (2006) 160 LGERA 115
Gittany Constructions Pty Limited v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189
Hawkesbury City Council v Foster and Mushroom Composters Pty Limited (1997) 97 LGERA 12
Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited (No 2) [2009] NSWLEC 6
Hawkesbury City Council v Mushroom Composters Pty Limited (No 2) (1996) 89 LGERA 132
Hawkesbury City Council v Mushroom Composters Pty Ltd (No 3) (1996) 90 LGERA 395
Hoare v The Queen (1989) 167 CLR 348
Johnson v R [2004] HCA 15; (2004) 205 ALR 346
Kari & Ghossayn Pty Ltd v Sutherland Shire Council [2006] NSWLEC 532; (2006) 150 LGERA 231
Latoudis v Casey (1990) 170 CLR 534
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Mill v Queen (1988) 166 CLR 59
Mosman Municipal Council v Menai Excavations Pty Ltd at [2002] NSWLEC 132; (2002) 122 LGERA 89
Newcastle City Council v Pepperwood Ridge Pty Ltd [2004] NSWLEC 218; (2004) 132 LGERA 388
Pearce v The Queen [1998] HCA 57; (1988) 194 CLR 610
Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289
R v A [1999] NSWCCA 61
R v AEM Snr; KEM; MM [2002] NSWCCA 58
R v Bahsa (2003) 138 A Crim R 245
R v Doan [2000] NSWCCA 317; (2000) 50 NSWLR 115; [2000] 115 A Crim R 497
R v Dodd (1991) 57 A Crim R 349
R v Kalache (2000) 11 A Crim R 15
R v Morgan (1993) 70 A Crim R 368
R v Nichols (1991) 57 A Crim R 391
R v Peel [1971] 1 NSWLR 247
R v Rushby [1977] 1 NSWLR 594
R v Wheeler [2000] NSWCCA 34
Sutherland Shire Council v Nustas [2004] NSWLEC 608
Sutherland Shire Council v Turner [2004] NSWLEC 774
Veen v The Queen (1979) 143 CLR 458
Veen v The Queen (No 2) (1988) 164 CLR 465
Willoughby City Council v Revelas (2004) 140 LGERA 348
Zhu v Auburn Council [2009] NSWLEC 97

DATES OF HEARING: 6 May 2009
7 May 2009 (written submissions)
14 May 2009 (written submissions)

DATE OF JUDGMENT:
9 September 2009

LEGAL REPRESENTATIVES: T Howard (Appellant)
Herbert Geer Lawyers (Appellant)
D Jordon (Respondent)
Pikes Lawyers (Respondent)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PEPPER J

9 September 2009

60015 of 2008
George Thomson v Hawkesbury City Council

JUDGMENT

Introduction

1 HER HONOUR: The appellant, Mr George Thomson, appeals against, first, the severity of the sentence, and second, the consequential costs order, imposed by Magistrate Stubbs in proceedings prosecuted by Hawkesbury City Council (“the council”) in the Local Court for contravention of s 76A of the Environmental Planning and Assessment Act 1979 (“the EPAA”), in relation to development undertaken at Lot 12 in DP 623209, known as 540 Grose Vale Road, Grose Vale, New South Wales (“the property”). The appellant pleaded guilty to the charges arising from the contravention.

2 On 10 September 2008, the learned magistrate convicted the appellant as charged and sentenced him to pay fines totalling in the amount of $75,000.

3 On 5 February 2009, her Honour ordered the appellant to pay costs of $21,927.99.

The Charges

4 The details of the offences were described in the court attendance notices of each charge (“the charges”). The description of the offences were as follows:

Description of Offence

The Defendant committed an offence against Subsection 125(1) of the Environment Planning and Assessment Act 1979 (“the Act”), in respect of a contravention of section 76A(1) of the Act in that the Defendant did carry out development on land without development consent first having been obtained from Hawkesbury City Council (“ the Council ”)

the Defendant

Time and Date of Offence

Description of Offence

…

Time and Date of Offence

Description of Offence

…

Time and Date of Offence

Between 18 January 2007 and 5 March 2007 inclusive.

Conduct of the Defendant

Statutory Framework

5 Section 76A(1) of the EPAA provides:

76A Development that needs consent

6 A failure to comply with s 76A(1) of the EPAA is an offence against the Act. In this regard s 125(1) of the EPAA provides:

125 Offences against this Act and the regulations

7 The maximum penalty for an offence against the EPAA is 10,000 penalty units or $1,100,000 for an individual (s 126(1) of the Act). There is a jurisdictional limit on the amount of penalty imposed by the Local Court of 1000 penalty units or $110,000 (s 127(3) of EPAA).

8 Section 37 of the Crimes (Appeal and Review) Act 2001 (“the Review Act”) states:

37 Appeals to be by way of rehearing on the evidence

9 Section 3A of the Crimes (Sentencing Procedure) Act 1999 (“the CSPA”) provides that the purpose of imposing a sentence on an offender includes:

3A Purposes of sentencing

(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.

10 Section 215 of the Criminal Procedure Act 1986 relevantly provides:

215

When costs may be awarded to prosecutor

(a) such professional costs as the court considers just and reasonable,

11 Section 694(1) of the Local Government Act 1993 states:

694 Application of penalties
(1) Any penalty, fine or forfeiture imposed under any Act, or imposed for a contempt of a court order to remedy or restrain a breach of this Act or any other Act, and recovered in proceedings instituted by the council is:

(a) to be paid to the council, and
(b) to be allocated by the council to the council’s consolidated fund.

Factual Circumstances Giving Rise to the Appeal

12 The factual circumstances giving rise to this appeal were largely not in dispute and were contained in the respondent’s statement of facts.

13 The appellant was the partner of the owner of the property and resided with her on the property.

14 The property was zoned Rural 1(c1) until the gazettal of the Hawkesbury Local Environmental Plan 1989 Amendment No 108 on 18 August 2006. Since that date it has been zoned Rural Living under the LEP.

15 The property was at all relevant times subject to the provisions of the tree preservation order.

The first tree charge

16 The council received DA 377/06 on or about 26 May 2006 (“the first DA”). The development application sought consent for the removal of specific trees identified on a hand-drawn plan.

17 Two council officers attended the property and met with the appellant. All three persons inspected the trees designated for removal. The trees were identified with yellow paint and given a number from 1 to 10. The appellant was informed by the council’s arborist that approval would not be given for removal of all of the trees specified. A written development assessment nominating those trees approved for removal was forwarded to the appellant. In each instance where the appellant had challenged the refusal to grant approval to remove a tree the council’s arborist had given the appellant his reasons for refusing. Typically, the reason was because the dead wood or lower branches giving rise to any potential safety issues identified on a particular tree could be remedied by pruning.

18 On 10 July 2006, the council issued a Notice of Determination in relation to the first DA. The Notice identified the trees approved for removal. It was an express condition of consent that “all other trees on the site are to be retained and not removed”.

19 On the same day, the appellant felled seven trees that were to be retained pursuant to the consent. All of the felled trees were covered by the tree preservation order and were not the subject of any applicable exemption. No development consent or permit had been issued which granted consent or permission to remove the trees.

20 The trees were all Australian natives and were native vegetation for the purpose of the LEP.

21 In the opinion of the council’s arborist, each of the trees at the time of his inspection were healthy and gave rise to no safety concerns.

22 This opinion, was, however, disputed by the appellant who submitted that, based on a consultant arborist’s assessment, Mr Laurie Smith from About Trees, four of the seven trees were damaged and constituted a hazard potential as a consequence.

