City of Parramatta Council v Sydney Trees Excavation and Demolition Pty Ltd [2021] NSWLEC 71
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Land and Environment Court
New South Wales
Medium Neutral Citation: City of Parramatta Council v Sydney Trees Excavation and Demolition Pty Ltd [2021] NSWLEC 71
Hearing dates: 28 June 2021
Date of orders: 07 July 2021
Decision date: 07 July 2021
Jurisdiction: Class 5
Before: Pepper J
Decision: See orders at [158].
Catchwords: ENVIRONMENTAL OFFENCES: defendant convicted of three offences of breaching the Environmental Planning and Assessment Act 1979 – guilty pleas – sentencing principles – extent of environmental harm caused by the commission of the offences – state of mind of offender at the time of the commission of the offences – objective seriousness of the commission of the tree removal offences moderate – objective seriousness of the commission of the tree protection offence low – no prior convictions – remorse and contrition demonstrated – specific and general deterrence warranted – application of parity principle by analogy – comparable cases.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A(2), 21A(3)
Criminal Procedure Act 1986, ss 257B, 257G
Environmental Planning and Assessment Act 1979, ss 1.3, 4.2(1), 4.53(1), 4.53(4), 9.50(3A), 9.51, 9.52(3), 9.53(1), 125(1)
Fines Act 1966, s 6
Hornsby Local Environmental Plan 2013, cls 1.2(2), 5.10, Sch 5 Pt 2
Cases Cited: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Bentley v BGP Properties Pty Limited [2006] NSWLEC 34; (2006) 145 LGERA 234
Browning v R [2015] NSWCCA 147
Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Chahoud v Penrith City Council [2020] NSWLEC 167
Chief Executive of the Office of Environment and Heritage, Department of Premier and Cabinet v Turnbull [2014] NSWLEC 150
Chief Executive, Office of Environment and Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109
Chief Office of Environment and Heritage v Rummery [2012] NSWLEC 271; (2012) 192 LGERA 314
City of Parramatta Council v Grand Epping Pty Ltd [2021] NSWLEC 70
Director-General, Department of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110
Environment Protection Authority v Baida Poultry Pty Ltd [2008] NSWLEC 280; (2008) 163 LGERA 71
Environment Protection Authority v Barnes [2006] NSWCCA 246
Environment Protection Authority v Crown in the Right of New South Wales (Office of Environment and Heritage) [2019] NSWLEC 66
Environment Protection Authority v GrainCorp Operations Limited [2019] NSWLEC 143
Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103; (2014) 206 LGERA 239
Environment Protection Authority v Rands [2019] NSWLEC 23
Environment Protection Authority v Sam Abbas (also known as Osama Abbas) [2021] NSWLEC 57
Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100
Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 4
Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2006) 148 LGERA 299
Georges River Council v WK Strong Pty Limited; Georges River Council v Awada [2019] NSWLEC 97
Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189
Gore v The Queen [2010] NSWCCA 330; 208 A Crim R 353
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Harris v Harrison [2014] NSWCCA 84; (2014) 86 NSWLR 422
Henderson v R [2012] NSWCCA 65
Hunters Hill Council v Carter [2018] NSWLEC 84
Hunters Hill Council v Gary Johnston [2013] NSWLEC 89
Hunters Hill Council v Liu [2018] NSWLEC 108
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Jones v R [2010] HCA 45; (2010) 242 CLR 520
Ku-ring-gai Council v Edgar [2017] NSWLEC 49
Le v R [2019] NSWCCA 181
Liverpool City Council v Leppington Pastoral Co Pty [2010] NSWLEC 170
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89
Mouawad v The Hills Shire Council [2013] NSWLEC 165; (2013) 199 LGERA 28
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Pesic v Sutherland Shire Council [2019] NSWLEC 38
Pham v R [2015] HCA 39; (2015) 256 CLR 550
Pittwater v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289
Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253
R v Crombie [1999] NSWCCA 297
R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
R v Doan [2000] NSWCCA 317; 50 NSWLR 115
R v Dodd (1991) 57 A Crim R 349
R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267
R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159
R v Nichols (1991) 57 A Crim R 391
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Oliver (1980) 7 A Crim R 174
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
R v Visconti [1982] 2 NSWLR 104
R v Wheeler [2000] NSWCCA 34
R v Wickham [2004] NSWCCA 193
Secretary, Department of Planning and Environment v Boggabri Coal Pty Limited [2014] NSWLEC 154
Veen (No 2) and Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348
Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561
Water NSW v Barlow [2019] NSWLEC 30; (2019) 244 LGERA 1
Zirilla v The Queen [2014] HCA 2; (2014) 253 CLR 58
Category: Sentence
Parties: City of Parramatta Council (Prosecutor)
Sydney Trees Excavation and Demolition Pty Ltd (Defendant)
Representation: Counsel:
Dr J Smith (Prosecutor)
M Beaufils (Defendant)
Solicitors:
HWL Ebsworth (Prosecutor)
Abbas Jacobs Lawyers (Defendant)
File Number(s): 2020/275126, 2020/275127, 2020/275128
Publication restriction: Nil
Judgment
Sydney Trees Excavation and Demolition Pty Ltd Removes Trees Unlawfully
1. On 5 February 2021 Sydney Trees Excavation and Demolition Pty Ltd ("Sydney Trees") pleaded guilty to three offences of contravening, by its employees, agents, or contractors, ss 4.2(1), 9.50 and 9.51 of the Environmental Planning and Assessment Act 1979 ("the EPAA").
2. The offences arose as a result of Sydney Trees removing a number of trees and its failure to erect tree protection barriers before undertaking demolition works on land at 52 Essex St, Epping (Lot 2 in deposited plan 305839) ("the land"), otherwise than in accordance with the conditions of development consent DA/805/2013 issued to Grand Epping Pty Ltd ("Grand Epping") by Hornsby Shire Council (now part of the City of Parramatta Council ("the Council")) on 23 April 2014 ("the consent") and cl 5.10(2)(a)(iii) of the Hornsby Local Environmental Plan 2013 ("the HLEP"). Grand Epping had directed Sydney Trees to perform the works the subject of the offences.
3. At the start of the hearing the Council was granted leave to amend the three summonses. The first summons concerned an offence under the HLEP and was in the following relevant terms ("the HLEP tree removal offence"):
An order that the Defendant, Sydney Trees Excavation and Demolition Pty Ltd ACN 600 481 534 registered office 74 Columbine Avenue, Punchbowl NSW 2196, in the State of New South Wales, appear before a judge of the Court to answer the charge that between on or about September 2018 to on or about November 2018 it committed an offence against s 9.50 of the Environmental Planning and Assessment Act 1979 (the Act) in that it did the following thing which was forbidden to be done:
by its employees, agents or contractors it did demolish trees (i.e lopping and removal) on land, being trees to which cl 5.10(2)(a)(iii) of the Hornsby Local Environmental Plan 2013 (the HLEP) applied, and which were prohibited from being demolished by the HLEP excepting with consent in breach of s 4.2(1)(a) of the Act.
Particulars
The land
The land comprising Lot 2 in Deposited Plan 305839 and known as 52 Essex Street, Epping (the Site).
The trees
Twenty-one (21) trees were removed from the Site to which cl 5.10(2)(a)(iii) of the HLEP applied.
