Burwood Council v Abdul-Rahman

Land and Environment Court (NSW)|2017-12-04|Before: Moore J

Introduction

The maximum penalty applicable for the conduct for which Mr Abdul-Rahman has been charged and found guilty, as at the time of its occurrence, was $500,000 (as the offending conduct is to be classified as a Tier 2 offence falling under s 125B of the EP&A Act). The maximum penalty reflects a public expression by the Parliament of the seriousness of the offence charged (Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698).

The 2015 amendments to the EP&A Act

In Willoughby City Council v Rahmani [2017] NSWLEC 166, I dealt with the 2015 amendments to the EP&A Act which had the effect of reducing the maximum penalty applicable to offences such as that with which Mr Abdul-Rahman has been charged from $1,100,000 to $500,000.

The statutory framework

The Crimes Sentencing Procedure Act 1999 (the Sentencing Procedure Act) sets out, in s 21A, a range of matters which are required to be taken into account in dealing with matters relating to the offending conduct in the circumstances of the Defendant. A limited number of those matters are engaged in these proceedings.

Introduction

I now turn to the relevant matters in s 21A of the Sentencing Procedure Act requiring to be considered.

Environmental harm

The tree which Mr Abdul-Rahman had removed was a healthy, mature Lemon-Scented Gum (Corymbia citriodora). It was in the front setback of his property and would have been prominent in its streetscape.
As a consequence, I am satisfied that it is appropriate to conclude that there was environmental harm occasioned by the removal of this tree.
In circumstances where there was no evidence of any arboricultural reason whatsoever to support its removal, this should be regarded as evidencing environmental harm of some significance and thus a factor of aggravation (Sentencing Procedure Act - s 21A(2)(g)).

Prior convictions

Mr Abdul-Rahman has two relevant prior convictions. These are (Prosecutor's submissions after [32]): 19 May 2016 at Burwood Local Court: Convicted and filed $3000 in relation to 1 x s.125 (1) Environmental Planning and Assessment Act 1979 (relating to the removal of 9 mature trees from 2 Culdees Road Burwood Heights). 19 May 2016 at Burwood Local Court: Convicted and filed $3000 in relation to 1 x s.125 (1) Environmental Planning and Assessment Act 1979 (relating to unlawful works at 2 Culdees Road, Burwood Heights).
These convictions are further factors of aggravation to be taken into account in determining the appropriate starting sentence for Mr Abdul-Rahman (Sentencing Procedure Act - s 21A(2)(d)).

Good character

Attached to Mr Abdul-Rahman's written submissions on sentence was a reference attesting to Mr Abdul-Rahman's good character. I informed Mr Abdul-Rahman of the necessity for this to be tendered. The reference was tendered as Exhibit 1 - this occurred without objection from the Prosecutor.
The reference was given by Imam Shady Alsuleiman, President of United Muslims of Australia. It is clear from the terms of the reference that the author of the reference does not acknowledge that he has been made aware of the offending conduct for which Mr Abdul-Rahman has been found guilty and stands to be sentenced.
Conventionally, for such a reference to weigh in assistance to a defendant, it would include an element that the offending conduct had been revealed to the author and that the author had given the character assessment in full knowledge of that offending conduct. Indeed, it is impossible to know if Mr Abdul-Rahman would have been given a reference in the terms tendered if he had disclosed this prosecution and his prior convictions.
As that is not the position with respect to Exhibit 1, I am not satisfied that Mr Abdul-Rahman should, as a consequence, receive any benefit of being regarded as of good character (Sentencing Procedure Act - s 21A(3)(f)).

