Hunters Hill Council v Carter [2018] NSWLEC 84

Land and Environment Court New South Wales

Medium Neutral Citation: Hunters Hill Council v Carter [2018] NSWLEC 84 Hearing dates: 14 May 2018 Date of orders: 31 May 2018 Decision date: 31 May 2018 Jurisdiction: Class 5 Before: Moore J Decision: Orders at [115] and [116] Catchwords: PROSECUTION - lopping/topping of 13 trees without appropriate consent of council - consent of council required - plea of guilty - agreed facts demonstrate plea appropriate - extent of environmental harm caused - environmental harm significant - held to be aggravating factor - whether causing lopping/topping of trees reckless - recklessness established - held to be aggravating factor - whether lopping/topping was undertaken for financial benefit - not undertaken for financial benefit - assessment of seriousness of the offending conduct - offending conduct to be characterised as being in the middle of the low range of seriousness PENALTIES - 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 - instinctive synthesis of objective facts of offending conduct and defendant's subjective factors - indicative starting sentence of $60,000 fine for offence - 25% discount for early guilty plea - appropriate penalty fine of $45,000 REMEDIAL ORDERS - agreement between prosecutor and defendant for orders for period of years to monitor surviving trees and address any arboricultural problems - orders made by consent COSTS - defendant ordered to pay prosecutor's costs and investigation costs and expenses in agreed sum of $30,000 Legislation Cited: Crimes (Sentencing Procedure) Act 1999, ss 3, 10, 21A and 22 Environmental Planning and Assessment Act 1979, ss 125, 125B and 126 Fines Act 1996, s 6 Hunters Hill Local Environmental Plan 2012, cl 5.9 Protection of the Environment Operations Act 1997, s 245 Cases Cited: Burwood Council v Abdul-Rahman (No 2) [2017] NSWLEC 177 Burwood Council v Jarvest Pty Ltd [2011] NSWLEC 109 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Chief Executive, Office of Environment and Heritage v Ausgrid (2013) 199 LGERA 1; [2013] NSWLEC 51 Chief Executive, Office of Environment and Heritage v Rummery [2012] NSWLEC 271 City of Sydney v Adams [2015] NSWLEC 206 EPA v Barnes [2006] NSWCCA 246 Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299; [2006] NSWLEC 419 Hunters Hill Council v Gary Johnston [2013] NSWLEC 89 Ku-ring-gai Council v Edgar [2017] NSWLEC 49 Lake Macquarie City Council v Gordon [2017] NSWLEC 122 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 Pittwater Council v Scahill (2009) 165 LGERA 289; [2009] NSWLEC 12 R v Olbrich 199 CLR 270; [1999] HCA 54 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 Category: Sentence Parties: Hunters Hill Council (Prosecutor) Michael John Carter (Defendant) Representation: Counsel: Mr P Brown, solicitor (Prosecutor) Mr P Pagin, solicitor (Defendant)