Blue Mountains City Council v Carlon

Blue Mountains Local Environmental Plan 1991 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5(a)(ii), 5(c), 10, 10A, 21A, 22(1), 23(1) LEGISLATION CITED: Environmental Planning and Assessment Act 1979 (NSW), ss 76A, 125, 126, 127A Fines Act 1996 (NSW), s 6 Native Vegetation Conservation Act 1997 Sydney Regional Environmental Plan No 20 - Hawkesbury-Nepean River (No 2 - 1997), cl 11(3)

Attorney General's Application (No 3 of 2002) (2004) 61 NSWLR 305 Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349 Cameron v The Queen (2002) 209 CLR 339 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Caralis v Smyth (1988) 34 A Crim R 193, 65 LGRA 303 Chin v Ryde City Council (2004) 133 LGERA 312 Director of Public Prosecutions (Cth) v Said Khodor El Karhani (1990) 21 NSWLR 370 Director-General of the Department of Environment and Climate Change v Taylor [2007] NSWLEC 530 Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280 Environment Protection Authority v Barnes [2006] NSWCCA 246 Environment Protection Authority v Lithgow City Council [2007] NSWLEC 695 Environment Protection Authority v Snowy Hydro Ltd [2008] NSWLEC 264 Hardt v Environment Protection Authority (2007) 156 LGERA 337 Hornsby Shire Council v Devaney [2007] NSWLEC 199 CASES CITED: McDonagh (on behalf of Great Lakes Council) v Birdon Dredging P/L (1998) 99 LGERA 198 Markarian v The Queen (2005) 228 CLR 357 Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89 R v Carroll [2008] NSWCCA 218 R v KNL (2005) 154 A Crim R 268 R v McNaughton (2006) 66 NSWLR 566 R v MA (2004) 145 A Crim R 434 R v Mungomery (2004) 151 A Crim R 376 R v Paris [2001] NSWCCA 83 R v Piccin (No 2) [2001] NSWCCA 323 R v Thomson; R v Houlton (2000) 49 NSWLR 383 R v Whyte (2002) 55 NSWLR 252 R v Rahme (1989) 43 A Crim R 81 Thorneloe v Filipowski (2001) 52 NSWLR 60 Veen v The Queen (1979) 143 CLR 458 Veen v The Queen [No 2] (1988) 164 CLR 465 Walden v Hensler (1987) 163 CLR 561

PROSECUTOR: Mr P. Clay SOLICITORS: Houston Dearn O'Connor LEGAL REPRESENTATIVES: DEFENDANT: Mr R. Killalea SOLICITORS: Susan N Goodsell

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 HIS HONOUR: The defendant Luke Carlon has pleaded guilty to a charge that between about 1 September 2006 and 31 October 2006 at 260 Mount Irvine Road, Mount Irvine in New South Wales, he committed an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 (EPA Act), in that he cleared trees and vegetation from that land without first obtaining the consent of Blue Mountains City Council as required by s 76A of the EPA Act and cl 11(3) of the Sydney Regional Environmental Plan No 20 - Hawkesbury-Nepean River (No 2 - 1997) (SREP 20). The issue for determination is what, if any, penalty should be imposed. 2 The particulars of clearing of trees and vegetation to the charge in the amended summons are as follows: The Defendant used machinery including a bulldozer to: (a) push up shrubs groundcovers and all other vegetation on a previously cleared area of about 1 acre, and (b) knock down between 20 to 30 mature age trees (being of a height greater than 15 metres) in an additional 0.25 acres (at the periphery of parts of the 1 acre identified in (a)) and then push up those mature age trees and minor regrowth trees, shrubs, groundcovers and all other vegetation on that 0.25 acres, to existing windrows

on land [owned] by Ross Tzannes and Suzanne Tzannes. The activity of Luke Carlon on the land left large areas of soil exposed and caused substantial disturbance of the topsoil and damage to some remaining trees and tree root zones. Agreed facts 3 The facts at [4] - [17] below are agreed. 4 The land is known as 260 Mt Irvine Road, Mt Irvine. Mt Irvine is within the Blue Mountains City Council local government area.

5 The land is owned by Ross and Suzanne Tzannes. They have owned the land since 9 September 2002.

6 The land is zoned "Rural Conservation" pursuant to Blue Mountains Local Environmental Plan 1991 and is within a heritage conservation area. An environmentally sensitive vegetation unit, being Moist Basalt Cap Forest, has been identified on the land (and incorporated in the Blue Mountains LEP on about 15 December 2006).

7 The land is subject to development controls imposed by cl 11(3) of SREP 20. Development for the purpose of any building, work or land use, including clearing, requires development consent. The consent authority is Blue Mountains City Council.

8 No development consent has been applied for, or granted, in respect of clearing the land.

10 The improvements on the land are a packing shed which cannot be used for human habitation.

11 Part of the land, about 1.3 acres, had been subject to tree felling and clearing more than 20 years prior to 2006. Between 2003 and November 2005 further clearing occurred, within that 1.3 acres. That clearing is not the subject of these proceedings. Photos of the part of the outcome of clearing to November 2005 are Exhibit 3. As a result of this prior clearing, at 25 September 2006 there were numerous logs and debris scattered through about one acre of the 1.3 acres identified above as well as about nine stacks ("windrows") of previously cleared vegetation. There were also logs and debris scattered through about another 0.25 acres (at parts of the periphery of the one acre identified above) with mature age trees.