Specific deterrence for Mr Abdul-Rahman

Mr Abdul-Rahman has accepted that he did not have the right to remove the tree.
I earlier set out Mr Abdul-Rahman's significant past experience with processes for property development and his interaction with the planning system.
In this regard, the Prosecutor submitted: It is submitted that in the instant case, specific deterrence is warranted. The Offender has previously been convicted in the Local Court at Burwood in respect of environmental offences. One offence, as referred to above, involved the unlawful removal of nine trees on the property. The other offence as referred to above involved unlawful works at the property. Further, the Offender is a person who frequently in involved in the development of property. It should be reinforced that flouting or ignoring the planning law will have ramifications.
Mr Abdul-Rahman's written submissions on this point said: As the defendant had no intention to breach the Environmental Planning and Assessment Act and in circumstances where, in good faith, he had authorised the removal of the dead tree, it would appear evident that there is not a likelihood of reoffending by the defendant.
Mr Abdul-Rahman's persistent submissions that I should accept that the tree was dead, when the evidence establishes the contrary to be true, demonstrate an unwillingness to accept the true characterisation of his conduct. He has demonstrated no insight whatsoever with respect to his offending conduct. I am unable to accept that there is no likelihood of his reoffending. Indeed, if the author of these submissions had been made aware of Mr Abdul-Rahman's prior relevant convictions, the author has chosen to ignore the relevance of that fact as a factor to be considered on the question of necessity for specific deterrence for Mr Abdul-Rahman.
Therefore, to reinforce Mr Abdul-Rahman's understanding of the requirement to obtain development consent in circumstances where that is mandated, unless there is a proper basis not to do so, it is appropriate that there be a significant element of specific deterrence in the sentence to be imposed (Sentencing Procedure Act - s 21A(3)(g)).

Contrition and remorse

Mr Abdul-Rahman had the opportunity during his oral submissions at the sentencing hearing to express genuine contrition and remorse for his offending conduct. He did not do so. Mr Abdul-Rahman's oral submissions on sentence were brief and primarily alleged a conspiracy against him by the Council and its officers. He said, relevant to removal of the tree (Transcript 4 December, page 4, lines 29 to 40): RESPONDENT: Your Honour I bought that property I think a few years back. I was going to make it my house to live in, that's what I do live in and it was full of shrubs and no fences and nothing like that. I went ahead and cut a lot of the trees down in the beginning and I didn't believe they were any protected trees. Now the tree that the council were talking about, I got advised - some advice from outside and said the tree was dead and we'll cut it. Now I didn't go to council, I probably should have asked council, but I didn't go to council. And I took their evidence, or their advice and cut the tree down when I cut the tree down.
Mr Abdul-Rahman's oral submissions persisted in asserting that the tree was dead despite the compelling evidence that it was healthy at the time he ordered its removal.
Mr Abdul-Rahman's written submissions, relevantly, said: Having become aware of the judgment of the court in proceeding Burwood Council v Abdul-Rahman [2017] NSWLEC 103, the defendant now understands that despite his belief that he was acting in good faith, his actions constitute the offence. Now having that knowledge, he is sorry for the breach. Now that he is aware that his actions constitute an offence, he is indeed sorry that he had authorised the removal of the tree.
As can be seen, the author of these submissions suggests that I should conclude that Mr Abdul-Rahman was acting in "good faith". This proposition is advanced on the basis that, contrary to the evidence and my finding on it, the tree was dead.
I am satisfied that, to the limited extent these oral and written submissions might address whether Mr Abdul-Rahman has expressed contrition and remorse for the removal of the tree, I do not consider that these expressions are genuine. I am satisfied, having seen and heard Mr Abdul-Rahman, that his persistent assertion that the tree was dead not only demonstrates a complete lack of insight into his offending conduct but also that he has no remorse for his actions (Sentencing Procedure Act - s 21A(3)(i)).

General deterrence

It is also necessary to send a broader message of the importance of upholding the integrity of the planning system, generally, and of the necessity to obtain development consent when this is required (Mosman Municipal Council v Menai Excavations Pty Limited (2002) 122 LGERA 89; [2002] NSWLEC 132 at [35]).
Such reinforcement of the necessity to obtain development consent for tree removal, as is the breach by Mr Abdul-Rahman, is also directed to the broader public who might contemplate commissioning contractors to undertake tree removal activities without the required consent.