The second tree charge

23 The facts giving rise to the second tree charge were similar to those relating to the first tree charge, save that when the appellant sought development consent for the removal of further trees on 4 October 2006, the application was accompanied by an arborist’s report in respect of those trees.

24 Again council officers came out to inspect the trees and to confer with the appellant. At the time of the inspection, the council’s arborist had with him a copy of the report provided by the appellant’s arborist and read from it. The appellant was once more informed that not all the trees he sought to remove would be permitted to be removed.

25 On 4 January 2007, the council issued its Notice of Determination in relation to the second DA. The Notice identified the trees for removal and condition 3 of the consent stated that:

Approval has been granted to remove the following trees numbered on the approved stamped plans.

…

26 Contrary to condition 3, the appellant either removed, injured or destroyed eight of the trees identified for preservation and another 16 large mature forest gums. Again, all were Australian natives and all were native vegetation for the purpose of the LEP.

27 These trees were felled by a contractor, Re-Gen, by being pushed over with an excavator or earthworks machine. At all relevant times the contractor was operating under the instructions of the appellant.

28 In separate interviews with council officers in early 2007, the appellant made the following statements:

(a) “I am taking things into my own hands”; and

29 On or about 5 March 2007, the appellant cut down with a chainsaw another tree in contravention of condition 3 of the Notice of Determination in relation to the second DA. When questioned about his actions by the council, the appellant stated that, first, he cut down the tree in order to attract the attention of the council after a storm that caused damage to the property, and second, that “no one else around here has trees near their dams. Why can’t I get rid of mine? Whatever happens, they will be going.”

30 Like the first tree charge, each of the removed trees was covered by the tree preservation order and was not the subject of any applicable exemption. Again, no development consent or permit was issued which granted consent or permission to remove the trees.

31 The opinion of the council’s arborist was, at the time of his inspection on 8 November 2006, that each of the felled trees was healthy and gave rise to no safety concerns.

32 This opinion was similarly disputed by the appellant who contended, on the basis of a report from the arborist Mr Smith, that eight of the nine removed trees subject to the tree preservation order were damaged or had severe structural defects that could not be remedied and that 11 of the 16 forest gums had been assessed as being in an advanced state of decline and contained significant structural defects making them unsuitable for retention.

The unauthorised earthworks charge

33 On 3 July 2006, a council officer met with the appellant on the property. The appellant outlined to the officer various earthworks which he proposed to undertake at the property. The officer advised the appellant that a development application would need to be lodged together with appropriate plans. No development application was received by the council.

34 From November 2006 up to and including January 2007, earthworks were carried out at the property by the appellant. These works involved the felling of, and injury to, trees, the clearing of native vegetation and:

(a) the removal of rocks and soil from a gully area in the middle section of the property which was transported to the horse arena area;

(b) the creation of terraces by cutting and filling the landscape in the horse arena area;

(c) extensive landfill works carried out in the horse arena area, including the placement of sandstone; and

35 Council’s records contain no record of any consent being issued for the earthworks as required under the LEP.

36 When the appellant was questioned about the earthworks by council officers on 6 December 2006, he stated that after the disagreement about the first DA, a council officer had told him that he required a contour survey. The appellant stated that he was unwilling to pay for a contour survey because they cost $3000.

Environmental harm

37 The parties agreed that had council’s consent been sought for the removal of the trees the following matters would have required assessment:

(a) the health and structural adequacy of the trees;

(b) the impact of the State Environmental Planning Policy No 44 - Koala Habitat; and
(c) the impact of the removal of the trees on flora and fauna.

38 Similarly, had development consent been sought for the earthworks which were carried out, the following matters would have been the subject of assessment:

(a) the necessity for the imposition of erosion and siltation controls, both permanent and temporary;

(b) the structural stability of the banks of the dam and the horse arena area;

(c) the necessity for site stabilisation works, including a revegetation plan and proposals for the preparation of top soils and the replanting of affected areas;

(d) a consideration of the impact of the above proposals on the gully on the subject land; and

The Sentence Imposed by the Local Court

39 The learned magistrate delivered a lengthy sentencing judgment and fined the appellant a total of $75,000. In her Honour’s judgment she emphasised the following factors:

(a) that the appellant was not a property developer and subjectively considered that the council was frustrating his efforts to remove trees from the property and that it was taking an inordinate length of time to address his concerns in relation to a serious water run off problem on the property;

(b) that the appellant’s conduct did not occur in contumelious disregard for the authority of the council;

(c) that efforts at negotiation with the council had been engaged in by the appellant in an attempt to resolve the outstanding issues he had with it;

(d) that the appellant had expended time and expense in commissioning the aborist reports from Mr Smith;

(e) that there were no strong considerations of specific deterrence at play because it was unlikely that the appellant would take such precipitous action in the future;

(f) that the appellant’s conduct did, however, harm the community by damaging the natural environment;

(g) that the unauthorised works did have the effect of preventing an assessment of the safety of the development and precluded consideration by council of the impact of the development on the neighbours as well as on the flora and fauna;

(h) that the removal of trees was a serious matter;

(i) that the appellant was aware of the conditions of the development consent in relation to the removal of the trees and that development consent was necessary for the performance of the earthworks;

(j) that the appellant had entered a plea of guilty on the first day of the hearing;

(k) that the appellant had control over the subcontractors who performed some of the works resulting in the three charges;

(l) that although there were no character references tendered, the appellant was, the charges aside, a person of good character;

(m) that the appellant paid child support, had an equity in the property in which he lived of approximately $85,000 and earned approximately $43,000 a year employed as a truck driver. Accordingly there were “limited resources available to the defendant” and her Honour noted that “there is no evidence before the court … to put in issue any of the defendant’s submissions in respect of his financial position”;

(n) while the appellant did not display identifiable levels of contrition in relation to the matters that brought him before the Court, the Court accepted that he held a genuine subjective, albeit wrong, sense of his obligations and responsibilities; and

40 The learned magistrate fined the appellant an amount of $20,000 reduced down to $15,000 for the first tree charge, an amount of $25,000 reduced down to $20,000 for the second tree charge and an amount of $40,000 in relation to the earthworks charge. No downward adjustment was made in relation to the fine for the earthworks charge because it was treated as a discrete matter by her Honour.

41 In relation to costs, in making an award against the appellant her Honour had regard to the following factors:

(a) that a plea of guilty was entered by the appellant only on the day the matter commenced for hearing;

(b) that the appellant was a person of limited means who had little, if any, capacity to pay any order for costs given the magnitude of the fines imposed;

(c) that the appellant was not legally represented for the duration of the proceedings;

(d) that there did appear to be some duplication of work which warranted a reduction of the professional costs claimed against the appellant;

(e) that there were complex factual and legal issues involved in the prosecution of the case. The brief of evidence comprised approximately 500 pages and the matter would have warranted briefing counsel; and
(f) that there was no disentitling conduct on the part of the council.

42 The Court was of the view that a 25 per cent discount ought to be applied to the professional costs sought by the council and that due to the limited capacity of the appellant to pay the fine imposed, this warranted a further reduction of 20 per cent. Accordingly, the professional costs claimed constituted the sum of $39,038 less 45 per cent, being $19,019.00, plus disbursements in the sum of $2908.99, amounting to a total award of costs against the appellant of $21,927.99.

Nature of an Appeal Against the Severity of Sentence

43 An appeal against the severity of sentence is made to this Court as of a right under s 31(1) of the Review Act. The appeals are to be dealt with by way of rehearing on the basis of certified transcripts of evidence given in the court below (s 37(1) of the Review Act). This Court may grant leave to adduce new evidence only if satisfied that it is in the interests of justice that it be given (s 37(2) of the Review Act).