12 Luke Carlon was engaged by the owners to clean up the land comprising the area of about one acre identified above. Mr Carlon began cleaning up that one acre from about 25 September 2006. Mr Carlon asserts that he understood from a conversation with Mrs Tzannes that council had given her approval to do what she had instructed Mr Carlon to do.

13 On 25 September 2006, 3 October 2006 and 6 October 2006 Mr Carlon operated a bulldozer on the land referred to above. Mr Carlon pushed up most of the logs and debris referred to in [11], which were not already in windrows, into the existing windrows including: (a) pushing up shrubs, groundcovers and all other vegetation on the previously cleared area of about one acre; and (b) knocking down between 20 to 30 mature age trees (being of a height greater than 15 metres) in the additional 0.25 acres identified above (at the periphery of parts of the one acre identified above) and then pushing up those mature age trees and minor regrowth trees, shrubs, groundcovers and all minor regrowth vegetation on that 0.25 acres, to existing windrows.

14 There was extensive soil disturbance and damage to a number of eucalypt trees that were still standing, caused by impact with Mr Carlon's bulldozer used to clear the site.

15 The actions of Mr Carlon removed vegetation that was representative of the natural flora, including Eucalypt, Angophora and Syncarpia species more than four metres high, and all the associated understorey vegetation.

16 Mr Carlon's actions in cleaning up the site (as described above) added at least ten percent to the amount of material in about nine windrows identified on the site by Michelle Rix as at about 11 October 2006 (and as exist to date).

17 The number of mature age trees felled by Mr Carlon (being of a height greater than 15 metres) is between 20 and 30. Defendant's evidence as to the circumstances 18 The defendant gave the following evidence as to the circumstances of the offence, which I accept. 19 The defendant owns his business. He does fencing, stock cartage, stock work and muster. He operates a bulldozer to clear fence lines and a tractor for agricultural works. He is not in the business of land clearing.

20 Sometime during the first few days of September 2006, Suzanne Tzannes telephoned him. She told him she had some cleaning up to do on her property at Mr Irvine. He asked what she meant and she said words to the effect "old logs to clean up; it's a mess and a fire hazard here". He said "I don't go out to Mt Irvine". She said "You remember your mother used to work for my husband's legal firm. Please do the job cleaning up our property". He felt obliged to go and see her.

21 He went out to the property several days later (about mid September, 2006) to look at the "mess".

22 Mrs Tzannes and he had a discussion. Mrs Tzannes said words to the effect of "I am fearful of fire breaking out. They've said it is going to be a hot and dry summer".

23 Mrs Tzannes said words to the effect that "Debbie and another bloke from Council came and inspected the property. Debbie had told me I have a real mess here you had better clean it up". Mrs Tzannes told him that she had said to Debbie "I am frightened by fire. Council has told me to clean it up".

24 He said to Mrs Tzannes words to the effect "I will have to remove some trees to manoeuvre and to be able to clean it up". Mrs Tzannes said words to the effect "Just do what you have to do to clean it up". He said "I can only push it up into heaps - I can't remove it for you". She said "That's alright". He said "I will go around the trees that I can". She again said words to the effect "Just clean up - just do what you can do".

25 On or about 14 November 2006 he had an interview with Ms Hockley and Mr Bles of council. Council provided him with a record of that interview. A copy is in evidence. He confirms its contents. In the interview he expressed his concern that the material that he was asked to clean up was a fire hazard.

26 There were a number of hung trees - that is, trees which had part fallen into mature aged living trees, in the identified 0.25 acre area.

27 At no stage during the operations did Mr Carlon use a chainsaw to fell timber. The only time he used a chain saw was on "old" timbers, which were too long to sit in the windrows and needed to be shortened to manageable lengths.

28 The defendant's oral evidence included the following. He undertook to assist the prosecutor in the proceedings relating to the charge against Mrs Tzannes. His best recollection of his communications with Mrs Tzannes is set out in his written evidence. He understood the council had consented to the work he carried out because Mrs Tzannes told him council officers had inspected the site and told her to clear it up. He understood that council approval was necessary. At the time, he thought that what the council officers told Mrs Tzannes was sufficient approval. By the time he was later interviewed by investigators concerning the offence he knew written consent was needed and that Mrs Tzannes did not have the necessary consent. He did not ask Mrs Tzannes to produce a written consent nor did he ask her whether there was a consent for anything other than cleaning up the property. He had not previously been involved in seeking or obtaining council approval to do work. He is sorry he broke the law. He did not intend to do so. A possible consequence of a fine is that he would have to give up the farm that has been held in the family for generations. In future, if he is asked to clean up property with his bulldozer, he would ask to see the necessary approval and would check with the council. He might also obtain legal assistance.

