Willoughby City Council v Rahmani

Land and Environment Court

New South Wales

Medium Neutral Citation:	Willoughby City Council v Rahmani [2017] NSWLEC 166
Hearing dates:	29 November 2017
Date of orders:	06 December 2017
Decision date:	06 December 2017
Jurisdiction:	Class 5
Before:	Moore J
Decision:	See orders at [64].
Catchwords:	SENTENCE - prosecution for removal of trees contrary to requirement of development consent - early plea of guilty - trees were three mature specimens with long Safe Useful Life Expectancies - trees were part of a critically endangered ecological community - removal negligent but not reckless - consideration of Defendant’s subjective circumstances including agreement to order requiring planting of two replacement trees - appropriate starting penalty $90,000 - consideration of Defendant’s capacity to pay penalty - no basis to reduce penalty because of Defendant’s financial circumstances - Defendant agrees to pay Prosecutor’s costs in an agreed sum - discount of 33% appropriate to reflect early guilty plea and Defendant’s subjective circumstances - Defendant fined $60,000.
Legislation Cited:	Crimes Sentencing Procedure Act 1999, ss 21A and 22 Environmental Offences and Penalties Act 1989 Environmental Planning and Assessment Act 1979, ss 80A(1), 125(1) and 125B Environmental Planning and Assessment Amendment Act 2014 Interpretation Act 1987, s 34(2)(f) Protection of the Environment Operations Act 1997 Rural Fires Act 1997, Pt 4, Div 9 Threatened Species Conservation Act 1995
Cases Cited:	Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Chief Executive, Office of Environment and Heritage v Ausgrid (2013) 199 LGERA 1; [2013] NSWLEC 51 Council of Camden v Poyntz, John [2007] NSWLEC 439 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Mosman Municipal Council v Menai Excavations Pty Limited (2002) 122 LGERA 89; [2002] NSWLEC 132 Pittwater Council v Scahill (2009) 165 LGERA 289; [2009] NSWLEC 12 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 383 Veen v The Queen (No 2) 164 CLR 465; [1988] HCA 14
Category:	Sentence
Parties:	Willoughby City Council (Prosecutor) Parviz Rahmani (Defendant)
Representation:	Counsel: Mr D Beaufils, barrister (Prosecutor) Ms N Hammond, barrister (Defendant)   Solicitors: Wilshire Webb Staunton Beattie (Prosecutor) Robert Napoli & Co (Defendant)
File Number(s):	178693 of 2017
Publication restriction:	No

TABLE OF CONTENTS

Introduction

The trees which were removed

The maximum penalty for the offence

Placing the offending conduct in a range of seriousness

Introduction

The 2015 amendments to the EP&A Act

The statutory framework

The Statement of Agreed Facts

Mr Rahmani's guilty plea

Mr Rahmani's subjective position

Introduction

Potential aggravating factors

Environmental harm

Mr Rahmani’s belief that the 10/50 Rule permitted removal of the trees

Mitigating factors

No financial advantage

Prior convictions

Good character

Specific deterrence for Mr Rahmani

Contrition and remorse

General deterrence

Mr Rahmani’s capacity to pay a fine

Determining an appropriate penalty

Discount for guilty plea and Mr Rahmani’s subjective factors

Orders

Annexure A

Judgment

Introduction

1. Mr Parviz Rahmani is a trained architect and a licensed builder. He has not, in recent years, practised as an…