44 In Gittany Constructions Pty Limited v Sutherland Shire Council (2006) 145 LGERA 189 Preston CJ, citing Cooper v Coffs Harbour Council (1997) 97 LGERA 125, described the nature of such an appeal as follows (at [21]):

Cooper v Coffs Harbour City Council

Criminal Appeal Act

… an appeal under s 5AA is not restricted to a determination of whether the decision of the Court below was infected with error. It is a rehearing on the evidence given before the trial Court.

Criminal Appeal Act

Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority

de novo

Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority

Evidence

45 The appeal proceeded on:

(a) photographs of the property and of the unlawful works carried out by the appellant;

(b) the court attendance notices for the three charges;

(c) transcripts of the hearing before the learned magistrate on 19 March 2008, 30 May 2008, 10 September 2008 and 12 December 2008;

(d) the costs judgment dated 5 February 2009;

(e) the Local Court file, which contained various arborist reports from Mr Laurie Smith of About Trees and a report commissioned by the appellant from Mr Ralph Williams Consultant Engineering Pty Ltd assessing the impact of the water flowing from Grose Vale Road onto the property;

(f) material relating to the assessment of costs that was before the court below, including an assessment of costs dated 30 May 2008 from Pike Pike & Fenwick for the council and an assessment dated 6 January 2009 from Costs Partners for the appellant; and
(g) subpoenaed and other material relating to the financial circumstances of the appellant.

Application to adduce fresh evidence

46 By way of notice of motion filed 2 March 2009, the appellant sought leave pursuant to s 37(2) of the Review Act to adduce fresh evidence on the appeal. This evidence comprised:

(b) a report of Dr Timothy Watson-Munro dated 24 February 2009; and

47 Under s 37(2) of the Review Act, the Court has a discretion to admit fresh evidence on an appeal if it is of the opinion that it is in the interests of justice that the fresh evidence be admitted (Advanced Arbor Service Pty Ltd v Strathfield Municipality Council [2006] NSWLEC 485 at [34] and Kari & Ghossayn Pty Limited v Sutherland Shire Council (2006) 150 LGERA 231 at [13]).

48 In relation to the testimonial evidence, I declined to grant leave to permit this evidence to be admitted because there was no contrary evidence by the prosecutor that the appellant was not other than of good character and because the evidence was of limited assistance given the paucity of relevant detail contained in the testimonials.

49 In relation to the affidavit of Mr George Thomson affirmed 27 February 2009, I only admitted paragraphs 41-53 of the affidavit. These paragraphs deposed to Mr Thomson’s current financial circumstances and demonstrated that he had very few assets and savings and some debt. In his affidavit Mr Thomson stated that he had not been able to secure finance from Westpac bank and due to the economic downturn his work load had decreased by 30 per cent. Mr Thomson stated that in his view he had “no available means to pay the $75,000 fine and costs … without leaving [him] homeless and destitute.”

50 I declined to admit the remaining paragraphs of the affidavit which dealt primarily with the appellant’s contrition because, notwithstanding that Mr Thomson was unrepresented for part of the hearing in the court below, this evidence could have been adduced before the learned magistrate and Mr Thomson could give no reason whatsoever as to why he did not do so (Kari at [16] and [20]). The transcript evidence revealed that although partly represented in the court below, the appellant was an active participant in the hearing before her Honour, both calling and questioning witnesses.

51 That the appellant now sought to adduce evidence of remorse when he “did not display identifiable levels of contrition in relation to the matters that brought him before the court” below militated against its reception before me. Furthermore, although the respondent did not object to this evidence despite its late service, it nevertheless foreshadowed that it would be necessary to call further evidence in order to meet it. This would have had the effect of prolonging the determination of the appeal by causing it to be adjourned part heard. In all the circumstances, therefore, I determined that it was not in the interests of justice to allow the evidence to be adduced on appeal.

52 In relation to the affidavit of Mr George Thomson affirmed 5 March 2009, I admitted this evidence on the basis that it related to the appellant’s current financial circumstances and it complemented the evidence contained in his affidavit affirmed 27 February 2009 and the evidence that was before the court below. In my view, the admission of this evidence was in the interests of justice.

53 In this affidavit Mr Thomson corrected an answer given to the court below that his income was $43,000 per annum. Based on his 2008 tax return, Mr Thomson’s income was marginally higher at $49,946 per annum.

Oral evidence of Mr Thomson

54 During the course of discussions concerning the admission of Mr Thomson’s affidavit evidence in this Court, Mr Howard, counsel for the appellant, properly and frankly told the Court that his client had not disclosed a significant asset comprising of shares. He therefore sought leave to adduce oral evidence from his client to explain the omission both in this Court and in the court below. In order to give Mr Thomson the opportunity of explaining the circumstances of the omission I granted leave for oral evidence to be given.

55 Mr Thomson stated that the asset had been revealed pursuant to documents produced by Westpac bank in answer to a subpoena issued to that organisation by the respondent. The asset consisted of shares in Hutchison Telecommunications currently valued at approximately $311,000. The reason Mr Thomson had not previously disclosed this asset was because his accountant had told him that the shares did not belong to him but belonged to his self-managed superannuation fund, and therefore, he was not obliged to disclose them to her Honour.

56 Mr Thomson’s explanation did not withstand cross-examination and I found Mr Thomson, insofar as the evidence he gave about his financial position, to be wholly unreliable and it reflected adversely on his credit.

57 To summarise, Mr Thomson claimed to have almost no knowledge of his financial affairs, relying entirely on his accountant. I did not believe his evidence in this regard.

58 As a consequence of Mr Thomson’s oral evidence, Mr Howard conceded on behalf of the appellant that he could no longer maintain the submission that Mr Thomson could not pay the fine imposed on him at first instance. This was unarguably correct in light of the oral evidence given by Mr Thomson before me.

59 In relation to the report of Dr Timothy Watson-Munro dated 24 February 2009, I considered it in the interests of justice to admit the report because it opined as to the likely state of mind of the appellant at the time the offences were committed and because the report was relevant to the subjective factors to be taken into account in determining an appropriate sentence.

Submissions of the Parties

The appellant’s submissions

60 The appellant submitted that the sentence imposed by the Local Court was too severe for the following reasons:

(a) while it was conceded that the contraventions were deliberate, the appellant submitted that they were made in circumstances where the appellant believed that the trees were hazardous and required removal and where the appellant was frustrated by the council’s perceived dilatory conduct in addressing both the removal of the trees and the effect of the stormwater run-off on the property. These were not capricious beliefs and in regard to the tree offences, the appellant relied on reports by Mr Smith which revealed that a significant number of the trees that the appellant had removed had a high failure potential. It was therefore submitted that the appellant had not ignored or flouted the council’s processes but rather, that he had breached the terms of the development consents because of his concern about the condition of the trees;

(b) the appellant held no equity in the property at the time and there was only minimal commercial motivation for his acts in as much as his partner owned a horse business, with which he was involved, and that the tree removal and earthworks had commercial advantages for the business. The appellant submitted that his behaviour was therefore in a different category to those cases where trees had been cut down for purely commercial gain. Accordingly the offences were at the less serious end of the scale;

(c) in relation to the earthworks offence, the appellant submitted that there were drainage problems and the land was subject to erosion and flooding as a result. As a consequence, the state of mind of the appellant at the time these unlawful activities took place was one of concern for the property occasioned by damage due to storm water overflow;

(d) while the appellant conceded that it was not clear what the precise extent of the earthworks were, he asserted that his acts were removed from the worst category because the works were undertaken as a result of a belief or perception that the work needed to be done in order to reduce and/or eliminate flooding issues, and moreover, the works were not undertaken entirely for commercial gain;