Mr McKendry's evidence 29 Paul McKendry, a Tree Management Officer with the Blue Mountains City Council gave evidence in the prosecutor's case. He was tested in cross-examination but adhered to his evidence, which I accept. In November 2006 he inspected the property. He expressed his conclusions as follows: My observations made on 1 and 16 November 2006, revealed that intensive tree removal work had been carried out within less than six (6) weeks of my site visit.

A thorough visual inspection of the windrows revealed a number of living trees (less than 6 weeks ago) having a height exceeding Council's Tree Preservation Order exemption provisions of four (4) metres, had been removed by human intervention using heavy machinery. The full extent of the tree removal was not determined due to physical limitations determining what tree material was buried within the centre of most of the windrows.

There were ninety-seven (97) trees that were removed between one to four (1-4) years. There were seventeen (17) trees removed more than twenty (20) years ago.

Indiscriminate damage to tree root zones both within and on the perimeter of the tree removal site by excavation machinery was not undertaken in accordance with accepted arboriculture practice. The breaking and severing of anchor tree roots has in effect removed the mechanical support of those trees. Many of the root compromised trees impacted upon will fall over in the short term, therefore extending outwards the current boundary of the clear felled site, into undisturbed forest as wind corridors are created.

The modifications to the growing environment to the tree root systems and the damage to root zones caused by the operation of heavy machinery will cause the premature senescence of, if not death in the short term of remaining trees affected.

The intensive soil disturbance works carried out by the machine operator within the tree removal site apart from having severely degraded the environment quality of the site appears to have been done so in order to remove Syncarpia glomulifera (turpentine) regrowth vegetative propogules that would have quickly established across the site if not screened from the soil. The intensive cultivation of soil across the site provided an ideal soil medium for the establishment of pasture grass species. 30 In July 2007 Mr McKendry undertook a further inspection. He noted that 30 sizeable trees had fallen to the ground. Their heights ranged from a little over eight metres to over 30 metres. He gave particulars of his inspection of each of these trees. His summary of the inspection included the following:

(a) 21 young to semi-mature age class Eucalyptus Fastigata (brown barrell trees) had heights ranging between 17.2 metres and 29.2 metres. All had been actively growing specimens at the time of falling over. The root balls of four of these trees exhibited signs of previous damage and severance consistent with mechanical damage caused by the operation of a bulldozer or excavator and did not appear to have occurred at the time the tree fell over. Root severance was noted externally on all exposed areas of the root balls. It is reasonable to assume that the majority of the root severance occurred when the root balls were heaved or lifted from their anchorage at the time of the windthrow. Much of the visible surface root damage found nearer to the ground's surface could be reasonably attributed to machinery works;

(b) eight young turpentine trees revealed heights ranging between 8.62 metres and 12.2 metres. Five appeared to have been felled by adjacent fallen trees. The remaining three trees had been windthrown. In each of the eight trees, the above ground components appeared to have been in good health and condition at the time of falling;

(c) one mountain ash was of a semi-mature age class and had a height of 30.48 metres. The tree appeared to have been living at the time of being windthrown. There was clear visible evidence that some roots had been mechanically severed by the likes of earthmoving equipment;

(d) one upright mountain ash was exhibiting signs of severe strain and had declined significantly since his initial appraisal in November 2006. He does not expect this tree to survive the short term. He attributes the rapid and premature decline of its health to the root damage inflicted during the clearing operation in September and October 2006;

(e) he observed mechanical damage to the exposed structural surface roots of other trees remaining upright within the disturbance area;

(f) in his opinion, the windthrow of trees on the site is a direct consequence of the ongoing tree removal carried out in recent years as well as a result of additional significant mechanical earthworks carried out on site in September and October 2006.

The defendant: background and personal circumstances 31 The defendant is 39 year old farmer, married and the father of two daughters aged, respectively, four years and 18 months. He is a fifth generation bush pioneer of the Carlon family, who were original settlers in 1831 in the Burragorang Valley. He has been carrying out rural work all his life after leaving school and starting work on the land with his father.

32 Mr Carlon gave evidence, which I accept, that his responsibility to the bush and to his community have always been paramount in his life. He learned from his family the importance of preserving the bush in its natural form. He also learned the benefits of giving to the community in order to create a harmonious and cooperative lifestyle. Indeed, he has spent his lifetime contributing to the community.

33 Since the age of 15 years, he has been an active and consistent member of the Volunteer Rural Fire Service. During his service with the Rural Fire Service, he has been in attendance at many of the major wildfires in the Blue Mountains; and he has assisted and supported the State Emergency Services and Police Rescue. On numerous occasions, he has led teams on horseback on dark and dangerous tracks to rescue injured and lost bushwalkers from treacherous situation. He has brought bodies from flooded rivers for the police; and accompanied and guided pilots of rescue helicopters to targets in deep bushland too remote to access by any other means.