The species, location and size of the trees that were removed from the Site can be identified by the Arboricultural Impact Appraisal and Method Statement endorsed by condition 1 of the Consent:
TREE SPECIES HEIGHT
3 Butia Capitata 6m
4 Butia capitata 7m
5 Michelia figo 6m
6 Cupressus sp. 7m
7 Morus sp. 7m
9 Grevillea robusta 22m
10 Grevillea robusta 12m
12 Cedrus deodara 20m
16 Pittosporum undulatum 10m
19 Grevillea robusta 14m
28 Grevillea robusta 16m
29 Phoenix canariensis 7m
30 Phoenix canariensis 6m
31 Phoenix canariensis 7m
32 Washingtonia robusta 16m
36 Jacaranda mimosifolia 10m
37 Jacaranda mimosifolia 10m
38 Lagerstroemia indica 9m
39 Lagerstroemia indica 9m
40 PALMS 9m
41 Camellia sasanqua 7m
The demolition
The trees were lopped and removed. This constitutes "demolish" within the meaning of cl 5.10(2)(a)(iii) of the HLEP.
Requirement for consent
No development consent had been issued by either the Hornsby Shire Council or the Prosecutor for the removal of the trees on the Site.
The manner of contravention by the defendant
The Defendant by its employees, agents or contractors carried out the demolition of 21 trees on the Site without having obtained the consent of Hornsby Shire Council or the Prosecutor, where such consent was required.
Date on which evidence of the alleged offence first came to the attention of an authorised officer
Evidence of the offence first came to the attention of authorised officer Ryan Bollard on 25 September 2018.
1. The second summons charged Sydney Trees as follows ("the tree removal offence"):
An order that the Defendant, Sydney Trees Excavation and Demolition Pty Ltd ACN 600 481 534 registered office 74 Columbine Avenue, Punchbowl NSW 2196, in the State of New South Wales, appear before a judge of the Court to answer the charge that between on or about September 2018 to on or about November 2018 it committed an offence against s 9.51 of the Environmental Planning and Assessment Act 1979 (the Act) in that it did the following thing which was forbidden to be done:
by its employees, agents or contractors it did remove trees on land in breach of s 4.2(1)(b) of the Act.
Particulars
The land
The land comprising Lot 2 in Deposited Plan 305839 and known as 52 Essex Street, Epping (the Site).
The trees
Twenty-one (21) trees were removed from the Site in breach of condition 3 of Development Consent DA/805/2013 issued by Hornsby Shire Council on 23 April 2014 (the Consent).
The species, location and size of the trees that were removed from the Site can be identified by the Arboricultural Impact Appraisal and Method Statement endorsed by condition 1 of the Consent:
TREE SPECIES HEIGHT
3 Butia Capitata 6m
4 Butia capitata 7m
5 Michelia figo 6m
6 Cupressus sp. 7m
7 Morus sp. 7m
9 Grevillea robusta 22m
10 Grevillea robusta 12m
12 Cedrus deodara 20m
16 Pittosporum undulatum 10m
19 Grevillea robusta 14m
28 Grevillea robusta 16m
29 Phoenix canariensis 7m
30 Phoenix canariensis 6m
31 Phoenix canariensis 7m
32 Washingtonia robusta 16m
36 Jacaranda mimosifolia 10m
37 Jacaranda mimosifolia 10m
38 Lagerstroemia indica 9m
39 Lagerstroemia indica 9m
40 PALMS 9m
41 Camellia sasanqua 7m
The Consent
The Consent was a development consent issued under Part 4 of the Act. Section 4.2 of the Act (1)(b) of the Act required development on the Site to be carried out in accordance with the Consent.
The manner of contravention by the defendant
The Defendant by its employees, agents or contractors carried out development involving the removal of 21 trees on the Site otherwise than in accordance with the Consent.
Date on which evidence of the alleged offence first came to the attention of an authorised officer
Evidence of the offence first came to the attention of authorised officer Ryan Bollard on 25 September 2018.
1. The third summons charged Sydney Trees in these terms ("the tree protection offence"):
An order that the Defendant, Sydney Trees Excavation and Demolition Pty Ltd ACN 600 481 534 registered office 74 Columbine Avenue, Punchbowl NSW 2196, in the State of New South Wales, appear before a judge of the Court to answer the charge that between on or about September 2018 to on or about November 2018 it committed an offence against s 9.51 of the Environmental Planning and Assessment Act 1979 (the Act) in that it did the following thing which was forbidden to be done:
by its employees, agents or contractors it did carry out development on land in breach of s 4.2(1)(b) of the Act.
Particulars
The land
The land comprising Lot 2 in Deposited Plan 305839 and known as 52 Essex Street, Epping (the Site).
The trees
Tree protection fencing was not erected prior to the commencement of any works of the Site as required by condition 9 of Development Consent DA/805/2013 issued by Hornsby Shire Council on 23 April 2014 (the Consent).
The Consent
The Consent was a development consent issued under Part 4 of the Act.
Section 4.2(1)(b) of the Act required development on the Site to be carried out in accordance with the Consent.
The manner of contravention by the defendant
The Defendant by its employees, agents or contractors carried out development involving the demolition of an existing dwelling and associated structures on the Site otherwise than in accordance with condition 9 of the Consent.
Date on which evidence of the alleged offence first came to the attention of an authorised officer
Evidence of the offence first came to the attention of authorised officer Ryan Bollard on 25 September 2018.
1. This judgment concerns the sentence to be imposed consequent upon the entry of pleas of guilty by Sydney Trees with respect to the offences contained in the three summonses.
2. For the reasons set out below, the Court fines Sydney Trees a total amount of $55,000 for the commission of the three offences.
Legislative and Regulatory Framework
1. Section 4.2(1) of the EPAA relevantly provides that:
4.2 Development that needs consent
(1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless—
(a) such a consent has been obtained and is in force, and
(b) the development is carried out in accordance with the consent and the instrument.
1. Section 9.50(3A) of the EPAA states:
9.50 Offences against this Act and the regulations
(3A) A person who—
(a) aids, abets, counsels or procures another person to commit, or
(b) conspires to commit,
an offence against this Act or the regulations arising under any other provision is guilty of an offence against this Act or the regulations arising under that provision and is liable, on conviction, to the same penalty applicable to an offence arising under that provision.
1. Section 9.51 of the EPAA provides:
9.51 Maximum monetary penalty—Tier 1, Tier 2 or Tier 3
If Tier 1, Tier 2 or Tier 3 is specified as the maximum monetary penalty at the end of a provision (or a number of provisions) of this Act, a person who contravenes or fails to comply with that provision (or those provisions) is guilty of an offence and liable to a monetary penalty not exceeding the relevant penalty specified in the following sections. If a period of imprisonment is also specified, the person is also liable to imprisonment not exceeding the period so specified.
1. Clause 5.10(2)(a)(iii) of the HLEP states that:
5.10 Heritage conservation
(2) Requirement for consent Development consent is required for any of the following—
(a) demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance)—
…
(iii) a building, work, relic or tree within a heritage conservation area,
Grand Epping Engages Sydney Trees to Undertake the Removal of Trees and the Demolition Works on the Land
The Land
1. The land comprises an irregular shape with a total area of 2,186.6m2, a street frontage of 30m, and a general depth of 67m.
2. At all material times, the land was owned by Grand Epping, which has as its directors Benjamin Yee and Ju Lim.
3. As at the date of the grant of consent the land contained:
1. the remnants of Sydney Turpentine Ironbark Forest, which is listed as a critically endangered ecological community ("CEEC") under the Biodiversity Conservation Act 2016;
2. an existing dwelling; and
3. approximately 41 trees.
1. The land is located within the Essex Street Heritage Conservation Area (cl 5.10 and Sch 5 Pt 2 of the HLEP).
Sydney Trees
1. Sydney Trees is a company registered in New South Wales and is engaged in the business of demolition, excavation, and land clearing.