(e) in relation to environmental harm:

(i) in respect of the earthworks, the appellant conceded that his actions deprived the council, as the relevant consent authority, of any ability to assess the impact of the works. However, there was no evidence before the Court to suggest that the earthworks had caused actual environmental harm and the appellant invited the Court to infer that some of the earthworks in fact minimised harm to the environment by minimising flooding and erosion; and

(ii) in relation to the tree offences, the appellant submitted that there had been some assessment undertaken in relation to the trees by the council officers who had inspected them prior to their removal. The appellant submitted that because “in the main” the trees were unhealthy the offence was at the lower end of the scale with respect to environmental harm (there being no broad acre and no iconic clearing involved). In the present case all that had occurred was that potentially dangerous trees had been cut down on a rural residential block;

(f) the appellant submitted, based on the evidence of Dr Watson-Munro, that at the time of the commission of the offences he suffered from an adjustment disorder which impaired his judgement to such a level that his ability to appreciate the consequences of his actions had been compromised. The appellant further noted that Dr Watson-Munro reported that the appellant had expressed remorse and guilt in respect of his actions; and
(g) that when regard was had to comparable cases, the fine imposed by the learned magistrate was manifestly high. In this regard, the appellant took the Court to the decision of Newcastle City Council v Pepperwood Ridge Pty Ltd (2004) 132 LGERA 388 at [8] and noted that there a fine of $68,000 had been imposed for the removal of over 110 trees. The appellant submitted that this was significantly higher than the number of trees removed in the present case but had resulted in a lesser fine.

61 The appellant therefore submitted that the fine should be half of that which was imposed.

The respondent’s submissions

62 The respondent’s submission may be summarised as follows:

(a) it rejected the appellant’s submission that no significant environmental harm had taken place. To the contrary, the respondent submitted that substantial environmental harm occasioned by the commission of each offence has resulted. Viewed in the overall context of the size and nature of the property, a large number of trees had been removed and the earthworks were extensive. In this regard the respondent took the Court to a number of photographs in order to demonstrate that the earthworks were significant and that significant environmental harm had occurred. It was submitted by the respondent that this was an aggravating feature under s 21A(2)(g) of the CSPA;

(b) in relation to the earthworks charge, the respondent noted this charge also included the removal of vegetation, including trees, and therefore, when assessing the overall impact of the tree offences this further damage to the flora of the property had to be taken into account;

(c) in relation to the appellant’s state of mind, the respondent noted the concession by the appellant that the contraventions were deliberate. The respondent described the contraventions as conduct that wilfully disregarded and flouted the planning control system. This, the respondent submitted, elevated the offences to the most serious category. This was because there was a need to ensure and maintain that planning controls were obeyed. The respondent submitted that the appropriate remedy, if the appellant was frustrated with the processes of the council, was to appeal by any administrative means available. The respondent noted that the appellant had not waited for an assessment as to the health of the trees by Mr Smith before removing them, relying instead on his own lay assessment as to the worth of the trees;

(d) in relation to the earthworks, the respondent submitted that not all of the earthworks were directed towards minimising the stormwater flooding and erosion as claimed. For example, the typography of the property meant that there was a gully where the house was located thereby obviating the risk of flooding. While the respondent conceded that the southern earthworks could be related to stormwater damage, this was not the case in relation to the terracing on the horse arena area or the northern earthworks, which were primarily undertaken in order to train and agist horses on the property;

(e) that it was important to appreciate that there were three, and not merely one, fines imposed, all of which were within the appropriate range;

(f) that the fines ensured deterrence, both individually and generally;

(g) that only limited use could be made of the sentencing statistics given the small number of samples available; and
(h) that the failure of the appellant to disclose his shareholding could not be underestimated. It was a significant asset and its omission undermined the appellant’s evidence that the fines imposed by the learned magistrate would leave him “destitute and homeless”. The respondent submitted that this had a direct bearing on the credit of the appellant and on the weight that could be attributed to any purported demonstration by the appellant of contrition and remorse.

Consideration

Purposes of sentencing

63 In Pittwater Council v Scahill (2009) 165 LGERA 289 (at [42]-[46]) Preston CJ stated the purpose of sentencing pursuant to s 3A of the CSPA as, in the context of an offence involving the unlawful removal of trees, follows:

42 The sentence of the Court is a public denunciation of the conduct of the offender. The sentence must ensure that the offender is held accountable for his or her actions and is adequately punished or given his or her just desserts.

43 The sentence must deter the offender from committing similar crimes in the future. This is important for an offender such as the defendant who is in business as an arborist and landscaper and accordingly will be called upon in his business to prune, cut down or remove trees and vegetation that might be protected by tree preservation orders, environmental planning instruments or development consents. The sentence of the Court needs to deter the defendant from taking such action other than in accordance with lawful authority.

44 Most importantly, the sentence of the Court needs to operate as a powerful factor in preventing the commission of similar crimes by persons who might be tempted to do so by the prospect that, if they are caught, only light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597. This is particularly so in the context of unlawful development, having regard to the policy considerations articulated in a number of cases including Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89 at [32]-[35]; Sutherland Shire Council v Turner [2004] NSWLEC 774 at [24]; and Carlino v Leichhardt Municipal Council (2005) 144 LGERA 235 at [32]-[34].

45 For environmental offences, the purpose of sentencing of general deterrence is of central importance. Many of the cases in which courts have so stated are set out in the judgment in Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349 at [59], [71]-[80] and Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 at [103]-[106]. Persons will not be deterred from committing environmental offences by nominal fines: Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 at 354; Bentley v BGP Properties Pty Limited ; (2006) 145 LGERA 234 at [139]-[142], [150], [151] and Eurobodalla Shire Council v Wheelhouse [2006] NSWLEC 98 at [17].
46 There is a need for the upholding of the integrity of the system of planning and development control. This system depends on persons taking steps to obey the law by ascertaining when development consent is required and then obtaining development consent before carrying out development: Byron Shire Council v Fletcher (2005) 143 LGERA 155 at [60]-[61]; Cameron v Eurobodalla Shire Council at [72]-[80]; Byers v Leichhardt Municipal Council [2006] NSWLEC 82 at [83], [85]; Gittany Constructions Pty Ltd v Sutherland Shire Council at [104]; and Garrett v Freeman (No. 5) (2009) 164 NSWLEC 287 at [58]. Development must be carried out in accordance with the terms of the development consent obtained: Gittany Constructions Pty Ltd v Sutherland Shire Council at [105].

64 In particular, his Honour said (at [48]) that (emphasis added):

48 … The sentence of courts for an offence against the laws protecting trees and vegetation needs to send a clear message that failure to take such steps to comply with the laws will be visited with significant financial consequences .

Approach to sentencing

65 It is a basic principle of sentencing law that the sentence imposed by the Court for an offence must both reflect and be proportionate to the objective circumstances of the offence and the personal or subjective circumstances of the appellant: Veen v The Queen (1979) 143 CLR 458 at 490 and Veen v The Queen (No 2) (1988) 164 CLR 465 at 472.

Objective circumstances

66 The primary factor to consider in determining sentence is the objective gravity or seriousness of the offence. It fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit insofar as the sentence must not exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances: Veen v The Queen (No 2) at 472, 485-486, 490-491 and 496; Hoare v The Queen (1989) 167 CLR 348 at 354. It fixes the lower limit because allowance for the subjective factors of the case ought not produce a sentence which fails to reflect the objective gravity or seriousness of the offence: R v Dodd (1991) 57 A Crim R 349 at 354; R v Nichols (1991) 57 A Crim R 391 at 395; Garrett v Freeman (No 5) [2009] NSWLEC 1 at [51] and Scahill at [50].