34 A number of references were tendered which confirm the defendant's excellent character and community service. Sentencing considerations 35 The Crimes (Sentencing Procedure) Act 1999 (Sentencing Act) provides the framework upon which a court determines the sentence to be imposed upon a particular offender for an offence. In Attorney General's Application (No 3 of 2002) (2004) 61 NSWLR 305; [2004] NSWCCA 303, at [45], Howie J (with whom the other members of the Court of Criminal Appeal agreed), held: The Sentencing Act provides the framework upon which a court determines the sentence to be imposed upon a particular offender for any offence. The Act provides the sentencing practice, principles and penalty options that operate in all courts exercising State jurisdiction. There are also the sentencing principles and practices derived from the common law and that have been preserved by the provisions of the Act. So, for example, the list of mitigating and aggravating factors set out in s 21A of the Act must be read in the light of principles established by the courts independently of the Act: s 21A(4), and R v Way (2004) 60 NSWLR 168; R v Wickham [2004] NSWCCA 193.

36 The seven overlapping purposes "for which a court may impose a sentence on an offender" are set out in s 3A of the Sentencing Act: (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. 37 This provision has been considered to be a statutory endorsement of the purposes of punishment identified by the High Court in Veen v The Queen [No 2] (1987) 164 CLR 465: R v MA (2004) 145 A Crim R 434; [2004] NSWCCA 92 at [23].

38 Section 21A requires the courts to take into consideration the list of aggravating and mitigating matters set out therein (to the extent that they are relevant) and any other objective or subjective factor that affects the relative seriousness of the offence. Section 21A relevantly provides: (1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters:

(a) the aggravating factors referred to in subsection (2) that are relevant and known to the court, (b) the mitigating factors referred to in subsection (3) that are relevant and known to the court, (c) any other objective or subjective factor that affects the relative seriousness of the offence.

The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.

(2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: …

(g) the injury, emotional harm, loss or damage caused by the offence was substantial, …

The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.

(3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, … (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and … (k) a plea of guilty by the offender (as provided by section 22), … (m) assistance by the offender to law enforcement authorities (as provided by section 23).

(4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so. 39 As for a plea of guilty, s 22(1) provides: 22 Guilty plea to be taken into account (1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account: (a) the fact that the offender has pleaded guilty, and (b) when the offender pleaded guilty or indicated an intention to plead guilty, and may accordingly impose a lesser penalty than it would otherwise have imposed. 40 The reasons why a plea of guilty is taken into account in mitigation are on the pragmatic, utilitarian ground that the community is spared the time and expense of a contested trial; it is some evidence of remorse; and it may indicate acceptance of responsibility and a willingness to facilitate the course of justice: Cameron v The Queen (2002) 209 CLR 339 at [11]. The utilitarian value of a plea of guilty is generally assessed in the range of 10 percent to 25 percent. The top of the range is restricted to pleas at the earliest opportunity. Rare cases involving exceptional complexity and trial duration may involve a higher discount; in some cases no discount is appropriate: R v Thomson; R v Houlton (2000) 49 NSWLR 383 (CCA) at 418 - 419.

41 As for assistance by the offender to law enforcement authorities, s 23(1) provides: 23 Power to reduce penalties for assistance provided to law enforcement authorities

(1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.

42 The sentence should reflect both the objective circumstances and the subjective circumstances of the offence: Veen v The Queen (1978) 143 CLR 458 at 490. The sentence should be determined by an instinctive synthesis of all the relevant objective and subjective circumstances: Markarian v The Queen (2005) 228 CLR 357 at [37], [39], [66] and [73]. Objective factors 43 The primary consideration in sentencing is the objective seriousness of the offence. That is because objective seriousness fixes the upper and lower limits of proportionate punishment: R v McNaughton (2006) 66 NSWLR 566 (CCA) at [15], [25]; R v Whyte (2002) 55 NSWLR 252 (CCA) at [156] - [158]; Environment Protection Authority v Snowy Hydro Ltd [2008] NSWLEC 264 at [137]. 44 Two components to the assessment of the objective gravity of an offence are an examination of the precise acts or omissions of the offender; and the consequences of those acts or omissions: R v Carroll [2008] NSWCCA 218 at [39]; Environment Protection Authority v Snowy Hydro Ltd [2008] NSWLEC 264 at [137]; Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280 at [22].

45 Factors relevant to the objective seriousness of an offence include (a) the maximum penalty; (b) the place of the offence in the statutory scheme; (c) the extent of the harm or likely harm caused; (d) the practical measures that the offender could have taken to prevent the harm; (e) the extent to which the offender had control over the causes of the harm; (f) the extent to which the offender could have reasonably foreseen the harm; (g) whether the offender was complying with orders from an employer or supervising employee; (h) the reasons for the commission of the offence; and (g) the state of mind of the offender: cf Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 at [163]. Only one of those factors - harm or damage - is specifically mentioned in the Sentencing Act, which provides the general statutory framework for sentencing: s 21A(2)(g) and 3(a). In contrast, the legislature has specifically mandated that factors (c) to (g) be considered when sentencing for offences to which the Protection of the Environment Operations Act 1997 applies: s 241.

Maximum Penalty 46 The primary indicator of objective seriousness is the maximum penalty for that expression by parliament of the seriousness of the offence: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 (CCA) at 698. As was said in Director of Public Prosecutions (Cth) v Said Khodor El Karhani (1990) 21 NSWLR 370 at 380 (CCA: Kirby P, Campbell and Newman JJ): As in all matters of sentencing for offences provided by statute, it is essential first to determine the maximum sentence which may by law be imposed. Not only does this identify any alternatives provided by Parliament. It indicates to the Court, in a general way, the seriousness with which Parliament, representing the people, has viewed the offence.