The s 10 Sentencing Procedure Act submission

The Sentencing Procedure Act contains a beneficial provision in s 10 Dismissal of charges and conditional discharge of offender. The provision, relevant to my consideration in these proceedings, is in the following terms: 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: an order directing that the relevant charge be dismissed, an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years, 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: that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or that it is expedient to release the person on a good behaviour bond. (2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person. (2B) ... (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: the person's character, antecedents, age, health and mental condition, the trivial nature of the offence, the extenuating circumstances in which the offence was committed, any other matter that the court thinks proper to consider.
Mr Abdul-Rahman's written submissions proposed: In the circumstances outlined above, the only conclusion that could be reached is that the defendant authorised the removal of the tree on the understanding that the tree was dead. That understanding being based upon professional advice provided to him by a qualified arborist. In authorising the removal of the tree, under no circumstances did Mr Abdul-Rahman realise that consent under the Environmental Planning and Assessment Act would be required based upon the advice provided by his arborist. The defendant did not conceal the fact that he authorised the removal of the dead tree and he made such admission at an early stage, prior to any proceeding being commenced by the prosecutor. The fact that the defendant was unrepresented in the proceeding lead to him not understanding the fact that, from a technical point of view, despite the fact that he made an honest mistake, he had at law committed an offence under the Environmental Planning and Assessment Act. Had he been a lawyer or been legally represented in proceeding Burwood Council v Abdul-Rahman [2017] NSWLEC 103, he may well have been advised not only that his early admission was positive but that the only conclusion that would be drawn by a judge of the court was that he was guilty of the offence. The defendant should not be penalised for the fact that he could not afford legal representation in the proceeding. In all of the above circumstances, it would be submitted on the part of the defendant that the court grant the defendant the benefit of a section 10 pursuant to the Crimes (Sentencing Procedure) Act 1999 such that no conviction is recorded for the offence. Given the defendant's limited financial means, it is also submitted on the part of the defendant that any fine be at the very low end of the scale if one is to be applied by the court.
The first proposition, that Mr Abdul-Rahman did not "realise that consent under the Environmental Planning and Assessment Act would be required based upon the advice provided by his arborist" is rejected for two reasons. First, Mr Abdul-Rahman's persistent assertion that the tree was dead is entirely unsupported by the evidence. Second, Mr Abdul-Rahman's necessarily inferred familiarity with the planning system means I must conclude that he simply decided to have the healthy tree removed and had this done despite what might be the requirements for consent for this to occur.
During the course of the sentencing hearing, the Prosecutor commenced addressing this submission. I cut off this section of his submissions, saying (Transcript 4 December, page 2 lines 30 to 34): SHNEIDER: Look only in respect of s 10, dealing with the matter under s 10 of the Crimes (Sentencing Procedure) Act. What the Court would have to be minded of I suppose-- HIS HONOUR: You do not need to address me on that point.
To suggest, in light of: 1. Mr Abdul-Rahman's persistent assertion that the tree was dead in circumstances where I am satisfied, beyond reasonable doubt, that the tree was a healthy, mature specimen; 2. The complete absence of any mitigating factors in Mr Abdul-Rahman's favour; and 3. Mr Abdul-Rahman's extensive experience with the planning system, that Mr Abdul-Rahman should be given the benefit of being dealt with pursuant to s 10 of the Sentencing Procedure Act is risible and was rejected out of hand by me.