2. The sole director and secretary of Sydney Trees is Bader Taleb.
The Consent
1. On 23 April 2014 the Council granted consent to Grand Epping for the subdivision of the land into three lots and the demolition of the existing dwelling and associated structures on the land.
2. The consent annexed the Arboricultural lmpact Appraisal and Method Statement prepared by Andrew Scales dated 28 November 2013 ("Arborist Report"). The Arborist Report contained a Tree Management Plan dated 28 November 2013 ("the Plan"). The Plan allocated an individual number to all trees on the land.
3. The Arborist Report required the appointment of a project arborist and the erection of appropriate tree protection measures under that project arborist's supervision, prior to the commencement of any demolition or construction works on the land.
4. The consent included a number of conditions requiring tree retention and tree protection on the land.
5. Condition 1 of the consent stated:
1. Approved Plans and Supporting Documentation
The development must be carried out in accordance with the plans and documentation listed below and endorsed with Council's stamp, except where amended by Council and/or other conditions of this consent.
…
Document Prepared by Dated
Arboricultural Impact Appraisal and Method Statement Naturally Trees 28 November 2013
1. Condition 3 stated that only tree 8 could be removed from the land:
3. Removal of Existing Trees
This development consent only permits the removal of tree numbered 8, located within the new access way immediately adjacent to Lot 2, as identified on the amended sub-division plan Sheet No.SK 8, Rev F, prepared by D-Studio Architects dated 11.2013 (TRIM Document No. D02824662). The removal of any other trees will require separate approval in accordance with Council's Development Control Plan.
1. Conditions 9 and 10 were required to be complied with prior to the commencement of any works on the land:
9. Tree Protection Barriers
Tree protection fencing must be erected around trees numbered 13, 14, 17, 18, 19, 20, 24, 25, 26, 27, and 35 to be retained at the nominated Tree Protection Zones (TPZ) listed below. The tree fencing must be constructed of 1.8 metre 'cyclone chainmesh fence'.
10. Tree Protection Zones (TPZ)
TREE TPZ
13, 17, 18, 19 4m
14, 24, 26, 27, 35 6m
20, 25 12m
Note: A certificate from a qualified Arborist (AQF 5) is to be submitted to the Principal Certifying Authority stating that all tree protection measures are in accordance with the above…
1. Condition 29 of the consent necessitated the registration of a covenant to protect certain parts of the land from development pursuant to ss 88B and 88E of the Conveyancing Act 1919 as follows:
29. Restriction as to User - Protection of Land from Future Development
The remnant Sydney Turpentine Ironbark Forest trees (including their respective Tree Protection Zones) subjects to this restriction and the area for future revegetation are to be clearly defined on the approved development plans.
To inform current and future owners that the areas of remnant Sydney Turpentine Ironbark Forest Endangered Ecological Community on the site is to be protected from future development, a Restriction as to User must be created under Section 88B of the Conveyancing Act 1919 identifying that the area of the site identified on the approved plans is restricted from development activities that would adversely affect these trees.
A positive covenant shall be created under Section 88E of The Conveyancing Act 1919 for the "Restricted Development Areas" where the management of remnant trees all future development works including landscape shall comply with the with the forthcoming Vegetation Management Plan.
All natural landscape features including natural rock outcrops, native vegetation (trees, shrubs and groundcovers), soil and watercourses are to remain undisturbed except only where affected by necessary works detailed on approved plans, or with Council's written consent. All construction works and landform modification are to be restricted to the development area as shown on the approved site plans. No machine or heavy vehicle is permitted within the "Restricted Development Areas". No encroachment of the building envelope, including the fill batter, is permitted within the restricted development areas…
1. By email to Grand Epping dated 28 May 2018, the Council allowed the removal of tree 20, a Eucalyptus saligna, because it was dead.
The Removal of the Trees
1. On 18 August 2018 Yee, acting on behalf of Grand Epping, used pink spray paint to mark approximately 24 trees on the land with an "X" to indicate the trees to be removed from the land and to enable contractors to provide quotes for the removal of the marked trees.
2. Sam Au of Enhance Project Management was engaged by Grand Epping to undertake a feasibility study relating to the potential development of the land for the purpose of constructing a boarding house. Development pursuant to the consent commenced while the feasibility study was being carried out in order to prevent the consent from lapsing. No lapsing date was provided in the consent, and in the absence of commencement, the consent would have lapsed on 23 April 2019 (ss 4.53(1) and 4.53(4) of the EPAA).
3. Au obtained the quotes requested by Grand Epping.
4. On 13 September 2018 Sydney Trees provided two quotes to Au to carry out the works on the land. The first quote was dated 9 September 2018 and included the following description:
DESCRIPTION AMOUNT
As per scope for work to be done
• 2 Trees to be removed as per scope, stump grinding included $6,800.00 + gst
• As per scope, clear all shrubs and vegetation under 3mtrs $15,800.00 + gst
• Set up tree protection zone and fencing around protected trees
• Include trees per scope to be removed from site
• Removal of house $27,800.00 + gst
• Removal of shed
1. The second quote provided by Sydney Trees had the same date and was in these terms:
DESCRIPTION AMOUNT
We are a licensed unrestricted demolition contractor and friable $27,800.00 + gst
Asbestos removal, with current policies covering the relevant necessary insurances
We have allowed for demolition removal of:
Complete demolition of the house, including all footing
All asbestos in the house to be removed
As per scope for work to be done
1. By way of email to Taleb the next day, Au, acting on Grand Epping's behalf, engaged Sydney Trees to complete the following works:
● Setting up of boundary fence (supplied by John) along Essex Street frontage
● Erosion and sediment control measures as per drawing attached
● Tree protection fences as per drawing attached, in reference to Arborist Report
● Tree protection measures as per DA condition and Arborist Report requirements
● Removal of trees (Phase as discussed and directed by Client)
1. Au provided Taleb with a copy of the consent, the Arborist Report, and the Plan upon Sydney Trees's engagement.
2. No project arborist was engaged prior to the commencement of the works.
3. From 22 to 25 September 2018, Sydney Trees removed the trees numbered 3, 4, 5, 6, 7, 36, 37, 38, 39, 40 and 41 from the land. During this period no tree protection barriers were put in place on the land.
4. On 2 October 2018 Au emailed Taleb stating:
Our colleague Fei just did an impromptu site inspection at this project site as he was in the area. He would like to draw your attention to a few matters:
• there are no/ insufficient sediment control measures on-site, please refer to the our erosion and sediment control plan.
• the fence separating no.54 and our site seems to be falling apart especially near the current access driveway, please rectify this or hold up with sediment control measures, last thing we need is a complaint from the neighbour.
• please put a clear signage of the PCA, Kudos, on the street-fronting fence.
• please put a legible sign on the portable toilet that it is the site toilet.
• please be careful with the trees, it is noted that the trees surrounding the main house have all been removed, some of which are 3m away from the house. We hope you are able to justify these trees being removed if questioned, as we are not responsible if the Council picks on this.
• it is noted that the tree protection fences and tree protection zones are not set-up yet, it would be best if this could be done quickly before the Arborist arrives, or on the day he comes for his certification.
1. After receipt of this email, trees 12, 16, 19 and 28 were removed by Sydney Trees. Tree 16 was part of the CEEC.
2. On 8 October 2018 Sydney Trees demolished the existing dwelling on the land. Again, no tree protection barriers were installed on the land.
3. In early October 2018 Au contacted Nada Kbar, an arborist, by phone and email and requested that she supervise the works taking place on the land. On 16 October 2018 Grand Epping accepted Kbar's quote. Prior to this no arborist had been involved in the works on the land since the Arborist Report had been prepared and submitted to the Council with Grand Epping's development application.