47 The maximum penalty for this offence is $1,100,000 and a further daily penalty of $110,000: s 126 EPA Act. The prosecutor does not seek a daily penalty in this case.

Place of the offence in the statutory scheme 48 Carrying out development without the requisite development consent undermines the efficacy of the statutory system of planning controls: Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89 at [35]. It is contrary to two objects of the EPA Act: the object of encouraging the promotion and coordination of the orderly and economic use and development of land; and the object of providing increased opportunity for public involvement and participation in planning and assessment: s 5(a)(ii) and (c).

Harm caused 49 A factor to be taken into account in determining the objective seriousness of the offence is whether or not the damage caused by the offence was substantial: s 21A(2)(g) and 3(a) Sentencing Act. The commission of the offence caused substantial harm to the environment in two respects. First, the loss of 20 to 30 mature trees. Secondly, damage to the soil, understorey and tree roots over an area of about an acre. This exposed trees that remained standing to greater risk of damage, for example in high wind. The evidence of Mr McKendry demonstrates the harm which was likely to, and did, occur. However, photographic evidence indicates that the pushed up areas are revegetating satisfactorily. The defendant foresaw the harm and controlled the cause - use of a bulldozer - but could only have avoided the harm by not agreeing to carry out the works with a bulldozer.

50 The prosecutor submits that, as an environmentally sensitive vegetation unit has been identified on the land (see [6] above), it cannot be concluded that had a development application been made for the clearing, consent would have been granted. There was no evidence from the prosecutor council in that respect and given that the sensitivity was not recognised in the local environmental plan until after the incident, I am disinclined to accept the submission. Reason for offence: state of mind of offender 51 A factor to be taken into account in determining the objective seriousness of a strict liability offence is the state of mind of the offender. A strict liability offence that was committed intentionally, recklessly or negligently will be objectively more serious than one not so committed: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 (CCA) at 700; Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 at [207] - [208]; Hardt v Environment Protection Authority (2007) 156 LGERA 337 (CCA) at [53]; Environment Protection Authority v Lithgow City Council [2007] NSWLEC 695 at [35]: Environment Protection Authority v Snowy Hydro Ltd [2008] NSWLEC 264 at [139].

52 I have no doubt that the defendant honestly believed council approval had been given for his clearing work. He came by that belief as a result of his conversation with Mrs Tzannes set out at [20] - [24] above. The prosecutor submits that his belief was recklessly or negligently formed. For the defendant, it is submitted that his belief was reasonably formed or at least not unreasonably formed.

53 Mrs Tzannes told the defendant that the council officers had told her to clean up the land and - after he told her that he would have to remove some trees - told him to just do what he had to do to clean it up. The damage which the defendant caused appears to have been necessarily incidental to a clean up done with a bulldozer. The only alternative to using a bulldozer would seem to have been to send in a team of men with chainsaws. As I understand it, the defendant read into what Mrs Tzannes told him that the council approved any clearing which was necessarily incidental to the clean up if done with a bulldozer. His mental process in forming that belief seems to have been to the following effect: (a) oral approval by the council officers constituted approval by the council and was sufficient; (b) in telling Mrs Tzannes to clean up the land, the council officers implicitly approved her doing so with a bulldozer; (c) the council officers thereby approved any clearing work which was necessarily incidental to a clean up if done with a bulldozer; (d) the clearing work which he in fact carried out with the bulldozer was necessarily incidental to a clean up done with a bulldozer; (e) therefore the council officers implicitly approved that clearing work.

54 The quality of the defendant's belief is heightened by the following additional matters. This sort of work was not part of his business. He only agreed to do it because Mrs Tzannes prevailed on him to do so because of a family connection though her husband's legal firm. The fact that Mrs Tzannes' husband and co-owner was a lawyer gave some colour to his impression that the bulldozer clearing that she told him to go ahead with was lawful. He was inexperienced in matters of council approvals. At the time he did not know that a written council consent for clearing was necessary. As an experienced fire services officer, he believed that the fallen timber needed to be cleared because it represented a fire hazard, a view shared by Mrs Tzannes and, apparently, the council officers. On the other hand, the quality of his belief is less than it would otherwise have been because there is a distinction between cleaning up land and clearing trees and vegetation; the council officers did not expressly approve the clearing of trees and vegetation nor the use of a bulldozer; and he did not ask Mrs Tzannes if council approval for clearing trees and vegetation or use of a bulldozer had been obtained nor did she expressly tell him that it had.

55 Overall, I am not prepared to hold that the defendant's mistaken belief was formed recklessly or negligently. In my view it was not unreasonably formed. Nevertheless, he did not act prudently. He knew that the council officers had not expressly approved the clearing of trees and vegetation nor the use of a bulldozer. In those circumstances, it would have been prudent for the defendant to have checked with the council, or to have requested Ms Tzannes to check with the council, whether it approved the cleaning up work being done with a bulldozer, after explaining to the council that that would necessitate the clearing of trees and vegetation. Conclusion as to objective seriousness 56 In my opinion, the objective seriousness of the offence lies towards the low end of the scale.