Determining an appropriate penalty

The appropriate process to be undertaken in sentencing Mr Abdul-Rahman is one which requires me to perform an instinctive synthesis of all relevant factors of his offending, including aggravating factors, in order to determine what might be an appropriate starting penalty to punish Mr Abdul-Rahman's offending conduct (Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25). This instinctive synthesis requires me to have regard to whereabouts within a range of seriousness the offending conduct should be regarded as falling, having regard to the maximum penalty of $500,000 for such offences.
Camilleri's Stock Feeds (also at [698]) confirmed 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. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the scale of penalty set by the legislature from zero to the maximum.
The upper limit for the range within which the sentence for each offence falls must not exceed that which is proportionate to the gravity of the offence in light of its objective circumstances (Veen v The Queen (No 2) 164 CLR 465; [1988] HCA 14). The lower limit is fixed to permit allowance for subjective factors, as those relevant to the offender cannot produce a sentence that fails to reflect the offences' objective seriousness.
It is also appropriate to have specific regard to the two factors of aggravation earlier set out. These warrant imposition of a greater penalty than might have arisen had they been absent.
In undertaking this instinctive synthesis of the relevant factors, in order to derive an appropriate starting sentence for Mr Abdul-Rahman, I have concluded that his offending conduct is to be regarded as being toward (but not at) the bottom of the mid-range for such offences. A description of that nature, of course, is not a matter of mathematical precision. I have concluded that the singular factors which warrant consideration in assessing what is the appropriate starting penalty for Mr Abdul-Rahman are: 1. The tree that was removed was a mature tree of significant size and canopy spread; 2. The tree was in good health at the time Mr Abdul-Rahman ordered its removal; 3. As the tree was in the front setback of Mr Abdul-Rahman's property, the tree would have made a positive contribution to the streetscape of the heritage conservation area within which it was growing; 4. Retention of the tree was a requirement of the Council's Local Environmental Plan unless consent was given by the Council for its removal; 5. Mr Abdul-Rahman has two relevant prior convictions; and 6. Mr Abdul-Rahman has had extensive experience with (and, it is reasonable to infer, knowledge of) the planning system.
Mr Shneider provided an analysed list of fifteen cases (extracted from the decision of Preston CJ in Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349; [2006] NSWLEC 47) where penalties had been imposed by this Court for the removal of trees without the obtaining of the appropriate approval from the relevant local government authority or in breach of a condition of development consent.
These cases, he submitted, should provide guidance as to the range within which I might regard Mr Abdul-Rahman's offending conduct for the purpose of assessing the appropriate penalty to be imposed on Mr Abdul-Rahman.
However, these cited cases are dated. It is permissible to conclude that contemporary standards require historical sentencing patterns to be reconsidered. As Preston CJ observed in Chief Executive of the Office of Environment and Heritage v Cory Ian Turnbull [2017] NSWLEC 140 at [240]: Provision needs also to be made to account for views changing over time about the sentence that should be imposed in particular cases. In Director of Public Prosecutions v Dalgliesh (a pseudonym) at [51] the High Court quoted with approval the observations in Director of Public Prosecutions (VIC) v OJA (2007) 172 A Crim R 181 at 196 [30]-[31]: "'[T]he need to have regard to current sentencing practices does not mean that the measures of manifest excessiveness and manifest inadequacy are capped and collared by the highest and lowest sentences for similar offences hitherto imposed. … [I]t should not be thought that the statutory requirement to have regard to current sentencing practices forecloses the possibility of an increase or decrease in the level of sentences for particular kinds of offences. Over time, views may change about the length of sentence which should be imposed in particular cases and, when that occurs, the notions of manifest excessiveness and manifest inadequacy will be affected. … One must allow for the possibility that sentences to this point have simply been too low.'"
The sentences cited in the 2006 decision in Cameron v Eurobodalla Shire Council (a decision dealing with a maximum penalty of $110,000) are dated. The starting penalties in Burwood Council v Jarvest Pty Ltd [2011] NSWLEC 109 ($60,000); Ku-ring-gai Council v Edgar [2017] NSWLEC 49 ($45,000) and Willoughby City Council v Rahmani ($90,000) perhaps provide some better contemporary guidance of what might be appropriate penalty benchmarks before factors of aggravation are triggered to raise any initial potentially appropriate penalty.
Under these circumstances and having regard to the two aggravating factors, I consider that a starting penalty of $50,000 is appropriate and is not so above the amounts imposed for lesser offending conduct to be unreasonable.

Mr Abdul-Rahman's financial capacity to pay a penalty

The potential to reduce what might otherwise be the applicable penalty when assessing the quantum of fine to be imposed on an offender arises from s 6 of the Fines Act 1996 (the Fines Act), a provision which reads: 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: such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and such other matters as, in the opinion of the court, are relevant to the fixing of that amount.
In his written submissions, Mr Abdul-Rahman addressed the question of his capacity to pay a financial penalty. These elements of his submissions was in the following terms: Mr Abdul-Rahman is currently not employed but seeks employment and does not have the financial means to pay any fine that may arise if a penalty is ordered by the court. Furthermore, his prospects of obtaining employment would be severely diminished if a criminal conviction was recorded against him. and … Given the defendant's limited financial means, it is also submitted on the part of the defendant that any fine be at the very low end of the scale if one is to be applied by the court.
As earlier noted, the Prosecutor's submissions were made in anticipation of what might be said on behalf of Mr Abdul-Rahman. The Prosecutor's submissions, understandably, did not address this aspect of the Defendant's submissions given the complete absence of evidence from Mr Abdul-Rahman on this point.
In a number of sentencing judgements during 2017, I have needed to address submissions concerning whether or not it would be appropriate to exercise the discretion available pursuant to s 6 of the Fines Act to reduce the otherwise appropriate penalty to be imposed on a defendant with such reduction to be contemplated in light of the defendant's financial circumstances. In each instance, specific written and/or oral evidence was given which was able to be tested to ascertain whether there was any basis to contemplate making such a reduction (Wollongong City Council v Eldridge [2017] NSWLEC 35; Ku-ring-gai Council v Edgar; Willoughby City Council v Rahmani).
In these present proceedings, I have no evidence whatsoever from Mr Abdul-Rahman concerning his financial circumstances. Bare assertions contained in the submissions written on his behalf provide absolutely no basis upon which I could contemplate any reduction from the penalty which is otherwise appropriate to be imposed on him for his offending conduct.

