Land and Environment Court of New South Wales CITATION : Parramatta City Council v Sua trading as Foxy Tree Services [2010] NSWLEC 93 PROSECUTOR PARTIES : Parramatta City Council DEFENDANT Faitala Fiso Sua t/as Foxy Tree Services FILE NUMBER(S) : 50010 of 2010; 50011 of 2010 CORAM: Pain J KEY ISSUES: PROSECUTION :- sentence for plea of guilty - tree clearing in breach of tree preservation order on private land by tree lopping contractor - objective and subjective factors - appropriate penalty Crimes (Sentencing Procedure) Act 1999 s 3A, 21A, 22 Environmental Planning and Assessment Act 1979 s 5(a)(ii), 125(1) LEGISLATION CITED: Fines Act 1996 s 6, 10 Local Government Act 1993 Parramatta Local Environmental Plan (2001) Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Environment Protection Authority v Barnes [2006] NSWCCA 246 Holroyd City Council v Skyton Developments Pty Limited [2002] NSWLEC 32; (2002) 119 LGERA 225 Johnson v R [2004] HCA 15; (2004) 205 ALR 346 CASES CITED: Manly Council v Taheri [2008] NSWLEC 314 Parramatta City Council v Cheng [2010] NSWLEC 94 Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 Sutherland Shire Council v Nustas [2004] NSWLEC 608 R v Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Willoughby City Council v P and V Masonry Pty Limited [2003] NSWLEC 312 DATES OF HEARING: 8 June 2010 DATE OF JUDGMENT: 10 June 2010 PROSECUTOR Mr T Howard SOLICITOR LEGAL REPRESENTATIVES: Storey & Gough DEFENDANT Mr A Siddque (solicitor) SOLICITOR Grays Legal JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Pain J 10 June 2010 50010 of 2019; 50011 of 2010 Parramatta City Council v Sua (t/a Foxy Tree Services) JUDGMENT 1 Her Honour: The Defendant, Mr Sua, has pleaded guilty to two charges that on 21 October 2008 he committed an offence under s 125(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) in that he cut down three trees in breach of a tree preservation order (TPO) made under the Parramatta Local Environmental Plan (2001) (charge matter no 50010 of 2010) and lopped one tree (a separate charge matter no 50011 of 2010) being acts forbidden to be done under the EP&A Act. The owner of the property where the trees were cut down and lopped, Ms Cheng, has been charged with the same offences. The matters were heard together. It was agreed that apart from the Statement of Agreed Facts (the SOAF) the evidence in one matter would be evidence in all matters. Separate judgments have been prepared for each Defendant. 2 The maximum penalty applicable for such an offence is $1.1 million. As Mr Sua has pleaded guilty the Prosecutor can be considered to have proved the essential elements of the offence. It is now necessary to sentence Mr Sua. The offence is one of strict liability so that no mental element forms part of the elements of the offence. Facts 3 The parties have agreed a SOAF as follows: 1. The Defendant is, and at the time of the commission of the offences was, the operator of a tree contracting business and the owner of its registered business name, "Foxy Tree Services". 2. At the time of the commission of the offences, Lot 39 in DP30464 known as 27 Maple Crescent, Ermington ("the Land") was owned and occupied by Robyn Merie Cheng ("the Owner"). 3. The Prosecutor is a council constituted for the area of the City of Parramatta ("the Parramatta LGA") under the Local Government Act 1993 (NSW). It is a body politic of the State with perpetual succession and the legal capacity and powers of an individual. 4. The Land is situated within the Parramatta LGA. . 5. At all relevant times, the Parramatta Local Environmental Plan 2001 ("PLEP") applied to the Land, which at all relevant times was zoned Residential 2(a) under PLEP. 6. Clause 33 of PLEP provides, and at all relevant times provided, as follows: "33. A person must not ringbark, cut down, top, lop, remove, injure, poison, or wilfully destroy any tree or indigenous vegetation, or add soil or carry out drainage works around the base of a tree or in bushland, unless authorised to do so by: (a) a development consent; or (b) a permit issued by the Council; or (c) a provision of a tree preservation order made by the Council that does not require consent or such a permit for the activity concerned". 7. As at the date of the commission of the offences, prior to the offences being committed, there were three (3) Corymbia citriodora and a Eucalyptus sp tree ("the subject trees") located in the front yard of the Land. The Corymbia citriodora tree which was located closest to the existing dwelling on the Land had grown to a height of approximately 15 to 18 metres. Each of the other Corymbia citriodora trees and the Eucalyptus sp tree had grown to a height of in excess of 5 metres. 