Subjective considerations 57 The Court may take into account favourable and unfavourable factors personal to the offender: Veen v The Queen [No 2] (1987) 164 CLR 465 at 491

58 The following mitigating subjective matters should be taken into account in the defendant's favour:

(a) the defendant has no record of prior convictions: s 21A(3)(e) Sentencing Act ; (b) the defendant is a person of excellent character: s 21A(3)(f) (see [31] - [34] above); (c) the defendant has given full assistance to the prosecutor: ss 21A(3)(m) and 23; (d) the defendant pleaded guilty at the earliest time: ss 21A(3)(k) and 22 Sentencing Act . Consequently, he is entitled to the full discount of 25 percent on sentence; (e) the defendant has shown remorse, has provided evidence that he accepts responsibility for his actions and has acknowledged the damage caused: s 21A(3)(i). Indeed, the defendant's demeanour suggested that he was distressed by the mistake that he made and by the position that he now finds himself in. Means to Pay 59 If a fine were to be imposed, there is a further subjective consideration in fixing the amount of the fine. In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider the defendant's means to pay. Section 6 of the Fines Act 1996 provides: 6 Consideration of accused's means to pay

In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider:

(a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount. 60 A court generally should not impose a fine which an offender does not have the means to pay: R v Rahme (1989) 43 A Crim R 81 at 86-89 per Finlay J (Studdert J agreeing). In that case a fine was reduced on appeal from $22,000 to $5,000 because of the appellant's limited means. In considering an offender's means, the amount of any costs order should be taken into account: Environment Protection Authority v Barnes [2006] NSWCCA 246 at [88] per Kirby J (Mason P and Hoeben J agreeing). Other cases in this Court in which the limited means of the defendant were considered in the context of s 6 of the Fines Act were collected in Hornsby Shire Council v Devaney [2007] NSWLEC 199 at [84].

61 The defendant's income is meagre. His taxable income for the 2003 to 2007 tax years ranged between about $4,000 and $11,000, the latter relating to the 2007 tax year. He has no savings or investments. He owns and operates a farm which has been in the family for generations and which is mortgaged, and owns equipment needed for its operation such as a small bulldozer, a tractor, a grader and a utility. His wife also owns a motor vehicle. She does not earn an income and looks after their small children. The defendant gave evidence, which I accept, that if he had to pay a fine his farm may be at risk. However, that evidence is not of much weight because it was not related to a fine in any particular amount and there was no financial analysis of the value of his assets and the amount of his liabilities. The prosecutor seeks an order that the defendant pay the prosecutor's costs and estimates that the amount of those costs is likely to be about $20,000. The prosecutor's costs alone - for I propose to order the defendant to pay them - far exceed his historical annual taxable income and, it appears, he would have to borrow or dig into his assets to pay it. Assuming that more could be borrowed to pay a significant fine, the servicing of repayment of the debt would appear to be likely to cause some hardship to the defendant and his family. Although the evidence is unsatisfactory to the extent that it does not reveal the value of his assets and the amount of his liabilities, I am inclined to think that his means are so limited that any fine which might otherwise be imposed should be discounted on that account.

Deterrence 62 Individual deterrence need not be a purpose of sentencing in this case. The defendant is a first offender and, in my view, is unlikely to re-offend. At the time, he believed, not irrationally, that he was acting lawfully. He is remorseful and I accept his evidence that, in future, if he is asked to clear a property or to take a bulldozer onto property to do work, he would ask to see the necessary approvals and, if appropriate, check with the council or even obtain legal advice. General deterrence - the deterrence of others from committing similar offences - is usually an important purpose of sentencing in a case of this type, particularly it has caused environmental harm, in order to uphold the efficacy of the system of planning controls. Carrying out development without consent undermines the integrity of the planning system. However, in the peculiar circumstances of the present case, analysed at [52] - [55] above, the case for general deterrence is not so strong. Even-handedness 63 Consistency of approach in sentencing is of importance in maintaining confidence in the administration of justice. Sentencing statistics may provide general guidance in achieving consistency by revealing sentencing patterns, but may have to be supplemented by reference to particular cases where the facts, that are not capable of being reduced to statistical form, may suggest more precise parallels. However, as Spigelman CJ observed in R v Mungomery (2004) 151 A Crim R 376 at [5]: …the broad judgment required for the determination of an appropriate sentence turns on the facts of a particular case and the facts of other cases are virtually never so similar as to require detailed exposition. It will often be appropriate for a sentencing judge to refer only to an impression that s/he acquires from reading relevant prior judgments and from the range of statistics available on the Judicial Commission's database.