4. On 22 October 2018 Kbar attended the land and observed that:
1. the existing dwelling had been demolished;
2. trees 3, 4, 5, 6, 7, 8, 9, 10, 20, 29, 30, 31, 32, 36, 37, 38, 40 and 41 had been felled;
3. no remaining trees were marked with a spray painted "X"; and
4. no tree protection zones had been erected.
1. That same day, Kbar tagged the trees remaining on the land with small silver tags: trees 12, 14, 15, 16, 17, 18, 19, 21, 22, 23, 24, 25, 26, 27 and 35.
2. On 30 October 2018 Grand Epping directed Sydney Trees to erect tree protection fencing in accordance with the consent.
3. Between 26 September and 1 November 2018, Sydney Trees removed trees 8, 9, 10, 12, 16, 19, 20, 28, 29, 30, 31, 32 and 33 from the land. During this period, no tree protection existed, with the exception of barriers around trees 13 and 14, that had been erected on 30 October 2018.
4. On 1 November 2018 Grand Epping directed Sydney Trees to construct fencing around trees 1, 2, 17 to 20 and 24 to 26. By 2 November 2018 Sydney Trees had installed tree protection fencing around these trees.
5. On 7 November 2018 Kbar was appointed as project arborist pursuant to the consent.
The Council's Investigation
1. Sydney Trees nominated Taleb as its corporate representative to participate in two recorded interviews ("ROI") with Council officers on 1 February 2019 and 12 June 2020.
The Wolf Report
1. The Council relied upon the ecological evidence of Katrina Wolf, who affirmed an affidavit on 21 April 2021. Annexed to her affidavit was her report of the same date entitled 52 Essex Street, Epping: Individual Expert Report: Ecology Issues ("the Wolf Report"). Extracts from the Wolf Report were provided in a statement of agreed facts tendered in the proceedings (emphasis added):
[65] At the time of approval of the project, vegetation within the subject land contained a mosaic of planted native/exotic vegetation and remnant vegetation.
[66] A total of 22 trees were observed to be removed within the subject land during the field survey by Cumberland Ecology. Of these trees, one is a native species which is characteristic of PCT 1281 and the Sydney Turpentine- Ironbark Forest CEEC.
'PCT 1281' is defined by Ms Wolf at paragraph 35 as "Plant Community Type (PCT) 1281 Turpentine - Grey Ironbark open forest on shale".
[59] The extent of PCT 1281 within the subject land is highly modified and comprises a remnant canopy over a largely cleared understorey. Due to the highly modified nature of the CEEC and the limited extent of impact, the removal of one tree is not considered to constitute a significant impact to the CEEC. However the removal of the trees represents environmental harm, albeit minor in nature.
[60] The existing vegetated corridor in the rear of the properties located between Essex Street and Forest Grove is limited to a very restricted and localised area, and does not connect to any conservation reserves. The clearing of 22 trees has had an actual, albeit minor impact on the vegetated corridor.
[61] The value of the corridor is limited to a 'stepping stone' habitat for highly mobile and urban adapted species that are common in the Ryde LGA, and would likely be utilised as occasional foraging resources for birds and bats. The value for these species is limited for these species by the narrow width, and total area of habitat available, and it is unlikely that a local population of a threatened species would rely on this habitat for their survival.
[62] In summary, the environmental harm or likely harm that has occurred within the subject land included:
(i) Removal of 22 trees as listed in Table 2, including one tree which is characteristic of PCT 1281 and the Sydney Turpentine-Ironbark Forest CEEC; and
(ii) Reduction of the vegetated corridor located at the rear of the properties located between Essex Street and Forest Grove.
Taleb's Evidence
1. Taleb affirmed an affidavit on 18 June 2021, in which he deposed that he had been the sole director of Sydney Trees for the past six years.
2. Grand Epping engaged Sydney Trees to demolish a dwelling, erect tree protection fences, and to remove a number of trees on the land. Sydney Trees had previously completed work for Grand Epping.
3. Approximately one week before the commencement of works, Taleb attended a meeting on the land regarding the works with two people whose names he could not recall and an arborist. At that meeting the trees that were to be marked for removal, and the works more generally, were discussed.
4. Prior to the commencement of the development, Grand Epping supplied temporary fencing to Sydney Trees, which it erected. Sediment control measures around the dwelling were also put in place to protect the trees.
5. Approximately a week after the meeting on the land, Sydney Trees commenced the demolition of the dwelling on the land. The demolition took approximately two weeks.
6. Taleb attended another meeting after the demolition of the dwelling, at which Yee stated words to the effect of, "the arborist has already marked the trees with an "X" and they are ready to be removed".
7. Sydney Trees worked on the land for an additional fortnight, during which time Council officers regularly attended the site, sometimes twice a day. Council officer Peter Sykes advised Sydney Trees that there had been a complaint made by a neighbour regarding the works taking place on the land. Neither the Council officers, nor Au, had indicated that the works were in contravention of the consent.
8. Sydney Trees was paid approximately $10,000 for the works.
9. Approximately six months after the completion of the works, Taleb was contacted by the Council and asked to attend an interview regarding the works completed on the land.
10. When Taleb was charged with the offences he contacted Yee. Taleb deposed that Yee had admitted that it was Grand Epping, not the arborist, that had marked the trees for removal with an "X".
11. Taleb additionally deposed that:
1. at all material times he had thought that he was doing the "right thing" by removing the marked trees;
2. he was extremely upset about the way that he was "lied to" by Grand Epping and felt that he was the "fall guy" for the offences;
3. he trusted Grand Epping and, having worked for the company previously, had no reason to believe that it would mark the trees for removal in contravention of the consent;
4. he had learned about the requirement to lawfully remove trees as a result of being charged with the offences;
5. he would never again trust someone who stated that they had approval to remove trees without first confirming the statement with the relevant council; and
6. he realised that he had done the wrong thing, that he was sorry, and that he was ashamed and embarrassed that he had committed the offences.
1. Taleb provided evidence regarding Sydney Trees's financial circumstances, namely, that:
1. he had recently suffered a serious crush injury to his left hand and that on 10 June 2021 he had undergone emergency surgery in an attempt to save it;
2. as a result of the surgery he will be unable to work for between three to six months. It is also unclear if he will regain full use of his hand;
3. Sydney Trees had suffered financial loss as a result of the COVID-19 pandemic; and
4. he was estranged from his wife and had received legal advice to the effect that the resultant family law proceedings are likely to place him under additional financial strain.
1. Taleb's affidavit annexed medical records regarding the injury that he sustained to his left hand and a bank account statement for Sydney Trees for the period 5 May to 17 June 2021.
Sentencing Principles
The Purposes of Sentencing
1. The purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 ("CSPA") and are not repeated here but have been taken into account in determining the appropriate sentence to be imposed on Sydney Trees for its commission of the offences.
Statutory Matters Required to be Taken into Account in Sentencing
1. Subsections 21A(2) and (3) of the CSPA set out the aggravating and mitigating factors that the Court must consider when sentencing an offender. Relevant to the facts of this case they are as follows:
21A Aggravating, mitigating and other factors in sentencing
(2) Aggravating factors
The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:
…
(o) the offence was committed for financial gain…
The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.