67 In determining the objective gravity or seriousness of the offences, the circumstances of the offences to which the Court may have regard include (see Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 at [163]; Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 at [110], both cited in Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited (No 2) [2009] NSWLEC 6 at [36]-[38]):

(a) the maximum penalty for the offence;

(b) the objective harmfulness of the appellant's actions;

(c) the appellant's state of mind in committing the offence;

(d) the appellant's reasons for committing the offence;

(e) the foreseeability of risk of harm to the environment;

(f) the practical measures to avoid harm to the environment; and
(g) the appellant’s control over the causes of harm to the environment.

68 Section 21A of the CSPA further identifies matters which the Court must take into account when sentencing, including those in aggravation (s 21A(2)) and those in mitigation (s 21A(3)).

the maximum penalty

69 The maximum statutory penalty is of considerable significance in determining the objective gravity of the offence. In Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 it was stated that:

the maximum penalty available for an offence reflects the "public expression" by parliament of the seriousness of the offence ...

70 In Markarian v The Queen (2005) 228 CLR 357 at [31], the High Court unequivocally referred to the need to have regard to the maximum penalty as a legislative yardstick to enable comparison between the worst possible case and that currently before the court.

71 As stated above, the maximum penalty for each offence under the EPAA is $1,100,000. This demonstrates the extreme seriousness with which offences against the EPAA are viewed. Notwithstanding that the Local Court has a jurisdictional limit of $110,000, the maximum penalty for an offence against the EPAA nevertheless remains $1,100,000. In R v Doan (2000) 50 NSWLR 115 at [35], Grove J (with whom Spigelman CJ and Kirby J agreed) stated that a provision enacting a ceiling on the maximum sentence that may be imposed by the Local Court is no more than:

a jurisdictional maximum and not a maximum penalty for any offence triable within that jurisdiction. In other words, where the maximum applicable penalty is lower because the charge has been prosecuted within the limited summary jurisdiction of the Local Court, that Court should impose a penalty reflecting the objective seriousness of the offence, tempered if appropriate by subjective circumstances, taking care only not to exceed the maximum jurisdictional limit.

72 In the context of an offence concerning the removal of trees without development consent, Preston CJ stated in Scahill (at [53]-[55]):

53 A fundamental consideration, of particular relevance to environmental offences, is the degree by which, having regard to the maximum penalties provided by the statutes in question, the offender’s conduct would offend against the legislative objective expressed in the statutory offence: R v Peel [1971] 1 NSWLR 247 at 262.

54 The legislative object expressed in s 125 of the Environment Planning and Assessment Act is that persons should obey the statutory scheme of not carrying out development or action that is forbidden without first applying for and obtaining any necessary development consent. This includes undertaking any required environmental impact assessment as part of the process of applying for the necessary consent.
55 As noted by McClellan J in Camden Council v Tax (2004) 137 LGERA 368 at [28] and [29]:

[28] The necessity for the protection of vegetation in the community is now accepted in virtually every area of the state. Special legislation has been provided in relation to rare species and ecological communities but beyond that legislation, as the Local Environmental Plan in this case illustrates, steps have been taken to ensure that in areas where development may be appropriate, decisions with respect to the grant of development consent are taken after regard is had to the value and significance of the vegetation on any parcel of land. As this Local Environmental Plan makes plain, that protection has been extended even to land which is otherwise identified as suitable for rural or rural-related uses.
[29] Accordingly, in imposing a penalty in this particular case, it is most important to ensure that that penalty sends a message to the general community that before any activity is taken which may cause the demise of any tree development consent must be obtained from the local council. Unless that message is sent and received by the community, there will be difficulties in ensuring that the objective of carefully considering the necessity to retain vegetation in many areas, but particularly rural areas, is achieved.

objective harmfulness of the appellant’s actions

73 Given the circumstances of this case, it cannot be suggested that the acts of the appellant were trivial or that the removal of the trees and carrying out of the earthworks were anything other than deliberate. Accordingly, the offences may be viewed objectively as more serious (Bentley v Gordon [2005] NSWLEC 695 at [125]-[126]).

74 Although there is evidence in the About Trees reports that some of the felled trees were potentially hazardous, the evidence of the council was that at the time of its inspections by the council’s aborists the removed trees had been found to be healthy and had given rise to no safety concerns. Even if I were to give the appellant the benefit of the doubt in this regard, which I am disinclined to do, this evidence would not, however, establish that consent to remove the trees would have been given by the council rather than some less invasive measure being imposed, such as the pruning or removal of the dead or damaged branches or the ongoing management of the trees.

75 The trees were all native trees endemic to the area and contributing to its wooded environment. By removing a large number of them in the manner in which he did, the appellant denied the council the opportunity of making a full assessment of the environmental impact of their removal on the local flora and fauna.

76 As was observed in Scahill (at [56]), the appellant’s failure here:

56 … to apply for and to obtain development consent prior to cutting down the trees undermined this legislative objective. The process of making an application would have enabled a careful evaluation of the trees; their value, including their ecological and amenity value in the landscape; their health; and any potential risk posed by them to life or property. In so far as the health of the trees were to be put in question, less intrusive measures, such as sensitive pruning or damaged branches, careful removal of broken branches suspended in the canopy and ongoing management of the health of the trees, could have been considered as alternatives to the cutting down and removal of the trees. The precipitous action of the defendant in cutting down trees denied the opportunity to evaluate the trees and the alternatives.

77 Further, in carrying out the earthworks native bushland and vegetation was also removed by the appellant thereby exacerbating the impact of the unlawful activities on the environment.

78 Similarly, in relation to the earthworks the council was denied the opportunity of imposing conditions pursuant to an assessment of the development in respect of, for example, erosion and siltation, the structural stability of the banks of the dams and horse arena area, revegetation and the general impact of the development on the flora and fauna. The council was also denied the opportunity to seek the views of neighbours who were affected by the clearing works.

79 I therefore reject the appellant’s submission that only limited environmental damage occurred as a result of the unlawful activities. I find the commission of the offences caused actual environmental harm of at least medium seriousness. However, I do not consider harm substantial enough to be an aggravating factor to be taken into account in determining the appropriate sentence (s 21A(2)(g) of the CSPA).

the appellant’s state of mind

80 An offence against s 125(1) of the EPAA is a strict liability offence and therefore mens rea is not an element of the offence: Scahill at [69]. Nevertheless the state of mind of an offender at the time of the offence is relevant insofar as it can have the effect of increasing or decreasing the seriousness of the crime. Thus a strict liability offence that is committed intentionally is objectively more serious than one which is committed unintentionally (Scahill at [123]).

81 In the present case the offences were carried out deliberately and were premeditated inasmuch as the appellant knew that the council was opposed to the unauthorised removal of any trees, and moreover, the appellant knew that he required development consent to remove the trees and to carry out the earthworks.

82 I accept that the appellant took some steps to have the trees lawfully removed insofar as he had sought development consent from the council. However, having received only partial consent the appellant proceeded to take matters into his own hands. The fact that he did not wait for an assessment from his own arborist before removing the trees, relying instead on his own skill and judgement as to the health of the trees, only highlighted, in my view, his disregard for the regulatory process.

83 The appellant’s attitude in relation to the removal of the trees can be summarised by his statement to council officers that “I am taking things into my own hands”. A not dissimilar attitude was demonstrated by the appellant in relation to the earthworks by refusing to pay for a contour survey necessary to obtain consent for the earthworks and proceeding with the work himself.

