Ku-ring-gai Council v Edgar [2017] NSWLEC 49

Land and Environment Court New South Wales

Medium Neutral Citation: Ku-ring-gai Council v Edgar [2017] NSWLEC 49 Hearing dates: 27 April 2017 Date of orders: 01 May 2017 Decision date: 01 May 2017 Jurisdiction: Class 5 Before: Moore J Decision: Orders at [72] Catchwords: PROSECUTION – cutting down of 74 trees without appropriate consent of Council – absence of consent from owner of or trustee for the land upon which the removed trees were located – plea of guilty – agreed facts demonstrate plea appropriate – extent of environmental harm caused – whether aggravating factor – held to be aggravating factor – tree-cutting was undertaken for financial benefit – further aggravating factor – assessment of seriousness of the offending conduct – offending conduct of moderate seriousness PENALTIES – discount for early plea – no proper basis to apply s 10 of Crimes (Sentencing Procedure) Act 1999 – Defendant to be convicted – need to provide for both specific and general deterrence – indicative starting sentence of $45,000 fine for offence – total discount of 33% (including discount for the early guilty pleas) results in an appropriate penalty of $30,000 PENALTIES – financial circumstances of Defendant – whether discretion to reduce penalty further pursuant to s 6 of the Fines Act 1996 appropriate – adequacy of evidence concerning Defendant's financial circumstances – Defendant with limited income and modest financial means – impact of imposition of order for payment of Prosecutor's costs – appropriate to exercise discretion to reduce penalty further in light of costs order and Defendant's limited financial circumstances – fine of $16,000 imposed Legislation Cited: Crimes (Sentencing Procedure) Act 1999, ss 3, 10, 21A and 22 Environmental Planning and Assessment Act 1979, s 125(1) Fines Act 1996, s 6 Noxious Weeds Act 1993 Rural Fires Act 1997, Div 9 Cases Cited: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 City of Sydney v Adams [2015] NSWLEC 206 EPA v Barnes [2006] NSWCCA 246 Pittwater Council v Scahill (2009) 165 LGERA 289; [2009] NSWLEC 12 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Mosman Municipal Council v Menai Excavations Pty Limited (2002) 122 LGERA 89; [2002] NSWLEC 132 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 383 Veen v The Queen (No 2) 164 CLR 465; [1988] HCA 14 Category: Sentence Parties: Ku-ring-gai Council (Prosecutor) Craig Maurice Edgar (Defendant) Representation: Counsel: Mr J Johnson, barrister (Prosecutor) Mr K Durant, solicitor (Defendant)