(3) Mitigating factors
The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:
(a) the injury, emotional harm, loss or damage caused by the offence was not substantial,
(b) the offence was not part of a planned or organised criminal activity,
…
(e) the offender does not have any record (or any significant record) of previous convictions,
(f) the offender was a person of good character,
(g) the offender is unlikely to re-offend,
(h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise,
(i) the remorse shown by the offender for the offence, but only if:
(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and
(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),
…
(k) a plea of guilty by the offender (as provided by section 22 or Division 1A),
…
(m) assistance by the offender to law enforcement authorities (as provided by section 23)…
1. The Council bears the onus of proving beyond reasonable doubt any aggravating factor for the purpose of sentencing (Gore v The Queen [2010] NSWCCA 330; 208 A Crim R 353 at [26] and [104] and R v Wickham [2004] NSWCCA 193 at [27]). The onus of proof lies upon Sydney Trees, however, to establish any factor in mitigation on the balance of probabilities (Wickham at [27] and R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27]).
2. Importantly, the sentence to be imposed on Sydney Trees for its commission of the offences must be proportionate to both the objective seriousness or gravity of the offence and its subjective circumstances (Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 at 490 and Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472).
Objective Seriousness of the Offences
1. The objective gravity of an offence 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 crimes considered in light of their objective circumstances (Veen (No 2) and Hoare v The Queen [1989] HCA 33; (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 offences (R v Dodd (1991) 57 A Crim R 349 at 354 and R v Nichols (1991) 57 A Crim R 391 at 395).
2. The objective seriousness is to be determined by reference to the nature of the offences and not by reference to matters that are personal to the offending entity (Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27]).
3. A determination of the objective seriousness or gravity of the offences requires a consideration of the factors discussed below.
Nature of the Offences
1. The nature and purpose of the provision that has been contravened, and its place in the statutory scheme, are illustrative of the objective seriousness of an environmental offence (Bentley v BGP Properties Pty Limited [2006] NSWLEC 34; (2006) 145 LGERA 234 at [168]-[169]; Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [49]; and Chief Executive, Office of Environment and Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 at [59]).
2. The objects of the EPAA are contained in s 1.3 of that Act.
3. The aims of the HLEP are relevantly contained in cl 1.2(2) of that instrument:
1.2 Aims of Plan
(2) The particular aims of this Plan are as follows—
…
(a) to facilitate development that creates—
(i) progressive town centres, thriving rural areas and abundant recreation spaces connected by efficient infrastructure and transport systems, and
(ii) a well-planned area with managed growth to provide for the needs of future generations and people enriched by diversity of cultures, the beauty of the environment and a strong economy,
(b) to guide the orderly and sustainable development of Hornsby, balancing its economic, environmental and social needs,
(c) to permit a mix of housing types that provide for the future housing needs of the community near employment centres, transport nodes and services,
…
(h) to protect and enhance the scenic and biodiversity values of environmentally sensitive land, including bushland, river settlements, river catchments, wetlands and waterways,
(i) to protect and enhance the heritage of Hornsby, including places of historic, aesthetic, architectural, natural, cultural and Aboriginal significance,…
1. The nature of the offence of contravening a condition of an approval was articulated by the Chief Judge in Secretary, Department of Planning and Environment v Boggabri Coal Pty Limited [2014] NSWLEC 154 as follows (at [18]):
18 There is a need for the upholding of the integrity of the system of planning and development control. The system depends on persons taking steps to obey the law by ascertaining when development consent is required, obtaining development consent when required, and carrying out development in accordance with any development consent obtained: Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [104], [105] and Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [18].
1. The commission of the offences by Sydney Trees offended the objects and aims of the EPAA and the HLEP and subverted the integrity of the planning regime in this State as provided for by those statutory instruments.
Maximum Penalty
1. The maximum penalty provided for the commission of an offence reflects Parliament's view of the seriousness of the offence (Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 and Rawson at [57]).
2. At the time the offences were committed, the maximum penalty for each offence was $2 million (ss 4.2(1)(b), 9.52(3) and 9.53(1)(a)(i) of the EPAA).
The Environmental Harm Caused or Likely to be Caused by the Commission of the Offences
1. The environmental harm caused by the commission of the offences is central to determining their objective gravity. The concept of harm in the context of environmental offences is broad (Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2006) 148 LGERA 299 at [145]-[147] and Heatscape (No 2) at [238]).
2. As established above, at a minimum, the commission of the offences undermined the integrity of the system of planning and development controls enacted in this State (Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89 at [35]).
Harm Caused by the Commission of the HLEP Tree Removal Offence and the Tree Removal Offence
1. The Council submitted that the removal of the trees caused actual substantial harm which constituted an aggravating factor under the CSPA for the following reasons:
1. one of the trees removed was part of the CEEC;
2. 21 trees were removed (that is, half of the trees on the land), many of which were mature;
3. several trees were identified as being of high landscape significance in the Arborist Report; and
4. the trees had significance in the urban landscape and were located in a heritage conservation area protected under the HLEP.
1. The Council relied on the following authorities in support of its submission:
1. first, Pittwater v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 where Preston J held that the harm to the environment caused by the cutting down of two trees was substantial constituting a factor of aggravation notwithstanding the prosecutor's concession that the impact of the offences could only be described as minimal;
2. second, Hunters Hill Council v Liu [2018] NSWLEC 108 which concerned the removal of two trees subject to a tree preservation order. The trees were found to be of minor ecological importance but of high landscape significance. The Court accepted that the harm caused by their removal was substantial;
3. third, the decision in Hunters Hill Council v Gary Johnston [2013] NSWLEC 89 where the Court determined that the environmental harm caused by the removal of three trees, and the part removal of a fourth tree, was sufficient to constitute a factor of aggravation. The Court had regard to the landscape significance of the trees and the fact that their retention had been required by the council in order to offset the amenity impacts of the development; and
4. fourth, the decision in Hunters Hill Council v Carter [2018] NSWLEC 84 where it was held that substantial environmental harm was caused by the lopping and topping of 13 trees having regard to the number of trees damaged and their maturity.
1. In reply, Sydney Trees contended that the offences resulted in minor actual environmental harm relying upon the conclusions in the Wolf Report.
2. Sydney Trees further submitted that the landscape significance of trees 9 and 12 had been overstated by the Council in circumstances where the Arborist Report had identified those trees as "category Z", that is, "unimportant".
3. Notwithstanding the expert ecological evidence, having regard to the authorities referred to above and the circumstances of this case, I find that the commission of the HLEP tree removal offence and the tree removal offence caused substantial actual harm to the environment. This is because:
1. almost half of the trees on the land (21) were removed, many of which were mature;
2. two of the trees removed were considered to be of high landscape significance;
3. a number of the trees had been visible from the street and their removal had adversely impacted upon the amenity of the streetscape;
4. one of the trees removed had formed part of the CEEC; and
5. the removal of the trees from the vegetated corridor at the rear of the land resulted in the degradation of a foraging resource for birds and bats.
Harm Caused by the Commission of the Tree Protection Offence
1. The Council submitted that the tree protection offence resulted in harm to tree 19, which was removed, and, furthermore, placed the remaining trees on the land at risk of harm as a result of their proximity to the works being carried out.
2. I accept that actual and likely environmental harm, albeit of a minor nature, was caused by the commission of the tree protection offence.
State of Mind of Sydney Trees at the Time of the Commission of the Offences
1. The offences charged under the EPAA are strict liability offences, and therefore, mens rea is not an element of the offences. However, the state of mind of Sydney Trees at the time of the commission of the offences is nonetheless relevant to the question of penalty. A strict liability offence committed intentionally, recklessly, or negligently, "exacerbates the objective culpability of the defendant" (Camilleri's Stock Feeds at 700; Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [123]; and Rawson at [98]).