8. At 4:30pm on 21 October 2008, Ryan Bollard, a Landscape Tree Management Officer employed by the Prosecutor, attended the Land. At that time he observed a number of tree contractors, including one (1) climber who was in the tree canopy of the large Corymbia citriodora which was located closest to the dwelling on the Land. The climber was in the process of lopping that tree with the intention of cutting it down (the process being halted by the intervention of Mr Bollard). . Mr Bollard also observed that the other two (2) Corymbia citriodora trees and the Eucalyptus sp tree had been cut down. Mr Bollard at that time took several photographs of his observations. 9. The Defendant authorised the lopping and cutting down of the subject trees on 21 October 2008. 10. Whilst at the Land, Mr Bollard spoke to the Defendant who admitted that he had been contracted by the Owner to remove the subject trees. The Defendant also admitted that he did not have a permit from the Prosecutor authorising the cutting down of the subject trees. 11. On 23 October 2008, the Defendant was interviewed about the cutting down and lopping of the subject trees by officers of the Prosecutor. The Defendant cooperated fully at this time by voluntarily taking part in the interview after having been cautioned in the usual terms. During the interview, the Defendant admitted that he had been door-knocking for business and had provided the Owner with a quote to remove the subject trees. He advised that he had quoted on the job in the morning and had organised a tree contracting crew to carry out the removal of the subject trees that afternoon. 12. As at the date of the commission of the offence, the general prohibition set out in clause 33 of PLEP applied to the tree works carried out with the Defendant's authority and none of the exceptions to that prohibition had any relevant application. In particular: a. there was no development consent in force which authorised the lopping or cutting down of the subject trees; and b. the Prosecutor had not issued any permit authorising the lopping and cutting down of the subject trees; and c. the Prosecutor's tree preservation order made no provision for the lopping or cutting down of the subject trees without first obtaining a development consent or a permit from the Prosecutor.. 13. Prior to the subject trees being lopped and cut down, the Defendant did not enquire of the Owner as to whether the Owner or any other person had obtained a Development Consent or a permit from the Prosecutor to authorise the cutting down or lopping of the subject trees. Evidence 4 The evidence in these proceedings and those of Ms Cheng the landowner is the same (but for the SOAF which must necessarily reflect the different roles of each Defendant in relation to the offences) but the issues in relation to Mr Sua are limited given the SOAF encapsulates the principal facts relevant to his matter. As there is less dispute about aspects of his evidence it is unnecessary to repeat all the evidence in this judgment. The evidence that is repeated here is the same as that in Parramatta City Council v Cheng [2010] NSWLEC 94. Prosecutor's evidence 5 An affidavit affirmed by Ryan Bollard, Council officer, on 23 December 2009 states that he attended the property at Ermington on 21 October 2008 at 4.30 pm in response to a complaint received by the Council that trees were being removed. Mr Bollard states that after Ms Cheng identified herself as the property owner, he asked if she had a permit for the work. Mr Bollard states that Ms Cheng replied "no". Mr Bollard asked Ms Cheng if she had organised for the tree removal, and states that Ms Cheng replied "yes". Ms Cheng told him she was concerned that the tree was causing damage to her house. Mr Bollard states that he told Ms Cheng there was a TPO and that an application for consent was required for tree removal. He states that Ms Cheng said to him she wanted the trees removed and these people could do it straight away. 6 Matthew Wareing, the Council Landscape Tree Management Officer, swore an affidavit dated 16 December 2009 deposing to an interview conducted with Mr Sua at the Council chambers on 23 October 2008. Defendant's evidence 7 Mr Sua gave oral evidence at the hearing. He stated that he arrived in Australia in 1986 and established a tree lopping business in 2002 called Foxy Tree Services. The business solicits tree lopping jobs by word-of-mouth and door-knocking activities. On 21 October 2008 he was contacted by Ms Cheng after she was forwarded his details following a door-knock by an employee in the Whalan area. Ms Cheng showed Mr Sua one large tree near her house which was causing structural damage to it. Mr Sua gave Ms Cheng a quotation, which was agreed, and he commenced work that day. He stated the quotation was for $4000 or $8000. He stated that there were also two smaller trees less than 10m tall under the larger tree, and he said that they would have to be removed to provide safe access to the larger tree. He also considered these trees were near electrical wires. 