64 The prosecutor referred me to two tree removal or clearing cases: Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349 (Preston CJ) and Hornsby Shire Council v Devaney [2007] NSWLEC 199 (Biscoe J). Cameron was an appeal to this Court from the Local Court. The appellant arranged for the removal of a dead tree and branches of live gum trees situated in a public reserve at the rear of the appellant's property. The appellant did not have consent to remove the trees. The appellant was issued with a penalty notice under s 127A of the EPA Act for an offence of carrying out development without consent pursuant to ss 125(1) and 76A of the EPA Act. The appellant elected to have the matter determined by a court rather than pay the amount of the penalty specified in the penalty notice. The appellant was convicted and sentenced in the Local Court, where he was ordered to pay a fine of $10,000, court costs and the prosecutor's costs. The maximum penalty for an offence against the EPA Act is $1,100,000 [see [47] above]. The Court found that while the appellant had no prior convictions, pleaded guilty and was entitled to a 25 per cent discount for that plea, there were no other subjective circumstances of the appellant that warranted a reduction in sentence. The appellant showed no contrition or remorse and did not co-operate with authorities. The Court dismissed the appeal, confirmed the fine of $10,000 imposed by the Local Court and ordered the appellant to pay the respondent's costs of the appeal.

65 In Hornsby Shire Council v Devaney the two defendants pleaded guilty to an offence of carrying out development by clearing trees and vegetation on rural land, being development which required development consent which had not been obtained. The clearing work was carried out by one of the defendants, an experienced earthmoving contractor, acting on the instructions of the other defendant, a young and inexperienced person. The Court fined the contractor $20,000 and discharged the young offender on condition that she enter into a good behaviour bond for two years. Each were ordered to contribute equally to the cost of preparation of a bushland restoration plan and to pay the prosecutor's costs. The case against the contractor was more serious than the present case. There the contractor had been in the earthmoving business for decades, the young defendant had sought advice from him as to whether development consent was required, and he had assumed responsibility by erroneously advising her that development consent was not required.

66 In Director-General of the Department of Environment and Climate Change v Taylor [2007] NSWLEC 530 (Lloyd J) the defendant pleaded guilty to the unlawful clearing of rural land contrary to the Native Vegetation Conservation Act 1997. The Court reviewed sentences in a number of other unlawful land clearing cases (including Cameron) contrary to other legislation. The Court imposed a fine of $20,000 on the owner of land for clearing approximately 30 hectares of native vegetation. That was after discounting the penalty by one third for mitigating factors, including a discount of 25 percent for the utilitarian value of the early plea of guilty. The conduct of the defendant in relation to the commission of the offence was much more reprehensible than that of the defendant in the present case, he had lied to the investigator, and the mitigating factors were not as strong as in the present case (for example, there was some doubt as to the extent of genuine remorse).

The appropriate penalty 67 The prosecutor suggests that a fine should be imposed in the range of $10,000 to $15,000. The defendant applies for an order under s 10(1)(b) of the Sentencing Act discharging the defendant on condition that he enter into a good behaviour bond for a term not exceeding two years. Alternatively, the defendant applies for an order under s 10A(1), which provides that: "A court that convicts an offender may dispose of the proceedings without imposing any other penalty". Section 10 relevantly provides: 10 Dismissal of charges and conditional discharge of offender

(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one 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 for a term not exceeding 2 years, (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. (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. … (5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence. 68 The dismissal of charges under s 10 reflects the willingness of the legislature to provide first offenders, in certain circumstances, a second chance to maintain a reputation of good character: R v Van Nam Nguyen [2002] NSWCCA 183 at [50]. 69 None of the criteria in s 10(3) are conclusive but all must be taken into account: R v Paris [2001] NSWCCA 83 at [43], [48], [49]; Attorney General's Application (No 3 of 2002) (2004) 61 NSWLR 305; [2004] NSWCCA 303 at [13]. "It is not necessary to the application of s 10 that the offence be characterised as trivial; the four factors mentioned in subs 3 are…intended to be disjunctive and non-exhaustive": R v Paris at [42]; similarly see R v Piccin (No 2) [2001] NSWCCA 323 at [25]. Section 10 may be applied even if the offence is not found to be trivial: Chin v Ryde City Council (2004) 133 LGERA 312 (CCA) at [38]. An obiter comment was made in R v KNL (2005) 154 A Crim R 268 at [46] that it seems anomalous to make an order under s 10 in the face of an express finding that the offence was not trivial. The nature of the anomaly was not explained and, with respect, the comment seems to be in the face of the authorities.

70 This is a strict liability offence in which mens rea plays no part and guilt is established by proof of the objective ingredients of the offence: Caralis v Smyth (1988) 34 A Crim R 193, 65 LGRA 303 at 308 (CCA). It is unusual in the case of strict liability offences for a defendant to receive the benefit of s 10, even if the defendant genuinely believed that it was lawfully entitled to undertake the prohibited activity. The reason for imposing a penalty even where such a belief is held, has been expressed in various ways to similar effect: to invoke the deterrent purpose of educating the offender and the community in the law's proscriptions so that the law will come to be known and obeyed; to ensure that persons take proper steps to ascertain the lawfulness of their proposed conduct; to give effect to the system of planning controls. See Mosman Municipal Council v Menai Excavations P/L (2002) 122 LGERA 89 at [35] (Lloyd J); McDonagh (on behalf of Great Lakes Council) v Birdon Dredging Pty Ltd (1998) 99 LGERA 198 at 205 (Bignold J) quoting Walden v Hensler (1987) 163 CLR 561 at 570; Caralis v Smyth (1988) 34 A Crim R 193, 65 LGRA 303 at 309 (CCA).