2. Taleb was not cross-examined as to Sydney Trees's state of mind at the time of the commission of the offences.
3. The Council did not contend that any of the offences were committed intentionally and there was no evidence before the Court to ground such a finding beyond reasonable doubt. It is therefore not necessary to consider whether the principle in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 (at 389) precludes the Court from considering Grand Epping's state of mind by reason of the existence of a more serious offence for which a tier 1 monetary penalty applies (see s 9.52 of the EPAA).
The Offences Were Committed Recklessly
1. A defendant's conduct is reckless if the defendant is put on notice, in the sense that the defendant believes or suspects that an act or omission may be unlawful but the defendant nevertheless proceeds to engage in it without making further enquiries (see Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 4 at [171]; Director-General, Department of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110 at [136] citing Chief Office of Environment and Heritage v Rummery [2012] NSWLEC 271; (2012) 192 LGERA 314 at [126]; and Chief Executive of the Office of Environment and Heritage, Department of Premier and Cabinet v Turnbull [2014] NSWLEC 150 at [141]).
2. The Council submitted that, with the exception of the removal of trees 12, 16, 19 and 28, which it argued were removed in circumstances amounting to criminal negligence, Sydney Trees committed the offences recklessly.
3. Sydney Trees conceded that it committed those offences recklessly.
4. I find that Sydney Trees committed the HLEP tree removal offence and the tree removal offence recklessly for the following reasons:
1. Sydney Trees had been engaged in the business of demolition and tree removal works since around 2015. That is, it was experienced and knew that consent was often required to remove trees (especially that many) from a site;
2. Au provided Sydney Trees with a copy of the consent around the time it was engaged to complete the works; and
3. on 2 October 2018 Au emailed Taleb and requested that Sydney Trees "please be careful with the trees", suggesting that the removal of the trees may not be permitted. Nevertheless, trees 12, 16, 19 and 28 were removed by Sydney Trees.
1. I find that the tree protection offence was committed recklessly for similar reasons set out above with respect to the HLEP tree removal offence and the tree removal offence. In addition:
1. on 14 September 2018 Au emailed Taleb regarding the scope of works Sydney Trees was contracted to complete. This email expressly requested that Sydney Trees install tree protection fencing in accordance with the consent;
2. on 2 October 2018 Au emailed Taleb regarding the failure of Sydney Trees to erect tree protection fencing. After receipt of this email no tree protection measures were erected by Sydney Trees and it removed tree 19;
3. on 30 October 2018 Grand Epping again directed Sydney Trees to erect tree protection fencing. Sydney Trees erected fencing around trees 13 and 14 only; and
4. on 1 November 2018 Grand Epping again directed Sydney Trees to erect tree protection fencing around trees 1, 2, 17 to 20 and 24 to 26. It was not until 2 November 2018, however, that Sydney Trees had installed tree protection fencing around these trees.
The Removal of Trees 12, 16, 19 and 28 Was Not Criminally Negligent
1. The Council submitted that after Sydney Trees had received Au's email dated 2 October 2018, it was criminally negligent in removing trees 12, 16, 19 and 28 because it was indifferent to an obvious risk that the removal of these trees had not been approved by the Council (relying upon Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103; (2014) 206 LGERA 239 at [147]).
2. Sydney Trees denied that the removal of those four trees met the threshold for criminal negligence and submitted that, properly characterised, the removal of those four trees was reckless.
3. The test for criminal negligence in the context of environmental crime is to inquire whether there has been such a great falling short of the standard of care which a reasonable person would have exercised and which involved such a high risk that harm would follow that the doing of the act or the omission merits criminal punishment (Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 at [188] and Sydney Water Corporation [2021] NSWLEC 4 at [176]).
4. The Council relied on Au's email dated 2 October 2018 where he stated, "please be careful with the trees…we hope you are able to justify these trees being removed if questioned, as we are not responsible if the Council picks on this", in support of its submission. However, those words are equivocal, particularly in circumstances where Sydney Trees was previously engaged to remove all trees marked with an "X" on the land and in light of the unchallenged evidence provided by Taleb that he mistakenly believed that the tree removal was lawful.
5. While Sydney Trees's failure to make further enquiries regarding the lawfulness of the tree removal after the receipt of Au's email demonstrates that Sydney Trees was reckless, it does not, in my opinion, meet the high threshold required to establish criminal negligence.
Sydney Trees's Reasons for Committing the Offences
1. The criminality involved in the commission of an offence is measured not only by the seriousness of what actually occurred but also by reference to the reasons for its occurrence (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at [366] and Bentley at [237]). An offence committed for financial gain is objectively more serious than one that is not.
2. At the sentencing hearing the Council conceded that there was no evidence beyond reasonable doubt to sustain any contention that Sydney Trees committed the offences for financial gain. The concession was correctly made.
Reasonable Foreseeability of the Harm Caused or Likely to be Caused to the Environment by the Commission of the Offences
1. For harm to be reasonably foreseeable, the precise cause of the event or events giving rise to the harm is not required to be foreseen (Environment Protection Authority v Baida Poultry Pty Ltd [2008] NSWLEC 280; (2008) 163 LGERA 71 at [31]-[32]).
2. It was agreed that it was reasonably foreseeable that if Sydney Trees was wrong in its belief that the works were permitted that actual and likely harm would be caused to the environment.
Control Over the Causes of the Commission of the Offences
1. It was not in dispute that at all times Sydney Trees had complete control over the causes of the commission of each of the offences.
Practical Measures Which Could Have Been Taken to Avoid the Harm
1. Sydney Trees accepted that it could have checked with the Council whether the tree removal was lawful in order to avoid the harm caused by the commission of the offences.
2. Sydney Trees could have taken further practical measures to avoid the harm caused by the commission of the offences, such as, reading the consent that it received when it was engaged by Grand Epping.
Conclusion on the Objective Seriousness of the Offences
1. Sydney Trees contended that the objective seriousness of the offences was at the lower end of the range.
2. Having regard to my finding that Sydney Trees committed the HLEP tree removal offence and the tree removal offence recklessly, and that substantial environmental harm had been caused as a result of the commission of those offences, I am satisfied that the commission of those offences was of moderate objective seriousness.
3. I find that the tree protection offence is of low objective seriousness having regard to my findings that while Sydney Trees committed the offence recklessly, only minor environmental harm was caused as a result.
Sydney Trees's Subjective Circumstances
1. Within the limits set by the objective seriousness of the offences, the Court must take into consideration the subjective circumstances of Sydney Trees in determining the appropriate penalty to be imposed (Environment Protection Authority v GrainCorp Operations Limited [2019] NSWLEC 143 at [116] and [190]).
The Offences Were Not Committed for Financial Gain
1. It has not been demonstrated that the offences were committed for financial gain (s 21A(2)(o) of the CSPA).
Whether the Harm to the Environment Was Substantial
1. As determined above, the HLEP tree removal offence and the tree removal offence resulted in substantial harm to the environment which constitutes a factor in aggravation. However, the tree protection offence resulted in only minor harm to the environment (s 21A(3)(a) of the CSPA).
The Offences Were Not Part of a Planned or Organised Criminal Activity
1. Sydney Trees submitted, and I accept, that the offences were not part of a planned or organised criminal activity in circumstances where Sydney Trees was acting under the mistaken belief that its actions were lawful (s 21A(3)(b) of the CSPA).
Prior Convictions
1. Sydney Trees does not have any prior convictions (s 21A(3)(e) of the CSPA).
Assistance Provided to Authorities
1. The Council submitted that a voluntary decision to make admissions to law enforcement does not constitute "assistance" within the meaning of that word in s 21A(3)(m) of the CSPA (relying on Le v R [2019] NSWCCA 181 at [53]-[54], [56] and Browning v R [2015] NSWCCA 147 at [123]).