8 Mr Sua stated that he understood the usual practice is that property owners must get council consent for tree lopping works, and that he also knew he has a responsibility to check that consent has been granted. Mr Sua stated that he did not ask Ms Cheng if consent was given by Council when they first met. After Mr Bollard from the Council came to the property after work had commenced he told Ms Cheng he would apply for a permit from the Council. Mr Sua stated that he knows he has done a wrong thing and apologises to the Court, to the Council and to Ms Cheng. His son now runs the business. It remains registered in Mr Sua's name. He works up to two days per week, and is paid approximately $500 for a week. 9 In cross-examination by the Prosecutor's counsel, Mr Sua stated that he understood the written application process required by councils for tree lopping and removal. He stated that it was his understanding that trees less than 10m in height did not require council approval for lopping, or pruning of less than 10 per cent. Mr Sua stated that he had such belief because this was the information that had been provided to him by council staff from the Warringah shire. 10 In cross-examination by Ms Cheng's solicitor, Mr Sua stated that he understands the nature of TPOs. He also stated that he had made no enquiries with Parramatta City Council regarding the Parramatta TPO, and commenced the Cheng job without knowing the details of the Parramatta TPO. Mr Sua described the job at the Cheng premises as a "middle-sized job" and stated that for larger jobs he would seek consent. He stated his opinion that the trees were in dangerous shape and that cracks in the house were caused by the big tree. He assumed Council would approve the removal of the tree because of damage to the house. 11 Mr Sua was shown the affidavit of Matthew Wareing, the Council Landscape Tree Management Officer, dated 16 December 2009 (exhibit F) which sets out the interview with Mr Sua on 23 October 2008. Mr Sua acknowledged that the affidavit was an accurate record of the interview, and stated that "I know it was the wrong thing" to cut down the trees. Mr Sua stated that the work crew had been stopped by Mr Bollard (Council's Landscape Tree Management Officer), and that he was not at Ms Cheng's address at that time but arrived later following a telephone call from his son who was working on the site. 12 Mr Sua recalls having a conversation with Ms Cheng and Timothy Cheng after Mr Bollard had left the site, and acknowledged he said words to the effect that "all will be OK, God will look after us". He stated that he did not provide a written quotation and recalled after prompting that the original quotation was $6,700. Mr Sua stated that he met Ms Cheng on another occasion in Whalan to get Ms Cheng's signature on the application paperwork for the tree removal, and recalled telling Ms Cheng that maybe Council would just give a warning for breaching the TPO. Ms Cheng 13 The affidavit sworn by Ms Cheng dated 30 March 2010 states that she reduced her fulltime employment to three days per week as a primary school teacher in late 2007 to allow her to support and assist her parents, especially in attending their frequent medical appointments. She states that she was experiencing significant stress and bouts of depression associated with marital and property settlement issues. Ms Cheng supports the statement with a report from her general medical practitioner annexed to her affidavit. Ms Cheng also annexed documents from her insurance agency and a contract repair service for a claim for damage sustained to her home in February 2008 and July 2008 due to falling branches from trees near her house. On or about 11 October 2008 Ms Cheng visited a friend, Steve Dunn, and during that visit provided her contact details to a tree contractor door-knocking for business in anticipation of having a quotation organised for work at her property in Ermington. About a week later, via telephone, Ms Cheng organised an early morning appointment with Mr Sua for the purpose of getting a quotation before taking her mother to the hospital to visit her father. 14 When Mr Sua visited her property early on that day (21 October 2008) at some time before 8.30am, Ms Cheng gave him a comprehensive inspection of the front yard including a big tree which was causing structural problems to her house. Ms Cheng states that Mr Sua said he would take care of everything, and that he suggested the removal of additional trees to get access to the larger tree. Ms Cheng states that she told Mr Sua that she did not have Council permission. Ms Cheng also states that Mr Sua repeated that he would take care of everything and gave a verbal quotation for $6,700, indicating the funds would be directed to a church-building effort of his congregation. After two o'clock that afternoon three or four men arrived with trucks and tree lopping equipment, followed by more men. Ms Cheng states that she was intimidated by the number of people in her front yard and noted that her neighbours were having difficulty with street access because trucks were all over the street. Ms Cheng states that she was in a panic and hid in her house. 