Land and Environment Court of New South Wales CITATION : Penrith City Council v Re-Gen Industries Pty Ltd [2000] NSWLEC 82 PROSECUTOR: Penrith City Council PARTIES : DEFENDANT: Re-Gen Industries Pty Ltd FILE NUMBER(S) : 50081 of 1999 CORAM: Talbot J KEY ISSUES: Prosecution :- effect of s 10 Crimes (Sentencing Procedure) Act 1999 in contrast to former s 556A Crimes Act 1900 Environmental Planning and Assessment Act 1979 s 76A LEGISLATION CITED: Crimes Act 1900 s 556A Crimes (Sentencing Procedure) Act 1999 s 10 CASES CITED: Cooper v Coffs Harbour City Council (1997) 97 LGERA 125; R v Ingrassia (1996) 41 NSWLR 447 DATES OF HEARING: 20/04/2000, 26/04/2000, 27/04/2000 DATE OF JUDGMENT: 04/28/2000 PROSECUTOR: Mrs J C Kelly (Barrister) SOLICITORS: Gadens Lawyers LEGAL REPRESENTATIVES: DEFENDANT: Mr M A Bradford (Barrister) SOLICITORS: Michael Siderowitz & Co JUDGMENT: IN THE LAND AND Matter No. 50081 of 1999 ENVIRONMENT COURT Coram: Talbot J OF NEW SOUTH WALES Decision Date: 28 April, 2000 Penrith City Council Prosecutor v Re-Gen Industries Pty Ltd Defendant REASONS FOR JUDGMENT 1. The defendant has entered a plea of guilty to the charge that on and between 29 April 1999 and 5 May 1999 it committed an offence against the Environmental Planning and Assessment Act 1979 ("the EP&A Act") in that contrary to s 76A it carried out development without first having obtained development consent by clearing land at Luddenham Road, St Marys, including the removal of trees, shrubs and undergrowth. 2. The defendant carried out the work under the instruction of the company Camelot Grange Pty Ltd and Norman Munroe Mathie who were respectively the defendants in matter No 50082 of 1999 and matter No 50080 of 1999 in which I delivered an ex tempore judgment on 25 February 2000. 3. The general facts are set out with some detail in my ex tempore judgment and particular reference can be made to pars 12 to 16, 19 to 22, 25 to 27 and 29 to 33. 4. It is agreed that the felling of the trees was carried out by an employee of the present defendant between 23 April 1999 and 1 May 1999. 5. It is further agreed that the employee, Mr Andrew Thomas, was instructed by Mr Joshua Taylor on behalf of Camelot Grange Pty Ltd to clear trees and shrubs from the land. 6. The defendant was hired to do the work by Mr Mathie on behalf of Camelot Grange Pty Ltd under an arrangement whereby it was agreed that payment for labour and machinery would be on an hourly basis. 7. Mr Peter Richard Callaghan, the principal of Re-Gen Industries Pty Ltd told the Court that he had the following conversation with Mr Mathie on 8 April 1999:- CALLAGHAN: Before clearing starts we need permission from the Council. MATHIE: Its [sic] OK. I have had Dr Martens out on site and he has directed us on what we can and can't do. CALLAGHAN: Who is he? MATHIE: He's the consultant who specialises in environmental conservation and planning. CALLAGHAN: Well I just want to be sure that everything is approved. MATHIE: Look, you don't have any problems whatsoever about that, I have all of this under control. 8. Although Mr Callaghan told the Court it was not his usual practice to proceed with clearing without first perusing the consent of council, he made an exception in this case because of the nature of the contractual arrangement. Under the arrangement he and his employee followed specific instructions and were paid according to the time spent on the job. He told the Court that the Camelot contract got under his guard as it was the first time that the company had been engaged under a hire contract rather than a lump sum contract. In view of that circumstance and in view of Mr Mathie's response to his questions during the meeting at the site, it seemed to Mr Callaghan that it was unnecessary for him to sight an approval from the council as this was solely a matter for Camelot. 9. Since this occurrence the company has inserted a fixed term in its form of contract which requires an approval to be produced for inspection before any work is commenced. 10. Mr Callaghan and his employee fully cooperated with the prosecutor. Work ceased immediately after the council officers requested them to stop. The defendant further cooperated with the prosecutor in the generation of a statement of agreed facts. The entering of a plea was deferred until the proceedings against Camelot Grange Pty Ltd and Mathie were concluded. Immediately following judgment in those matters a plea of guilty was entered. 11. The company has never been before the Court on any previous occasion. 12. The primary work of the company is the regeneration and recycling of vegetation as part of the process of developing land but the company itself is not a developer. 13. Mr Bradford, who appears for the defendant, submits that there is a clear distinction between a contractor engaged on an hourly basis to do particular work and a developer who is causing the work to be carried out for the particular purpose of an enterprise for wider commercial purposes. 14. The Court has already made an order for Mathie and Camelot Grange Pty Ltd to carry out restoration works according to a Work Practice Plan formulated by Dr Daniel Martens which has also been adopted by the Water Administration Ministerial Corporation pursuant to s 22G of the Rivers and Foreshores Improvement Act 1948. 15. Although the number of trees removed was over 240 in number, the actual area cleared was 2.72 hectares, and the area cleared of trees is more likely to have been about one and a quarter hectares. The majority of the vegetation removed can be categorised as immature saplings from a site previously disturbed by its former use as a golf course. However, several large trees were also destroyed. 16. The Court accepts that the persons who carry the primary responsibility for the commission of this offence are Mathie and Camelot Grange Pty Ltd who, as I found on the previous occasion, participated in a blatant criminal act. 17. The offence is a serious one when regard is had to the maximum penalty of $110,000 that may be imposed upon a corporation. However, due regard must be had to the culpability of each defendant and the individual circumstances which led to the commission of the offence. 18. The Court is satisfied that if a penalty is to be imposed on this defendant then it should be at the lowest end of the range, indeed nominal. The effect of s 10 Crimes (Sentencing Procedure) Act 1999 19. This is the first occasion that s 10 of the Crimes (Sentencing Procedure) Act 1999 ("the 1999 Act") has been considered in this Court. It replaced the well known s 556A of the Crimes Act 1900 ("the 1900 Act") as from 3 April 2000. 