2. However, Sydney Trees also assisted the Council by attending two ROIs, aiding the Council during its investigations, and by agreeing to two statements of agreed facts.
3. I therefore accept that Sydney Trees provided assistance to the Council.
Early Pleas of Guilty
1. A plea of guilty entered by a defendant at the first available opportunity can attract a maximum discount of 25% off the penalty imposed as a reflection of the utilitarian value of the pleas to the criminal justice system (ss 21A(3)(k) and 22 of the CSPA and R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 [160]). What is regarded as an early plea will vary in the circumstances of the case (Thomson at [160(iii)]).
2. Sydney Trees entered pleas of guilty to each of the offences on the third occasion the matter was before this Court, that is, once it had obtained legal representation. In these circumstances an award of the full 25% discount is warranted.
Contrition and Remorse
1. Pursuant to s 21A(3)(i) of the CSPA, remorse will only be a mitigating factor if:
(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and
(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both).
1. The Council submitted that Taleb's affidavit evidence indicates that Sydney Trees continues to blame Grand Epping for the commission of the offences and that no acknowledgement of the harm to the environment occasioned as a result of the offences has been proffered.
2. However, in his affidavit Taleb apologised and expressed unreserved shame and embarrassment for the commission of the offences. Having regard to Taleb's evidence, I accept that Sydney Trees has demonstrated contrition and remorse and I take this into account.
Likelihood of Reoffending and Prospects of Rehabilitation
1. As was agreed, I find that Sydney Trees's likelihood of reoffending is low and that it has generally good prospects of rehabilitation (s 21A(3)(g) and 21A(3)(h) of the CSPA).
No Evidence that Sydney Trees is of Good Corporate Character
1. As conceded by Sydney Trees at the sentencing hearing, there was no evidence of its good corporate character before the Court beyond its lack of prior convictions.
2. I am therefore unable to find that Sydney Trees's character constitutes a mitigating factor for the purposes of the sentencing exercise (s 21A(3)(f) of the CSPA).
The Offences Could Have Been Prosecuted in the Local Court
1. It is well established that the fact that an offence could have been dealt with in a court with a lower jurisdictional limit is an available circumstance to be taken into account in the sentencing exercise (Harris v Harrison [2014] NSWCCA 84; (2014) 86 NSWLR 422 at [92]-[93] citing R v Crombie [1999] NSWCCA 297; R v Doan [2000] NSWCCA 317; 50 NSWLR 115).
2. Sydney Trees submitted that in circumstances where the offences could have been prosecuted in the Local Court the sentence imposed by this Court should not exceed the Local Court's jurisdictional limit. However, given that it is highly unlikely that any fine imposed in these proceedings on Sydney Trees will exceed the jurisdictional limit of the Local Court, only limited weight is given to this factor.
General and Specific Deterrence
1. The Court is required to take into account both general and specific deterrence (Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 at 569 per Brennan J). One of the purposes of the Court in imposing a sentence is to prevent crime by deterring the offender and other persons from committing similar offences. This purpose is enshrined in s 3A(b) of the CSPA (Gittany at [188] and [192] and Environment Protection Authority v Rands [2019] NSWLEC 23 at [161]).
2. The penalty imposed by the Court must serve as a general deterrent (Environment Protection Authority v Crown in the Right of New South Wales (Office of Environment and Heritage) [2019] NSWLEC 66 at [175]-[177]). General deterrence is vital "to ensure that the penalty imposed acts to deter those who might engage in similar activities from committing like offences" (Mouawad v The Hills Shire Council [2013] NSWLEC 165; (2013) 199 LGERA 28 at [188] and Axer at 359).
3. The principles of general deterrence were recently discussed by this Court, albeit in the context of development absent the requisite consent, in Chahoud v Penrith City Council [2020] NSWLEC 167 as follows (at [119]):
119 The Court accepts that embedded within the determination of the appropriate sentence to be imposed on Chahoud must be an element of general deterrence to ensure that members of the community are dissuaded from engaging in development and use of land absent obtaining the necessary approvals. Put bluntly, persons must be deterred from carrying out activities on land by reason of erroneous belief that because they own it, they can do what they want with it. This attitude is anathema to the statutory regime governing land use and development in New South Wales.
1. This Court described the principles of specific deterrence in the context of offences against the EPAA in Environment Protection Authority v Sam Abbas (also known as Osama Abbas) [2021] NSWLEC 57 as (at [106]):
106 Specific deterrence has particular relevance where an offender continues to operate in the same area of operation in which the offence occurred: Environment Protection Authority v Ardent Leisure Ltd (ACN 104 529 106) [2018] NSWLEC 36 at [135] per Robson J citing Preston CJ in Environment Protection Authority v Ravensworth Operations Pty Ltd [2012] NSWLEC 222 at [48].
1. General deterrence must be taken into account here to ensure that the general public, and in particular, other tree removal and demolition companies, undertake works in accordance with the terms of consents and take steps to ensure that any works that they are contracted to carry out are lawful.
2. Specific deterrence is also an element in the present sentencing exercise because Sydney Trees continues to operate in the tree removal and demolition area. This is especially the case given my finding to the effect that Sydney Trees committed the offences recklessly.
Retribution and Denunciation
1. The Court must impose a sentence that achieves the purposes of denouncing the conduct the subject of the offences and making Sydney Trees accountable for its actions (Pesic v Sutherland Shire Council [2019] NSWLEC 38 at [41]).
Consistency in Sentencing
1. The task of the sentencing court is to seek evenhandedness in the imposition of a sentence (R v Oliver (1980) 7 A Crim R 174 at 177 and R v Visconti [1982] 2 NSWLR 104 at 107C). However, care must be taken in achieving consistency. There is always difficulty comparing the penalty in one case with that in another because of the wide divergence of facts and circumstances in each (Axer at 365; Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 at [54]-[55]; Barbaro v The Queen; Zirilla v The Queen [2014] HCA 2; (2014) 253 CLR 58 at [28] and [40] and [41]; and Pham v R [2015] HCA 39; (2015) 256 CLR 550 at [28]-[32]). The sentence imposed in a single case does not demonstrate the limits of a sentencing court's discretion (Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at [35] and Environment Protection Authority v Barnes [2006] NSWCCA 246 at [79]).
2. The parties provided the Court with a number of analogous decisions which I have read and taken into account to assist in the sentencing exercise.
3. The decision the Court was directed to which is most analogous to the circumstances of this case is Ku-ring-gai Council v Edgar [2017] NSWLEC 49. In that case, a tree lopping contractor pleaded guilty to an offence against s 125(1) of the EPAA. The defendant was instructed to remove 74 trees by the owner of the land but took no steps to satisfy himself as to whether all necessary approvals had been obtained for the works. The trees were subject to a tree preservation order. The defendant was fined $16,000 after the application of a discount for the utilitarian value of his early guilty plea and having regard to the defendant's limited financial means (at [63], [66] and [72]).