15 Ms Cheng recounts that she was in a distressed state when she was visited by a friend, Christina Hurley, later in the afternoon. Ms Cheng states that she was upset that Mr Sua was not present, and states that she had made a poor decision when she agreed with Mr Sua to do the job. Ms Cheng also recounts that her son telephoned her at about the same time that a Council officer (later indicated as Ryan Bollard) directed the workers to cease work. Ms Cheng states that she asked her son to stay on the telephone when Mr Bollard approached the house to ask about Council permission for the work and to subsequently advise her that she could be liable for prosecution. Ms Cheng states that Mr Bollard advised her that a TPO required an application for consent to remove trees, and that work must cease. Ms Cheng disputes the account of her verbal exchanges with Mr Bollard as these appear in his affidavit of 23 December 2009. Ms Cheng states (par 15) that Mr Sua never advised her when his team would be ready to commence work. 16 Ms Cheng states that on or about 23 October 2008 she received a voice-mail message from Mr Sua, and later met with him at Steve Dunn's house in Whalan for the purpose of signing a tree removal application form which Mr Sua would lodge at the Council in relation to the big tree damaging her house. Ms Cheng states that she contacted the Council on 9 March 2009 for an update on the tree removal application and was advised that a structural engineer's report was required. A structural engineer's report was provided to Council in May 2009. A further tree removal application was lodged on 29 May 2009 as the original application had expired. This application, and subsequent Council approval dated 2 November 2009 for the removal of four trees including the big tree damaging the house, is annexed to the affidavit. A number of photographs are annexed which show structural damage to the house. Ms Cheng states that she decided to suspend her employment for the 2009 school year without pay because of her circumstances, including the need to continue supporting her parents with their health requirements. She states she is sorry for doing the wrong thing, and was shocked to be summonsed by Council after a year of assessment and final permission to remove the big tree. 17 Ms Cheng also gave oral evidence. She is the owner of the premises and is employed as a school teacher. Ms Cheng stated that she told Mr Sua early on 21 October 2008 when he came to give a quotation that she did not have Council permission to cut down any trees, and that he said the quotation would include getting consent. She stated that the conversation she had that morning with Mr Sua about the proposed tree services included mulching and stump grinding and that Mr Sua "would take care of everything". When the very large work team arrived on the afternoon of 21 October 2008 Ms Cheng stated that she hid in her house because she had had a very distressing day. She stated that she had not been approached by Council after the event to provide a statement. Ms Cheng read a prepared statement to the Court (which was later tendered as exhibit 1) in which she stated she was experiencing difficult personal and emotional circumstances at the time of the event, and was sorry for her lack of attention to the situation as it arose on 21 October 2008. She is embarrassed that she did not go out and confront the workmen on her property in the afternoon. Ms Cheng also stated that she has replanted the area where trees were removed with two crepe myrtles and a frangipani to add to her otherwise extensive garden and arbor. 18 In cross-examination by the Prosecutor Ms Cheng stated that she did not expect the work team to arrive on the same day as the quotation had been negotiated. She stated that she had spoken with Mr Bollard on the afternoon of 21 October 2008 in her home and that Mr Bollard questioned her about the lack of consent, her contractual arrangement with Mr Sua for tree lopping, and her concerns about building damage from the large tree. Ms Cheng acknowledged that Mr Bollard drew her attention to the local TPO and the possibility of prosecution for breach of that TPO. She stated she had previously received a letter from her insurance company regarding an earlier insurance claim which confirmed damage to her home had been caused by falling tree branches. 