20. In the light of the submission made on behalf of the defendant that the provisions of s 10 should be applied in this case, both parties were given leave to bring in written submissions to address the prospect of any changes brought about by the amendment of the legislation. 21. Section 10 of the 1999 Act relevantly provides:- (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make either of the following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond. (2) An order referred to in subsection (1)(b) may be made if the court is satisfied: (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to release the person on a good behaviour bond. (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. 22. Relevantly, s 556A of the 1900 Act, which s 10 replaces, provided:- (1) Where any person is charged before any court with an offence punishable by such court, and the court thinks that the charge is proved, but is of opinion that, having regard to the character, antecedents, age, health, or mental condition of the person charged, or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed, or to any other matter which the court thinks it proper to consider, it is inexpedient to inflict any punishment, or any other than a nominal punishment, or that it is expedient to release the offender on probation, the court may, without proceeding to conviction, make an order either: (a) dismissing the charge; or (b) discharging the offender conditionally on his or her entering into a recognizance, with or without sureties, to be of good behaviour and to appear for conviction and sentence when called on at any time during such period, not exceeding three years, as may be specified in the order. 23. Both the prosecutor and the defendant identify that the only grammatical distinction of any real significance is the omission of the word "or" between subs (3)(a), (b), (c) and (d) in s 10. 24. The reference to the replacement of s 556A in the relevant second reading speeches is cursory. 25. Mrs Kelly for the prosecutor suggests that the use of both "and" and "or" within other subsections of s 10 and the use of clear language indicates that the subclauses are alternatives. The use of different language in the new provision, according to Mrs Kelly, indicates a deliberate purpose for doing so, that is, that the new provision be interpreted differently from its predecessor. The failure to use the word "or" in s 10(3) indicates that all the matters are to be taken into account "in deciding whether to make an order referred to in subsection (1)" . Accordingly, she says if the offence is not trivial then regardless of whatever other circumstances may be relevant pursuant to s 10(3)(a), (c) and (d), the defendant cannot be given the benefit of the provision. 26. Mr Bradford cites the observations made by Gleeson CJ in R v Ingrassia (1996) 41 NSWLR 447 at 449 to make a submission that the old s 556A, and consequently the revamped version in the 1999 Act, may apply to offences which cannot properly be regarded as trivial or which are commonly dealt with on a summary basis. I do not find the observations made by the then Chief Justice as particularly helpful in the present context. 27. If Parliament intended that the Court should have regard to each one of the factors set out in subsection (3) of s 10, then on a strict construction it could be essential for the nature of the offence to be trivial. 28. It is not necessary in the circumstances of this case to make a final determination as to the impact of the changes introduced by s 10, but the absence of a clear indication in the legislation or in the second reading speech that there was an express intention to change the law suggests the more acceptable approach would be to regard the effect of s 10 as being the same as s 556A which it replaces. The altered set out of the provision, but in almost exactly the same terms, arguably points to no more than the benign purpose of additional clarity. 29. Irrespective of what approach should be taken, the Court, although satisfied about the factors referred to in subsection (3)(a), is not prepared to regard an offence which resulted in the removal of over 240 trees as trivial. Furthermore, notwithstanding that there were some extenuating circumstances so far as the directions under which the defendant carried out the work are concerned, nevertheless, Mr Callaghan recognises that he did not act as prudently as he might have in pursuing the practice of insisting upon the production of a written approval. 30. In Cooper v Coffs Harbour City Council (1997) 97 LGERA 125, the Court of Criminal Appeal was asked to consider the application of s 556A of the 1900 Act in respect of an offence against s 125(1) of the EP&A Act which involved the removal of trees from a development site without the approval of the respondent council. Noting that the offence was not a trivial or technical one and there was nothing in the circumstances in which it was committed which justified dealing with it pursuant to s 556A of the 1900 Act, Howie AJ who delivered the judgment of the Court nevertheless recognised that the section could be applied to such an offence. 31. In the present case, the actions of the defendant did not result in a technical, unintended or minor breach of the legislation. The consequences for the environment can only be regarded as serious, notwithstanding that works are to be carried out in reparation. Although the culpability of this defendant is minor, it is not sufficiently low to justify the Court not proceeding to conviction. 32. A primary purpose of imposing a penalty is to send a message to the community as a general deterrence against committing an offence of this character. 33. In sentencing this defendant it is appropriate to compare the conduct of the company through the agency of its officers and employees with the conduct of the co-offenders, Mathie and Camelot Grange Pty Ltd. 34. There can be no doubt in the present circumstances that disparate sentences are justified. 35. After having regard to the whole of the circumstances, including the contractual arrangements under which the defendant undertook the work and the previous good record of the company, the Court proposes nevertheless to proceed to conviction and to impose a nominal penalty. Orders 36. The formal orders of the Court are:- 1. The Court finds the offence proved. 2. The defendant is convicted. 3. The defendant is ordered to pay a fine in the sum of $750. 4. The defendant is ordered to pay the costs of the prosecutor in such sum as may be agreed or otherwise assessed in accordance with the regulation made pursuant to the Land and Environment Court Act 1979. 5. The exhibits may be returned. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.