Shoalhaven City Council v Hayes [2018] NSWLEC 65

Land and Environment Court New South Wales

Medium Neutral Citation: Shoalhaven City Council v Hayes [2018] NSWLEC 65 Hearing dates: 17 April 2018 Date of orders: 30 April 2018 Decision date: 30 April 2018 Jurisdiction: Class 5 Before: Moore J Decision: Orders at [138] Catchwords: PROSECUTION - Charge 1 - vegetation clearing and cutting down trees on Lots 1 and 2 in Deposited Plan 1008950 in breach of s 125(1) of the Environmental Planning and Assessment Act 1979 - evidence establishes the plea was appropriate - extent of environmental harm caused - whether aggravating factor - held not to be aggravating factor - vegetation clearing and tree-cutting was undertaken for financial benefit - this constituted an aggravating factor - assessment of seriousness of the offending conduct - offending conduct at the upper end of the low range of seriousness PROSECUTION - Charge 2 - vegetation clearing and cutting down trees on Lot 62 in Deposited Plan 755928 in breach of Native Vegetation Act 2003 - plea of guilty - evidence establishes the plea was appropriate - extent of environmental harm caused - whether aggravating factor - held not to be aggravating factor - vegetation clearing and tree-cutting was undertaken for financial benefit - this constituted an aggravating factor - assessment of seriousness of the offending conduct - offending conduct at the upper end of the low range of seriousness PROSECUTION - Charge 3 - vegetation clearing and cutting down trees on Lots 1 and 2 in Deposited Plan 1008950 in breach of Native Vegetation Act 2003 - plea of guilty - evidence establishes the plea was appropriate - extent of environmental harm caused - whether aggravating factor - held not to be aggravating factor - vegetation clearing and tree-cutting was undertaken for financial benefit - this constituted aggravating factor - assessment of seriousness of the offending conduct - offending conduct at the upper end of the low range of seriousness PPENALTIES - discount for early plea - Defendant to be convicted of each charge - need to provide for both specific and general deterrence - indicative starting sentence of $45,000 fine for each offence - discount of 30% for each offence (including discount for the early guilty pleas) results in an appropriate starting penalty of $31,500 for each offence - offending arising from one course of conduct - consideration of accumulation and totality - adjustment of penalties for Charge 2 (to $25,200) and Charge 3 (to $18,900) - total penalty of $75,600 imposed PENALTIES - financial circumstances of Defendant - whether discretion to reduce penalty further pursuant to s 6 of the Fines Act 1996 appropriate - insufficient evidence concerning Defendant's financial circumstances - not appropriate to exercise discretion to reduce penalty further BANKRUPTCY - Defendant undischarged bankrupt - consideration of relevant provisions of Bankruptcy Act 1966 (Cth) - fines excluded - need to notify Defendant's Trustee in Bankruptcy of outcome of proceedings as a consequence of making costs order and investigation costs and expenses order - Prosecutor ordered to provide Defendant's Trustee in Bankruptcy with copy of judgment Legislation Cited: Bankruptcy Act 1966 (Cwth), s 82(1) and (3) Crimes (Sentencing Procedure) Act 1999, ss 3, 10, 21A and 22 Criminal Procedure Act, 1986, ss 257B and 257G Environmental Planning and Assessment Act 1979, ss 125(1) Environmental Planning and Assessment Amendment Act 2014 Fines Act 1996, s 6 Local Government Act 1993, s 684 Local Land Services Amendment Act 2016, s 3 Native Vegetation Act 2003 Protection of the Environment Operations Act 1997, Pt 8.3 and s 248 Shoalhaven Local Environmental Plan 2014, cl 5.9 Cases Cited: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Chief Executive of the Office of Environment and Heritage v Cory Ian Turnbull [2017] NSWLEC 140 City of Sydney v Adams [2015] NSWLEC 206 EPA v Barnes [2006] NSWCCA 246 Ku-ring-gai Council v Edgar [2017] NSWLEC 49 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 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 Willoughby City Council v Rahmani [2017] NSWLEC 166 Wollongong City Council v Eldridge [2017] NSWLEC 35 Category: Sentence Parties: Shoalhaven City Council (Prosecutor) Luke Anthony Hayes (Defendant) Representation: Counsel: Mr S Nash, barrister (Prosecutor) Self-represented (Defendant)