71 In the context of strict liability pollution of the environment offences, it has been said that it is a rare case when a dismissal under s 10 is seen as appropriate: Thorneloe v Filipowski (2001) 52 NSWLR 60 (CCA) at [165] - [169] per Spigelman CJ. Nevertheless, in that case, the Court of Appeal made an order under s 10(1)(a) directing that the charge be dismissed in circumstances where there was nothing further that the master of a vessel, a first offender, could have done to avoid the comparatively minor oil pollution the subject of a strict liability offence to which he had pleaded guilty: at [214]. Spigelman CJ held at [178] and [184]: 178 It is, in my opinion, relevant to the exercise of the discretion under s 10 of the Sentencing Act , in the context of a strict liability offence, to consider what the applicant for the benefit of s 10 could have done to avert the event that has occurred. While questions of weight are always for the sentencing judge, it is unlikely that this consideration will be given determinative weight in the case of a serious offence or a repeat offender. Where, as here, there was a comparatively minor pollution by a first offender, this consideration is entitled to weight. … 184 The circumstances, particularly the unblemished record of the appellant and the small size of the discharge indicate that this is an appropriate case for the exercise of the discretion. Consideration of what the master could have done to avert the discharge supports this conclusion. 72 The prosecutor opposes an order under s 10(1)(b), essentially because the offence was not of a trivial nature and the defendant failed to take the steps of asking Mrs Tzannes whether there was a council consent to clearing work and, if so, asking to see it. While conceding that the offence was not of a trivial nature, the defendant points out that that is not necessarily dispositive of its application. The defendant submits (in terms of s 10(2)) that in all the circumstances the Court should be satisfied that it is inexpedient to inflict any punishment (other than nominal punishment) or that it is expedient to release the defendant on a good behaviour bond. 73 It is necessary to take into account all the criteria in s 10(3). The defendant is an honest person of unblemished character who has spent his life in voluntary and hazardous community service. He is a first offender. He is 39 years of age. There is nothing about his health or mental condition which is of relevance. Although the offence is not of a trivial nature, there are extenuating circumstances in which the offence was committed and other circumstances to which I think it is proper to have regard. First, he genuinely and not irrationally believed from what Mrs Tzannes told him that she had obtained any necessary council approval for the clearing work: see [53] - [54] above. Secondly, he carried out the work, in which he was inexperienced, not as part of a business but reluctantly at the request of Mrs Tzannes because of a family connection. Thirdly, the mitigating factors referred to at [58] above. Fourthly, although there was environmental harm, the site appears to be revegetating satisfactorily and the harm was not, of course, in the category of harm that may kill the earth such as in an oil spill. Fifthly, the offence is at the low end of criminality. Sixthly, his limited means: see [59] - [61] above. 74 On the other hand, the defendant knew that the council officers had not expressly approved clearing of trees and vegetation or the use of a bulldozer to clean up. In those circumstances it would have been prudent for the defendant to have checked, or to have requested Ms Tzannes to check, with the council whether the council approved the cleaning up being done by use of a bulldozer, which would necessitate clearance of trees and vegetation. As the defendant failed to do so, in my opinion considerations of general deterrence make it appropriate, in the circumstances of this case, to record a conviction in order to educate contractors and others who carry out development to take prudent steps to ensure that necessary approvals have been obtained.

75 In the unusual mitigating circumstances of the case against this particular defendant, and before considering his means, I would have been minded to impose a relatively lenient fine of $5,000 after allowing the full discount of 25 percent for the utilitarian value of the early plea of guilty. However, the meagre income of the defendant analysed at [59] - [61] above and the fact that I propose to order him to pay the prosecutor's costs which far exceed his historical annual income, persuade me that I should dispose of the proceedings, pursuant to s 10A(1) of the Sentencing Act, by convicting him without imposing any other penalty. Costs 76 The prosecutor seeks a costs order against the defendant. The defendant submits that either no costs order should be made or that any costs order should be deferred until after sentence has been passed in pending proceedings against Mrs Tzannes arising out of this incident. She has pleaded not guilty and those proceedings are scheduled to be heard in early 2009. It is usual to make a costs order against the defendant in cases such as this and I propose to do so in this case. The reasoning behind the defendant's alternative deferral proposal is that a substantial part of the prosecutor's costs are likely to be apportionable to both proceedings and that, therefore, it would be fairer to await the outcome of the proceedings against Mrs Tzannes. The prosecutor accepts that there are costs which are common to both proceedings and which should be apportioned fairly to each proceeding. However, the prosecutor agrees that it must apportion such common costs fairly; says that such apportionment was taken into account in its estimate of the $20,000 costs attributable to these proceedings; and submits that in the circumstances there is no point in deferring the making of a costs order against the defendant. I accept the prosecutor's argument.

Orders 77 The orders of the Court will be as follows:

1. The defendant is convicted of the offence as charged.
2. The defendant is to pay the prosecutor's costs as agreed or assessed.
3. The exhibits may be returned.

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