19 On cross-examination by Mr Sua's solicitor Ms Cheng stated that it was agreed that the smaller trees would be removed to get access to the larger tree. She also stated the quotation was for the large tree. She stated her belief that Mr Sua's agreement to "get everything done" included getting the Council consent to cut down the trees. She stated she agreed to have the work done because it would be "one less thing on her plate" and the quotation given by Mr Sua was so good. 20 In the judgment concerning Ms Cheng, Parramatta City Council v Cheng, I refer to matters in dispute in the evidence at [22] in relation to when the issue of a lack of a permit to remove trees was raised on 21 October 2008. There was a difference in the evidence of Ms Cheng and Ms Sua on that matter. That issue was relevant to whether I took into account a matter in mitigation for Ms Cheng. Mr Sua accepts that he should have seen a permit from the Council before removing the trees. When that matter was specifically raised on 21 October 2008 is not material to any of the matters raised by his solicitor on his behalf and I do not therefore need to further consider that issue here. 21 Photographs of the site before and after the offences occurred were also tendered. The TPO was also tendered and requires Council permission to cut down trees with a height equal to or exceeding 5m. Relevant sentencing considerations 22 Section 3A of the Crimes (Sentencing Procedure) Act 1999 (the CSP Act) sets out the purposes of sentencing. Section 3A provides: The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. 23 Of particular relevance in this matter is (a) (b) (c) (e) and (f). The CSP Act (in particular, Pt 3 Div 1) contains provisions relevant to sentencing procedures. Section 21A of the CSP Act sets out aggravating, mitigating and other factors to be taken into account in sentencing. 24 In Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [163] and Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [110] relevant factors to determine the objective gravity of an offence were identified for offences under the EP&A Act. The factors include the maximum penalty, the objective harmfulness of the defendant's actions, the reasons for the commission of the offence and the state of mind of the offender. 25 The relevant statutory context for sentencing occurs includes the EP&A Act's objectives of the promotion and orderly and economic use and development of land, s 5(a)(ii), and the protection of the environment, s 5(a)(vi). The protection of vegetation is part of that statutory regime. Prosecutor's submissions 26 While there are two charges, these arise from the one course of conduct and should be dealt with together under the totality principle. The objective gravity fixes the upper limit of a sentence which should never exceed that which can be justified as appropriate in light of the gravity of the crime, Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465. The unlawful removal of trees in Sydney urban areas undermines the regulatory system for control of development and reduces urban amenity. The harm caused was relatively minor in nature, the trees being of moderate size and not having particular heritage significance. The larger tree near the house which was lopped was later removed with the permission of the Council as it was located close to the house on the land and was causing some structural damage to parts of the house. 27 Mr Sua's business is tree lopping and he must be taken to be aware that Council permission is required before a tree can be cut down. His evidence that he was raising money for his church is accepted which takes the object of commercial gain outside the desire for personal financial gain and suggests he is a community-minded person. The Prosecutor submitted the offence committed was at the low end of seriousness for this type of offence. Defendant's submissions 28 Mr Sua was contracted to undertake tree removal by Ms Cheng and did so. The big tree near the house was damaging the house and he considered it was dangerous. The Council later gave consent for it to be removed. He also gave evidence that other trees were leaning near the electricity wires. The trees did not have particular significance. The commission of the offence is minor. Mr Sua is truly remorseful and has fully co-operated with the Prosecutor including making a voluntary statement after being cautioned. Objective circumstances of the offence 29 The Court is to have regard to the maximum penalty applicable, as this is an expression of the seriousness Parliament attributes to the offence: see Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 and 701 respectively that: The task of a court is to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided… ..the more serious the lasting environmental harm involved the more serious the offence and, ordinarily, the higher the penalty. 30 As recognised by Bignold J in Willoughby City Council v P and V Masonry Pty Limited [2003] NSWLEC 312 there is a broad spectrum of matters which can give rise to an offence under s 125 of the EP&A Act. These offences are at the less serious end of that spectrum. 