84 In these circumstances, it is tolerably clear that the appellant chose to remove the trees and to carry out the earthworks in full knowledge that his conduct was not sanctioned by the council and was contrary to the council’s processes. It is in this sense that I accept the respondent’s submissions that the appellant flouted the authority of the council.

the appellant’s reasons for committing the offence

85 In Scahill Preston CJ stated that (at [80]-[81]):

80 The criminality involved in the commission of an offence is to be measured not only by the seriousness of what actually occurred, but also by reference to the reasons of its occurrence: Axer Pty Ltd v Environmental Protection Authority (1993) 113 LGERA 357 at 366; Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 at [237]; Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242 at [140] and Garrett v Williams [2006] NSWLEC 785; (2006) 160 LGERA 115 at [120].

81 The carrying out of the offence to make a profit, or to save incurring an expense, or to avoid the cost of obtaining and implementing a statutory permission such as a development consent or environment protection licence increases the seriousness of the crime. Offenders should not profit from crime: Garrett v Williams [2006] NSWLEC 785; (2006) 160 LGERA 115 at [121] and cases therein stated.

86 Whilst I accept that it was a consideration in the mind of the appellant that some of the trees removed were unhealthy and unsafe and that there was a storm water runoff issue on the property, I nevertheless do not accept that this was his only motivating factor.

87 I find that there was a commercial imperative present insofar as the removal of the trees and the earthworks were likely to have advantageous financial consequences for the property and the use to which it was being put, namely, for the agisting, riding and/or training of horses. I infer from the evidence that the terracing was undertaken to convert a large section of the site to a horse arena.

88 While the appellant was not the owner of the property (Cameron v Eurobodalla Shire Council [2006] 160 LGERA 115 at [121]), he was nevertheless in a relationship with the owner of the property at all material times, and therefore, he indirectly yielded a benefit from the commission of the offences.

89 It is also apparent from the evidence that the appellant committed the offences for reasons of practicality and expediency because he did not want to wait for, obtain any further, or apply for the necessary council approvals.

90 The appellant’s attitude in this regard increases the objective gravity of the offences.

91 However, mitigating this finding is the evidence of Dr Watson-Munro that at the time of the commission of the offences the appellant was suffering from an adjustment disorder which may have impaired his judgement. I have therefore taken into account the unchallenged opinion of Dr Watson-Munro in assessing the objective gravity of the offences.

forseeability of risk of harm

92 It was not seriously suggested that the appellant could not have reasonably foreseen that the offences committed would cause harm to the environment.

practical measures and the appellant’s control over the activities

93 Likewise it was not suggested that the appellant did not have control over the work carried out on the site and thus could not have taken practical measures to avoid the harm to the environment. The evidence discloses that at all times the appellant had control over the works that gave rise to the offences.

94 In order to avoid the resultant environmental harm, the appellant should have refrained from removing the trees and from carrying out the earthworks unless and until the appropriate development consents had been obtained by him.

Conclusion on objective circumstances

95 Having regard to the environmental harm caused by the unlawful activities, the fact that the offences and their consequential environmental harm were foreseen, the fact that the conduct was deliberate and committed by the appellant, at least in part for reasons of expediency and commercial gain, the offences are considered to be of medium objective gravity.

96 The offence in relation to the earthworks is, however, in my view, objectively slightly more serious than the tree offences having regard to the magnitude and scope of the works. Accordingly, a proportionate sentence for this offence ought to be marginally higher than for the two tree offences to reflect this extra degree of seriousness.

Subjective circumstances of the appellant

97 A proportionate sentence requires the Court to take into account any personal or mitigating factors present: Gittany at [144] and the authorities cited thereat.

98 The subjective circumstances of the appellant to be considered include:

(a) any prior criminal record;

(b) the plea of guilty;

(c) any contrition and remorse;

(d) any cooperation with regulatory authorities;

(e) any extra curial punishment of the appellant; and
(f) the financial means of the appellant.

no prior convictions

99 The appellant has no prior convictions for any environmental offences (see s 21A(3)(e) of the CSPA and Gittany at [146]).

prior good character

100 I accept that the appellant is a person of prior good character (see s 21A(3)(f) of the CSPA).

plea of guilty

101 The appellant pleaded guilty to the offences, however, he did not do so until the first day of the hearing before the learned magistrate. As a consequence, the utilitarian value of the plea was diminished. Accordingly, the appellant is entitled to a discount for his plea of guilty (see ss 21A(3)(k) and 22 of the CSPA) but only at the lower end of the range for his entry of that plea: see Gittany at [147]-[153]. In the circumstances a discount of no more than 10-15 per cent is warranted.

contrition and remorse

102 The only evidence before the Court as to the contrition and remorse of the appellant is that contained in the report of Dr Watson-Munro. Given its indirect nature it is, in my view, of limited weight.

103 The appellant has otherwise not expressed contrition or remorse for his unlawful behaviour, although he has arguably, in proffering the agreed statement of facts before this Court (but not by merely pleading guilty: see Cameron v Eurobodalla at [93]), accepted some responsibility for his actions and has at least acknowledged that some harm has been caused by his conduct (s 21A(3)(i) of the CSPA).

104 Notwithstanding the absence of any direct evidence of contrition and remorse, I am sufficiently confident that the appellant is unlikely to re-offend in the future, particularly given the medical evidence of Dr Watson-Munro that he was suffering from impaired judgement at the time (s 21A(3)(g) of the CSPA).

cooperation with the regulatory authority

105 After the commission of all three offences the appellant cooperated with the council (ss 21A(3)(m) and 23(1) of the CSPA).

extra curial punishment

106 This factor is not relevant.

capacity to pay fines

107 Turning to the financial position of the appellant, whilst there was evidence initially put before the Court as to the appellant’s financial impecuniosity (see s 6 of the Fines Act 1996) this was wholly undermined by the oral evidence of the appellant. As a consequence, the submission that he did not have the capacity to pay the fine imposed by the court below was properly withdrawn by him.

108 The submission that the appellant was not a person of substantial financial means remains, however, and I take this into account (Environment Protection Authority v Buchanan (No 2) [2009] NSWLEC 31 at [65]-[66]), although in light of the conclusion I have formed about the reliability of the appellant’s evidence in this regard I do so guardedly.

conclusion as to subjective circumstances

109 The subjective circumstances of the appellant mitigate, albeit to a somewhat limited extent, the sentence that ought be imposed for each offence.

Consistency in sentencing

110 A relevant consideration in sentencing is the ascertainment of the existence of a general pattern of sentencing by the courts for offences such as the offence in question (Gittany [179]-[183]).

111 The proper approach is for the Court to look at (Gittany at [182]):

182 … “whether the sentence is within the range appropriate to the gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range”: R v Morgan (1993) 70 A Crim R 368 at 371 and Capral Aluminium Ltd v Workcover Authority of NSW (2000) 49 NSWLR 610 at 641.

112 In the present case, in relation to the tree offences the range extends from $10,000 in Cameron v Eurobodalla for the cutting down of three trees to a penalty of $68,000 for the underscrubbing and removal of between 110 and 164 dead, dying and living trees on a potential development site (Newcastle City Council v Pepperwood Ridge Pty Ltd (2004) 132 LGERA 388). In the present case a total of 31 trees were removed by the appellant (seven trees in relation to the first tree offence and 24 for the second offence, including the 16 large mature forest gums).

113 The statistical information put forward by the appellant demonstrated that the fines imposed by the learned magistrate in relation to each offence were within the appropriate range, but as the respondent correctly acknowledged (Dodds v R [2009] NSWCCA 191 at [4]), the statistics were of limited utility given their small sample.

