Hunters Hill Council v Lazarus‑Hall [2022] NSWLEC 25

Land and Environment Court New South Wales

Medium Neutral Citation: Hunters Hill Council v Lazarus‑Hall [2022] NSWLEC 25 Hearing dates: 7 March 2022 Date of orders: 23 March 2022 Decision date: 23 March 2022 Jurisdiction: Class 5 Before: Moore J Decision: See orders at [128] Catchwords: SENTENCE - charge of removing a tree without consent when consent was required - plea of "guilty" by Defendant - agreed facts for sentencing purposes - submissions by the Prosecutor that the Defendant had acted recklessly withdrawn - no factors of aggravation engaged - consideration of potential aggravating factors - consideration of Defendant's subjective factors - extent of contrition and remorse - extent of likelihood of reoffending - other subjective factors favourable to Defendant - need for general deterrence - appropriate starting penalty toward the bottom of the low range for such conduct - plea of "guilty" entered at earliest opportunity - discount of 25% on appropriate starting penalty - submission that the Defendant should be dealt with pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1995 without the recording of a conviction - proposed utilisation of s 10 not opposed by the Prosecutor - Defendant's fear that recording a conviction would impact on her family's ability to relocate overseas - power to order payment for environmental purposes pursuant to s 250(1)(e) of the Protection of the Environment Act 1997 - appropriate to utilise s 10 of the Crimes (Sentencing Procedure) Act 1995 and not enter a conviction - appropriate to order making of a donation for environmental purposes of an amount equal to the penalty appropriate if the Defendant had been convicted - Defendant found guilty but not convicted - Defendant ordered to pay National Trust of Australia (NSW) $15,000 for bushland restoration works - Defendant's family financial circumstances make extended time for payment appropriate - Defendant required to make payment within 90 days - Defendant ordered to pay the Prosecutor's costs as agreed or assessed. Legislation Cited: Criminal Procedure Act 1986, ss 257B and 257G Crimes Sentencing Procedure Act 1999, ss 3, 10, 21A, 22 and 23 Environmental Planning and Assessment Act 1979 Fines Act 1996, s 6 Hunters Hill Local Environmental Plan 2012 Protection of the Environment Operations Act 1997 Cases Cited: Budvalt Pty Ltd v Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2022] NSWCCA 9 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Caralis v Smyth (1988) 65 LGRA 303 Chief Executive, Office of Environment and Heritage v Ausgrid (2013) 199 LGERA 1; [2013] NSWLEC 51 Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd (2013) 199 LGERA 236; [2013] NSWLEC 185 Environment Protection Authority v Barnes [2006] NSWCCA 246 Environment Protection Authority v Terrace Earthmoving Pty Ltd [2016] NSWLEC 158 Environment Protection Authority v Timber Industries Ltd [2001] NSWLEC 25 Environment Protection Authority v Waste Recycling and Processing Company (2006) 148 LGERA 299; [2006] NSWLEC 419 Harris v Harrison [2014] NSWCCA 84 Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 Hunters Hill Council v Carter [2018] NSWLEC 84 Hunters Hill Council v Liu [2018] NSWLEC 108 Markarian v R (2005) 229 CLR 357; [2005] HCA 25 Ostrowski v Palmer (2004) 218 CLR 493; [2004] HCA 30 Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 Re Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622 R v Doan (2000) 50 NSWLR; [2000] NSWCCA 317 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v O'Neill (1979) 2 NSWLR 582 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 383 Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Walden v Hensler (1987) 163 CLR 561; [1987] HCA 54 Category: Principal judgment Parties: Hunters Hill Council (Prosecutor) Tania Lazarus‑Hall (Defendant) Representation: Counsel: T March, barrister (Prosecutor) J McKelvey/R Coffey, barristers (Defendant)