4. In Georges River Council v WK Strong Pty Limited; Georges River Council v Awada [2019] NSWLEC 97 the Chief Judge helpfully summarised the sentences in a number of analogous tree removal cases as follows (at [76]):
76 In determining the appropriate penalty, the Court should be consistent with a pattern of sentencing for like offences. I have had regard to the sentences imposed by this Court in other cases involving offences of cutting or removing trees to which the parties have drawn my attention. I have considered the sentences imposed and the objective circumstances of the offences and the offenders involved that led the sentencing court to impose those sentences. The cases include:
(a) Hunters Hill Council v Gary Johnston [2013] NSWLEC 89 (total removal of three trees and part removal of a fourth tree required to be retained by conditions of development consent and fined $40,000);
(b) Wingecarribee Shire Council v O'Shannassy (No 6) [2015] NSWLEC 138 (unlawful earthworks and removal of six to nine trees without development consent and fined $93,500);
(c) Burwood Council v Abdul Rahman (No 2) [2017] NSWLEC 177 (removal of tree in a heritage conservation area and fined $50,000);
(d) Willoughby City Council v Rahmani [2017] NSWLEC 166 (removal of three trees that were part of an endangered ecological community and fined $60,000);
(e) Hunters Hill Council v Liu [2018] NSWLEC 108 (removal of two trees and fined $48,000); and
(f) Hornsby Shire Council v Henlong Property Group Pty Ltd (No 2) [2019] NSWLEC 17 (removal of seven trees permitted to be cleared by a development consent but before the consent became operative and fined $28,000).
1. I have taken the cases referred to by the Chief Judge above into account having regard to their similarities and differences with the facts of the commission of the offences the subject of these proceedings.
Analogous Application of the Parity Principle
1. Sydney Trees submitted that, by analogy, the parity principle should be applied in circumstances where Grand Epping was recently sentenced by this Court for not dissimilar offences arising out of the same factual matrix (City of Parramatta Council v Grand Epping Pty Ltd [2021] NSWLEC 70).
2. In Grand Epping, the corporate offender was convicted and sentenced for two offences of aiding, abetting, counselling, or procuring breaches of s 4.2(1)(b) of the EPAA pursuant to s 9.50(3A)(a) of that Act. The offences arose as a result of Grand Epping's procurement of Sydney Trees to remove the trees on the land and to carry out demolition activities absent tree protection in contravention of the consent. The Court found that substantial harm was caused as a result of the commission of the tree removal (at [110]) and that Grand Epping had committed the offences intentionally (at [123]-[127]), but not for financial gain (at [128]-[133]). Grand Epping was fined a total sum of $100,000 for the commission of the offences (at [181]).
3. The parity principle applies to common criminal enterprises as between co-offenders (Henderson v R [2012] NSWCCA 65 at [60]) irrespective of whether the charges have been laid in the same or different proceedings (Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [29] and [30]).
4. Adopting a substance over form approach (Green at [30]), I am satisfied that the unlawful development of the land by Sydney Trees and Grand Epping constitutes a sufficiently common criminal enterprise which attracts an analogous application of the parity principle (it does not strictly apply to Grand Epping and Sydney Trees who are not co-offenders because the offences with which they were charged are different) insofar as the sentence to be imposed on Sydney Trees should not be greater than that imposed on Grand Epping.
Financial Means of Sydney Trees
1. Sydney Trees submitted that it had a limited capacity to pay any monetary penalty likely to be imposed upon it by this Court (s 6 of the Fines Act 1966). In support of its submission, it adduced evidence in the form of a bank statement in the company's name and medical records regarding the injury to Taleb's hand.
2. The Council submitted that this evidence was insufficient to ground a finding that it would be incapable of paying any monetary penalty likely to be imposed by the Court.
3. I agree with the Council's contention, even on the balance of probabilities.
4. The single bank statement relied upon by Sydney Trees was confined to a two month period only and there was no evidence before the Court demonstrating that this was Sydney Trees's only bank account.
5. No tax returns or other financial statements were adduced by the company. Moreover, no evidence was adduced regarding Sydney Trees's assets.
6. Accordingly I reject the suggestion that Sydney Trees has a limited capacity to pay any monetary penalty likely to be imposed upon it by this Court in these proceedings (s 6 of the Fines Act 1966).
7. Having said this, I do take the fact of Taleb's injured hand into account.
Costs
1. In the exercise of its sentencing discretion in relation to the quantum of any monetary penalty to be imposed on Sydney Trees, the Court can take into account the costs that it agrees to pay (Barnes at [78] and [88]). In doing so, the Court must be mindful that the payment of the Council's costs is not a reason for reducing any penalty to be imposed in a particular case lower than that suggested by the general pattern of sentencing for the relevant offence (Liverpool City Council v Leppington Pastoral Co Pty [2010] NSWLEC 170 at [50]).
2. The Court therefore takes into consideration that Sydney Trees will be ordered to pay the Council's costs of the proceedings as agreed or assessed under s 257G of the Criminal Procedure Act 1986.
Totality Principle
1. The totality principle is a relevant consideration when determining, as in the present proceedings, an aggregate penalty in sentencing for multiple offences (Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 62 to 63; Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [40]; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [18]; and Water NSW v Barlow [2019] NSWLEC 30; (2019) 244 LGERA 1 at [111]-[112]). The task of the Court is to ensure that the overall sentence is neither too harsh nor too lenient.
2. Care must nevertheless be taken "to ensure that any adjustment of individual sentences does not cause the aggregate sentence not to reflect the total criminality of the offender's conduct or the sentence for any individual offence to become disproportionate to the objective gravity of that offence" (Rawson at [222]; Gittany at [199] and [201]; R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 at [46]; and R v Wheeler [2000] NSWCCA 34 at [36]–[37]). The application of the totality principle must not cause public confidence in the administration of justice to be undermined by any perception that "what is in effect being offered is some kind of discount for multiple offending" (R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [18]).
3. Arising as they do from the same conduct, it is clear that the HLEP tree removal offence and tree removal offence are sufficiently similar and co-incident to justify the application of the totality principle to both charges (Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [40]).
4. The tree protection offence is of a slightly different character than the two tree removal offences, involving a contravention of a different condition of the consent. However, it was also committed during the course of Sydney Trees's works on the land as directed by Grand Epping. On that basis, I consider that the totality principle also applies to the tree protection offence.
Appropriate Sentence
1. Having regard to the objective seriousness of the commission of the offences, the mitigating subjective factors in favour of Sydney Trees, and the penalties imposed in the relevant comparable cases I find that the imposition of a monetary penalty is warranted for each offence as follows:
1. for the HLEP tree removal offence a fine of $40,000;
2. for the tree removal offence a fine of $40,000; and
3. for the tree protection offence a fine of $25,000.
1. Each penalty must be discounted by 25% for the utilitarian value of Sydney Trees's plea of guilty as follows:
1. in the HLEP tree removal offence a fine of $30,000;
2. in the tree removal offence a fine of $30,000; and
3. in the tree protection offence a fine of $18,750.
1. After the application of the totality principle, the penalties for the commission of the tree removal offence and the tree protection offence should be reduced to $15,000 and $10,000, respectively.
2. This brings the total fine imposed to $55,000.
Orders
1. In conformity with the reasons given above, the Court makes the following orders:
Proceeding 2020/275126
1. Sydney Trees Excavation and Demolition Pty Ltd is convicted as charged;
2. Sydney Trees Excavation and Demolition Pty Ltd is fined the sum of $30,000;
Proceeding 2020/275127
1. Sydney Trees Excavation and Demolition Pty Ltd is convicted as charged;
2. Sydney Trees Excavation and Demolition Pty Ltd is fined the sum of $15,000;
Proceeding 2020/275128
1. Sydney Trees Excavation and Demolition Pty Ltd is convicted as charged;
2. Sydney Trees Excavation and Demolition Pty Ltd is fined the sum of $10,000;
Proceedings 2020/275126, 2020/275127, and 2020/275128
1. pursuant to s 257B of the Criminal Procedure Act 1986 Sydney Trees Excavation and Demolition Pty Ltd is to pay the Council's costs of the proceedings as agreed or assessed under s 257G of that Act; and
2. the exhibits are to be returned.
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Decision last updated: 07 July 2021