Appropriate penalty for each individual offence

114 In Gittany the Court stated the following applicable principles in relation to deterrence as a component of an appropriate penalty for the offences (at [188]-[190] and [192]):

188 In fixing the appropriate punishment for the offences, the Court needs to consider the purposes of sentences relevant to the offences in this case.

189 There is a need to ensure that the appellant is made accountable for its actions and is adequately punished for the offences it has committed. This required the Court to ensure that the punishment for each offence adequately reflects the objective seriousness of the offences, whilst also taking account of the subjective circumstances of the appellant.

190 There is a need to deter specifically the appellant from repeating the conduct that resulted in the commission of the offences, when the appellant carries out development in the future. The appellant needs to be told, by the Court’s sentence, that breaches of the EPA Act, including by failing to carry out development consent, will be visited with significant financial consequences.

…

192 To achieve general deterrence, courts need to impose a penalty that not only acts as a warning to others but also makes it worthwhile that the cost of taking precautions to avoid committing the offence (such as by obtaining and complying with development consents be undertaken): Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359-360; Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [139]-[141], [148]-[157].

115 That one of the purposes of a court in imposing a sentence is to prevent crime by deterring the offender and other persons from committing similar offences is enshrined in s 3A(b) of the CSPA.

116 While in the present case there is a need to specifically deter the appellant from repeating the conduct that resulted in the commission of the offences if the appellant carries out development in the future, I accept the submission of the appellant that only minimal specific deterrence is warranted in the circumstances of the present appeal.

117 There is, however, a need to ensure general deterrence in relation to other persons who may be tempted to engage in the removal of trees and to undertake excavation and earthmoving without the necessary approvals. As was recently stated by Sheahan J in Choices Manufacturing Pty Ltd v Fairfield City Council [2009] NSWLEC 72 at [21] “the public needs to be reminded that the planning regime is in place for good public purposes, and must be obeyed.”

118 Taking into account these purposes of sentencing, as well as the objective circumstances of the commission of each of the offences and the subjective circumstances of the appellant, I would fix the appropriate sentence for the two tree offences as a fine of $15,000 for the first tree offence and a fine of $35,000 for the second tree offence. I consider a fine of $40,000 in relation to the earthworks to be appropriate.

Totality principle

119 In Gittany the Court described this principle and its application as (at [196] and [200]):

196 The totality principle is a principle of sentencing which must be applied when sentencing an offender who has committed more than one offence. The court should consider questions of cumulation or concurrence as well as questions of totality. When reviewing the aggregate sentence, the Court must consider whether it is “just and appropriate” and reflects the total criminality before the court: see Mill v Queen (1988) 166 CLR 59 at 62-63; Pearce v The Queen (1988) 194 CLR 610 at 624 [49]; R v Kalache (2000) 11 A Crim R 15 at [110], [180]; R v AEM Snr; KEM; MM [2002] NSWCCA 58 (13 March 2002) at [70]; and R v Bahsa (2003) 138 A Crim R 245 at [62], [63].

R v A

Pearce v The Queen

R v Wheeler

R v AEM Snr; KEM; MM

120 However, the Chief Judge went on to state that (at [199]):

199 In determining an appropriate aggregate sentence, the Court must consider the need to uphold public confidence in the administration of justice. If sentences are reduced substantially, offenders may view that they can escape punishment for successive deliberate discrete offences: R v Wheeler [2000] NSWCCA 34 (16 February 2000) at [36]-[37].

121 It was submitted by the parties that the totality principle should at least apply in relation to the tree offences given that, while there were two offences, there was a single course of conduct. I agree.

122 In this case, a cumulative aggregate sentence of $90,000 would exceed what is appropriate in all the circumstances. This is particularly so when the two tree offences were, as the learned magistrate described, part of an ongoing pattern of conduct. Accordingly, I would reduce the aggregate penalty of the trees offence by $10,000 in the following manner: $15,000 for the first tree offence reduced to $10,000 and $35,000 for the second tree offence reduced down to $30,000.

123 Any downward adjustment to be made for the earthworks offence which constituted a separate and distinct offence ought, in my view, to be relatively minor. There was, to put it another way, no ‘commonality’ between the tree offences and the earthworks offence (Johnson v R [2004] HCA 15; (2004) 205 ALR 346 at [33] cited in Zhu v Auburn Council [2009] NSWLEC 97 at [33]). In applying the totality principle I therefore adjust the earthworks fine downward by $5000 to $35,000.

124 Moreover, I accept the submission of the respondent that to reduce the sentences any further would cause the total sentence to be disproportionate to the objective gravity of the offence. It “would fail to reflect the total criminality of the appellant’s conduct. It would also undermine public confidence in the administration of criminal justice by failing to effectively punish a person who commits a discrete offence” (Gittany at [206]).

Appropriate order to dispose of appeal on sentencing

125 Considering the matter afresh by way of rehearing, I consider that the appropriate sentence for each offence should be in the amount of $40,000 for the two tree clearing offences ($10,000 for the first tree offence and $30,000 for the second) and the amount of $35,000 for the earthworks offence. These sentences are individually within the range of appropriate penalties given the objective circumstances of the offences and the subjective circumstances of the appellant and cumulatively reflect the total criminality involved in the commission of the offences.

126 Albeit differently configured, the total amount of the sentences is the same as that imposed by the court below. This is sufficient to dispose of the appeal on sentence.

Appeal on Costs

127 The appellant also appealed the award of costs imposed by the learned magistrate.

128 The Court has the power on appeal to set aside and/or vary the costs order made by the learned magistrate (see the definition of “sentence” in s 3 of the Review Act which includes “any order for costs made by a local court”).

129 The Court may determine the appeal by setting aside the costs order, varying the costs order or dismissing the appeal (s 39(2) of the Review Act. The Court’s jurisdiction to vary the costs order is, however, restricted to the powers available to the Local Court at the time the order was imposed (s 71(1) of the Review Act). Therefore, pursuant to s 215(1) of the Criminal Procedure Act 1986, the Court must determine what costs are just and reasonable.

Submissions of appellant

130 The appellant does not challenge the learned magistrate’s reasons for concluding that it was just and reasonable to award costs in the sum of $21,927.99. Rather the appellant submitted that the costs award should be set aside or reduced because the respondent receives the fine monies pursuant to s 694(1) of the Local Government Act 1993 and they are therefore allocated to the council’s consolidated fund, and to this extent, the receipt of the monies therefore has the effect of indemnifying the council for its professional costs incurred in the court below (citing by analogy the obiter remarks of Pearlman J in Hawkesbury City Council v Mushroom Composters Pty Ltd (No 3) (1996) 90 LGERA 395 at 397).

131 Thus, the appellant submits, to further award cost to the council as the learned magistrate did, is to either enrich the council at the expense of the appellant or to impose a punishment on the appellant, neither of which are just and reasonable and both of which offend the principle that the purpose of a costs order is to indemnify or compensate the person in whose favour a judgment has been made (Latoudis v Casey (1990) 170 CLR 534 at 566).

132 The payment of a substantial fine alone, the appellant contends, is sufficient to indemnify the council for the costs it incurred in prosecuting the proceedings in the court below, particularly where, as in the present case, the fine equals or exceeds the amount of professional costs incurred by the respondent in those proceedings.