31 The level of environmental harm is minor. The trees cut down were not of particular significance but would have contributed generally to the streetscape in the immediate local area. The big tree near the house has since been permitted to be removed due to the structural damage it was inflicting on Ms Cheng's house. 32 In relation to Mr Sua's reasons for the commission of the offence, he was engaged in obtaining work for his tree lopping business which he has worked in for several years. His evidence is that he was raising funds for his congregation to build a church. To the extent that he was not seeking to raise money for himself that is a mitigating factor to a limited extent, as the nature of his business remains that of tree removal. 33 In relation to his state of mind on the day of the offences, his evidence is that he knew he needed to see that the Council had given consent for the removal of the large tree near the house and went ahead with the work of getting that tree lopped in preparation for its removal without ensuring that there was such permission. His actions in that regard were deliberate. In relation to the other trees he caused to be removed by employees of the business, his oral evidence is that he considered trees under 10 m could be removed without Council permission, an erroneous belief not based on having made any inquiries at the Council about controls on tree removal. In regard to those trees his actions were careless at best. General deterrence 34 Sentences made in relation to environmental offences must embrace powerful considerations of general deterrence: see Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357, per Badgery-Parker J at 367. In Axer, Mahoney J stated at 359: The quantum of the fines which the legislation allows to be imposed has no doubt been fixed not merely to indicate the seriousness with which such pollution is regarded but also to deter those engaged in such activities and to procure that they will take the precautions necessary to ensure that it does not occur. This is an important consideration in this matter given that the preservation of trees in an urban environment is addressed by the making of TPOs by local councils in most metropolitan areas. The importance of preserving urban vegetation has been referred to in a number of cases, for example, Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349 and Manly Council v Taheri [2008] NSWLEC 314. Specific deterrence 35 Consideration as to whether specific deterrence for this Defendant is necessary arises. Mr Sua was engaged in the business of tree lopping at the time of the offences and continues to be so on a part-time basis. Mr Sua gave oral evidence about his understanding of council tree controls generally and his knowledge appeared poor given that at the time of the offence he was engaged in the business of tree lopping full time. His evidence was that he had made no inquiries of the Council and had no specific knowledge of the relevant controls which apply in the Council area. The TPO has the effect that trees over 5m in height require a permit from the Council before their removal. His business is now operated largely by his son but he continues to be involved part-time and the business continues in his name. The events giving rise to the offences demonstrate the importance of a proper understanding of the controls for tree removal in a particular local council area by those engaged in the business of tree removal. 36 Further Mr Sua caused the work to be done by employees of his company without checking that the necessary Council approval had been obtained. Providing a quotation in the morning and doing substantial work involving over ten workers in the afternoon of the same day is very unlikely to enable necessary Council approval to be obtained. Specific deterrence is a relevant factor in this case as there was no clear evidence from Mr Sua suggesting to the Court that there would not be a further similar offence committed. He acknowledged that he would be sure to check that the relevant permit had been obtained in the future. He knew on the day of these offences that it was necessary for that permission to be obtained before cutting down the big tree at least. He had already been in the tree lopping business since 2005 and should have known better. He quoted $6,700 to do the work and on the evidence has been paid at least $4,000 by Ms Cheng. The level of penalty must be more than nominal so that there is a financial disincentive against the commission of such an offence. Evenhandedness 37 A principle of sentencing is consistency of sentencing so that like cases should receive like penalties. Consideration of similar cases can be of assistance in informing the range of penalty which should be considered, subject always to the need to consider the individual circumstances of a particular case. There is a useful survey of cases in Cameron v Eurobodalla Shire Council at [105]. All of the cases appear to have more serious objective circumstances than this matter. The least serious such as Holroyd City Council v Skyton Developments Pty Limited [2002] NSWLEC 32; (2002) 119 LGERA 225 and Sutherland Shire Council v Nustas [2004] NSWLEC 608 imposed penalties of $15,000 and $11,000 respectively. Some cases referred to impose penalties for events before 2000 when the maximum penalty increased from $110,000. In Cameron a tree was removed from a public reserve and another lopped to enhance views from the defendant's house. In an appeal from the local court, this Court upheld the penalty of $10,000 imposed. 