The option to order planting a replacement tree

As with the new three tier penalty structure, the provisions of Part 8.3 of the Protection of the Environment Operations Act 1997 (the POEO Act) have been made available to the Court for sentencing purposes for offences of the nature of which Mr Abdul-Rahman was found guilty by me last August. These provisions are made available for sentencing for offences against the EP&A Act by virtue of s 126 of the EP&A Act, a provision which expressly mandates the availability for sentencing of the full range of powers under Part 8.3 of the POEO Act when sentencing for offences committed in breach of the EP&A Act.
These powers would enable me to order that Mr Abdul-Rahman plant a replacement tree as a compensatory measure for the removal of the mature Lemon-Scented Gum for which removal he had engaged Mr Taleb. I have concluded that it would not be appropriate, despite the availability of the power, to make such an order. I have so concluded because the Prosecutor has not sought such an order.
As a consequence, Mr Abdul-Rahman has not had notice of the possibility of the imposition of such a requirement and, therefore, has had no opportunity to make submissions concerning this possible eventuality.
Had Mr Abdul-Rahman been legally represented and I had wished to contemplate the making of such an order, it would have been appropriate to raise that issue with his legal representative at the sentencing hearing; provide an opportunity for instructions to be given to that representative; and deal with it on the basis of such submissions as might have been made. However, in circumstances where Mr Abdul-Rahman was self-represented, it was not possible to follow that course and, therefore, as a result, I do not propose to impose a requirement for the planting of a replacement tree, no matter how appropriate such a course would otherwise have been.

No discount from Mr Abdul-Rahman's starting penalty

Having concluded that the appropriate starting penalty is $50,000, it is then necessary to consider what discount, if any, should be given after having regard to Mr Abdul-Rahman's subjective factors.
Given that I have been unable to conclude that there are any subjective factors weighing in Mr Abdul-Rahman's favour, I am satisfied that it is inappropriate to apply any discount to my initial determination of the appropriate starting penalty. The consequence of this is that the fine to be imposed on Mr Abdul-Rahman is $50,000.

Orders

It follows from that which I have set out above, that the appropriate orders of the Court are: 1. Pursuant to s 125(1) of the Environmental Planning and Assessment Act 1979, Omar Abdul-Rahman (the Defendant) is convicted of the offence that, contrary to section 76A(1)(a) of that Act, he carried out development in circumstances where consent was required to be obtained for the development and no consent was sought prior to carrying out the development; 2. The Defendant is fined $50,000; and 3. The Defendant is ordered to pay, to the Prosecutor, the Prosecutor's costs as agreed or assessed.

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. Decision last updated: 13 December 2017

Introduction

On 14 August 2017, I found Mr Abdul-Rahman guilty of a breach of the Environmental Planning and Assessment Act 1979 (the EP&A Act) (see Burwood Council v Abdul-Rahman [2017] NSWLEC 103). Mr Abdul-Rahman was self-represented at trial and at the sentencing hearing. On both occasions, this required me to give him appropriate procedural assistance (but not assistance with the merits of his case).
When I found Mr Abdul-Rahman guilty of the charge, I set the matter down for a sentencing hearing on 4 December 2017. At that time, I also made directions setting the timetable necessary for preparation leading up to this sentencing hearing.

Mr Abdul-Rahamn's experience with the planning system

Since early 2013, Mr Abdul-Rahman has been the applicant for development consent on whose behalf Class 1 appeals have been made to the Court on nine occasions where there has been a deemed or actual refusal of a development application. These appeals have involved four councils (Ashfield Council; Bankstown City Council (2); Parramatta City Council and Strathfield Council (5)). In at least one instance, the development for which consent was sought from the Court was a substantial one - in a contested hearing before Smithson C (Abdul-Rahman v Strathfield Municipal Council [2016] NSWLEC 1393) consent was being sought to construct a 3-4 storey residential flat building comprising 20 apartments above two levels of basement car parking.
Mr Abdul-Rahman said, in the submissions written on his behalf: … secondly, that he did not understand that what had occurred equated to a breach of the Environmental Planning and Assessment Act.
I am unable to accept this submission given Mr Abdul-Rahman's extensive known experience with the planning system. This is a purely self-serving submission. It is rejected.
As a consequence, Mr Abdul-Rahman is not to be regarded as a person unfamiliar with, or unsophisticated about, the requirements of planning regulation in NSW generally or with local environmental plans in particular - indeed, the contrary is demonstrably the position. This is a matter to be taken into account in the necessity for specific deterrence for Mr Abdul-Rahman as later discussed.

(2006) 146 LGERA 349

At a glance

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