Respondent’s submissions

133 The respondent submitted in reply that:

(a) first, an award of costs serves an entirely different purpose to the imposition of a fine and the two ought not be conflated;

(b) second, the intent behind s 694 of the Local Government Act is to provide incentives to councils to regulate and prosecute unlawful conduct which, in the present context, offends environmental and planning laws. The provision is a vehicle for councils to obtain the necessary resources to engage in this regulatory activity. This activity extends beyond the narrow compass of the provision of legal services and includes the resourcing of investigations and compliance programs which may not be amenable to compensation by an order for costs (see Hawkesbury City Council v Foster and Mushroom Composters Pty Limited (1997) 97 LGERA 12 at 16 per Mason P);

(c) third, an award of costs is not comparable to the receipt of fine monies under s 694 because the latter provision is not analogous to a fine paid to a common informer under s 5(3) of the Fines and Penalties Act 1901 (now repealed and replaced by s 122 of the Fines Act 1996), rather it is “designed to make up for shortfalls in costs agreements that may be reached at the conclusion of proceedings”: Hawkesbury City Council v Mushroom Composters Pty Limited (No 2 ) (1996) 89 LGERA 132 at 137 (and see Hawkesbury City Council v Mushroom Composters Pty Limited (No 3) (1996) 90 LGERA 395 at 397 quoted with approval on appeal by Meagher JA at Hawkesbury City Council v Foster and Mushroom Composters Pty Limited (1997) 97 LGERA 12 at 22); and
(d) fourth, the appellant’s submissions are not supported by authority and are contrary to the weight of established practice in this Court of costs being awarded in addition to the imposition of a fine, which the Court has expressly recognised is payable to a council pursuant to s 694 of the Local Government Act ( Cameron v Eurobodalla at [105]; Eurobodalla Shire Council v Wheelhouse [2006] NSWLEC 98 at [19]-[21]; Campbelltown City Council v Toth [2005] NSWLEC 186 at [15] and Willoughby City Council v Revelas (2004) 140 LGERA 348 at [105]).

Consideration

134 Merely because an argument put forward by a party to proceedings is inconsistent with the established practice of the Court will not of itself be sufficient to dispense with the contention. In the present case, however, I accept and adopt the submissions put by Mr Jordan for the council generally on the costs issues.

135 I would only add that, even if I were to accept the submissions of the appellant in relation to s 694 of the Local Government Act, at their highest they would amount no more than a factor to be considered by me in the exercise of my discretion under s 251(1) of the Criminal Procedure Act 1986. They are not a complete answer to the appeal on costs.

136 Therefore, there being no challenge to quantum of costs awarded by the learned magistrate – which I consider to be just and reasonable in any event having regard to the evidence on costs before me (my reasoning in this regard being similar to that of the learned magistrate) – the appeal against the costs order must be dismissed.

Orders

137 The Court orders are therefore:

1 the appeal is dismissed;

3 all exhibits are to be returned except for exhibit nine (the subpoenaed documents).

Citations

Thomson v Hawkesbury City Council [2009] NSWLEC 151

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CITATION:	Thomson v Hawkesbury City Council [2009] NSWLEC 151
PARTIES:	George Thomson (Appellant) Hawkesbury City Council (Respondent)
FILE NUMBER(S):	60015 of 2008
CORAM:	Pepper J
KEY ISSUES:	APPEAL :- appeal against severity of sentences and costs order - appeal by way of rehearing - fresh evidence on appeal - nature and purpose of award of costs in Local Court - appeal dismissed
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s76A(1), s125(1), s126(1), s127(3) Crimes (Appeal and Review) Act 2001 s3, s31(1), s37 Crimes (Sentencing Procedure) Act 1999 s3A, s21A, s22, s23 Criminal Procedure Act 1986 s215 Fines Act 1996 s6 Local Government Act 1993 s694 Hawkesbury Local Environment Plan 1989
CASES CITED:	Advanced Arbor Service Pty Ltd v Strathfield Municipality Council [2006] NSWLEC 485 Axer Pty Ltd v Environmental Protection Authority (1993) 113 LGERA 357 Bentley v BGP Properties Pty Limited [2006] NSWLEC 34; (2006) 145 LGERA 234 Bentley v Gordon [2005] NSWLEC 695 Byers v Leichhardt Municipal Council [2006] NSWLEC 82 Byron Shire Council v Fletcher [2005] NSWLEC 706; (2005) 143 LGERA 155 Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; (1994) 82 LGERA 21 Campbelltown City Council v Toth [2005] NSWLEC 186 Capral Aluminium Ltd v Workcover Authority of NSW [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Carlino v Leichhardt Municipal Council [2005] NSWLEC 198; (2005) 144 LGERA 235 Choices Manufacturing Pty Ltd v Fairfield City Council [2009] NSWLEC 72 Cooper v Coffs Harbour Council (1997) 97 LGERA 125 Council of Camden v Tax [2004] NSWLEC 448; (2004) 137 LGERA 368 Dodds v R [2009] NSWCCA 191 Environment Protection Authority v Buchanan (No 2) [2009] NSWLEC 31 Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 Eurobodalla Shire Council v Wheelhouse [2006] NSWLEC 98 Garrett v Freeman (No. 5); Garrett v Port Macquarie Hastings Council; Carter v Port Macquarie Hastings Council [2009] NSWLEC 1; (2009) 164 NSWLEC 287 Garrett v Williams [2006] NSWLEC 785; (2006) 160 LGERA 115 Gittany Constructions Pty Limited v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Hawkesbury City Council v Foster and Mushroom Composters Pty Limited (1997) 97 LGERA 12 Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited (No 2) [2009] NSWLEC 6 Hawkesbury City Council v Mushroom Composters Pty Limited (No 2) (1996) 89 LGERA 132 Hawkesbury City Council v Mushroom Composters Pty Ltd (No 3) (1996) 90 LGERA 395 Hoare v The Queen (1989) 167 CLR 348 Johnson v R [2004] HCA 15; (2004) 205 ALR 346 Kari & Ghossayn Pty Ltd v Sutherland Shire Council [2006] NSWLEC 532; (2006) 150 LGERA 231 Latoudis v Casey (1990) 170 CLR 534 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Mill v Queen (1988) 166 CLR 59 Mosman Municipal Council v Menai Excavations Pty Ltd at [2002] NSWLEC 132; (2002) 122 LGERA 89 Newcastle City Council v Pepperwood Ridge Pty Ltd [2004] NSWLEC 218; (2004) 132 LGERA 388 Pearce v The Queen [1998] HCA 57; (1988) 194 CLR 610 Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 R v A [1999] NSWCCA 61 R v AEM Snr; KEM; MM [2002] NSWCCA 58 R v Bahsa (2003) 138 A Crim R 245 R v Doan [2000] NSWCCA 317; (2000) 50 NSWLR 115; [2000] 115 A Crim R 497 R v Dodd (1991) 57 A Crim R 349 R v Kalache (2000) 11 A Crim R 15 R v Morgan (1993) 70 A Crim R 368 R v Nichols (1991) 57 A Crim R 391 R v Peel [1971] 1 NSWLR 247 R v Rushby [1977] 1 NSWLR 594 R v Wheeler [2000] NSWCCA 34 Sutherland Shire Council v Nustas [2004] NSWLEC 608 Sutherland Shire Council v Turner [2004] NSWLEC 774 Veen v The Queen (1979) 143 CLR 458 Veen v The Queen (No 2) (1988) 164 CLR 465 Willoughby City Council v Revelas (2004) 140 LGERA 348 Zhu v Auburn Council [2009] NSWLEC 97
DATES OF HEARING:	6 May 2009 7 May 2009 (written submissions) 14 May 2009 (written submissions)
DATE OF JUDGMENT:	9 September 2009
LEGAL REPRESENTATIVES:	T Howard (Appellant) Herbert Geer Lawyers (Appellant) D Jordon (Respondent) Pikes Lawyers (Respondent)