38 In Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 the importance of persons engaged in the tree lopping business being aware of relevant council controls and complying with these was emphasised. In that case two trees on private land the subject of development consent for subdivision but without consent for tree removal were removed by an arborist at the request of the landowner. A penalty of $11,000 was imposed. Mitigating factors 39 There are a number of mitigating factors that should be taken into account to reduce any penalty, as referred to in s 21A(3) of the CSP Act. Guilty plea (s 21A(3)(k) and s 22 of the CSP Act) 40 Mr Sua pleaded guilty at the earliest opportunity, being the first return date of the summonses on 5 March 2010. A plea of guilty entitles the defendant to a discount in penalty under s 22 of the CSP Act in the range of 10-25 per cent: R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; and R v Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300. Contrition and remorse (s 21A(3)(i) of the CSP Act) 41 I accept that Mr Sua has shown complete contrition and remorse for the offences including on the day of the offences. Cooperation with the Prosecutor (s 21A(3)(m) and s 23 of the CSP Act) 42 The Prosecutor submitted and I accept that Mr Sua cooperated with the Prosecutor in providing a statement. Lack of prior record (s 21A(3)(e) of the CSP Act) 43 Mr Sua has no prior convictions. Section 6 Fines Act 44 Under s 6 of the Fines Act 1996, in the exercise of its discretion to fix the amount of any fine, the Court is required to consider such information regarding the means of the accused as is reasonably and practicably available for the Court's consideration and such other matters as are relevant, in the opinion of the Court, to the fixing of that amount. 45 Mr Sua's solicitor submitted that s 6 of the Fines Act should be considered in relation to the imposition of any fine. The only information about his financial means is that he gave oral evidence that he now earned about $500 per week working two days in the business. I do not know if he has other sources of income. The opportunity to provide additional information such as income tax returns and bank statements was provided to Mr Sua but not availed of. I do not therefore have a comprehensive understanding of his financial position in order to be able to take lack of means into account in the setting of a penalty. 46 The totality principle should apply to the offences as they are part of the same course of conduct, as the Prosecutor submitted. The totality principle is a well-established principle of sentencing to be applied by the Court when sentencing an offender for more than one offence. It requires a judge to determine an appropriate sentence for each offence, consider questions of cumulation or concurrence and then, when reviewing the aggregate sentence, consider whether it is "just and appropriate"; see Johnson v R [2004] HCA 15; (2004) 205 ALR 346 at [18]. 47 Mr Sua is liable to pay the Prosecutor's costs of $10,000. These are substantial in the context of a prosecution for relatively minor offences in this Court. Under Environment Protection Authority v Barnes [2006] NSWCCA 246 the amount of costs can be considered as relevant where it is considered these could impact on the ability of a Defendant to pay a penalty. 48 The appropriate penalty in light of the objective and subjective matters referred to above is $6,000 for both offences. Application for time to pay a fine can be made to the Registrar of this Court under s 10 of the Fines Act 1996. Orders 49 The Court orders that in matter no 50010 of 2010: 1. The Defendant is convicted of the offence with which he is charged. 2. The Defendant is fined the sum of $5,500 to be paid to the Registrar of the Court within 28 days of today's date. 3. The Defendant must pay the Prosecutor's costs of the proceedings as agreed or assessed. 4. The exhibits may be returned. 50 The Court orders that in matter no 50011 of 2010: 1. The Defendant is convicted of the offence with which he is charged. 2. The Defendant is fined the sum of $500 to be paid to the Registrar of the Court within 28 days of today's date. 3. 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.