Byron Shire Council v Fletcher

Byron Shire Council v Fletcher - [2005] NSWLEC 706 - NSWLEC 2005 case summary — Zoe

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The defendant 4 The defendant is an earthmover by trade and has operated as an earthmover for thirteen years. He has cleared other sites similar to the land. Clearing event 5 On 6 July 2004, the defendant, assisted by a Mr Warren Thorne, commenced cutting, removing and/or destroying trees on the land. Mr Thorne acted under the direction of the defendant. The defendant and Mr Thorne continued cutting, removing and/or destroying trees on the land until 15 July 2004. The defendant and Mr Thorne cut, removed and/or destroyed trees by means of an excavator. 6 The offence was discovered as a result of a complaint that had been made to Byron Shire Council. On 14 July 2004, a council officer named Andrew Hill telephoned the defendant and arranged to meet the defendant on the land the following day, 15 July 2004. 7 On 15 July 2004, Mr Hill and another council officer, Mr Jeff Cox, entered the land. They observed a light blue excavator in operation at the time. Mr Cox undertook a tree count at the entrance to the subject property whilst Mr Hill spoke to the defendant. 8 During the conversation Mr Hill asked the defendant: "Do you have any approvals to undertake the works in progress?" The defendant said: "Yes, I do". 9 The defendant then showed Mr Hill some documents, one of which appeared to be a planning certificate issued under s 149 of the EPA Act. The defendant said: "See the building envelope on this plan? That's what I can do. I'm allowed to prepare this site for a house." 10 The document to which the defendant was apparently referring in that conversation was an extract from the deposited plan. The subject property, Lot 8 in Deposited Plan 865388, is shown to be burdened by a restriction on use. There is a building envelope with a radius of twenty metres. The building envelope is located towards the centre of the land on the deposited plan. It is this building envelope to which the defendant was making reference in the conversation with Mr Hill. 11 In a subsequent record of interview between the defendant and Mr Kevin Hawkins, a compliance officer with the prosecutor, the following conversations occurred. 12 Mr Hawkins said: "Are you aware that a number of species of trees were removed that required prior consent of council?" The defendant said: "No". 13 Later, Mr Hawkins asked: "Do you have evidence or a copy of any approval to remove trees on the site?" The defendant said: "Only what is in s 149". 14 Mr Hawkins said: "Are you aware ….if that is sufficient approval, if any, to remove trees protected by the tree preservation order?" The defendant said: "I thought this was approval within the building envelope". Again this would appear to be a reference by the defendant to the deposited plan showing the building envelope. 15 On 16 July 2004, when requested by the council, the defendant promptly signed an undertaking in favour of the council not to cause, suffer or permit the carrying out of building works at the subject property, including tree removal, without the council's consent first being obtained. The defendant honoured the undertaking once signed. 16 Nine species of native trees were cut, removed and/or destroyed at the subject property. The majority of the trees removed were of two species, namely brush box (Lophostemon confertus) and flooded gum (Eucalyptus grandis). 17 The stems of each of the native tree species cleared were in excess of three metres in length. Trees adjacent to the area of the trees removed are indicative of the fact that the trees removed were approximately twelve to twenty metres in height. 18 The total number of trees removed was around fifty.

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19 The total area estimated to be cleared of trees was between approximately 1250 square metres and 2500 square metres. The total area of the land is 6050 square metres. The area of the building envelope contained within the circle with a radius of twenty metres is near the lower end of the estimate of the area cleared, namely 1250 square metres. 20 The trees removed form part of a wet sclerophyll forest. The species tallow wood (Eucalyptus microcorys) is a primary browse species for koala, fauna listed as a vulnerable species under Sch 2 of the Threatened Species Conservation Act 1995. However, there is no evidence of koala sightings in the area of the land. Byron Local Environmental Plan 21 Byron Local Environmental Plan 1988 ("the Byron Plan") applies to the land. The Byron Plan zones the subject property as Zone No. 1 (c2) (Small Holdings (c2) Zone). The objectives of that zone include allowing development of an essentially rural nature only as well as ensuring that no development occurs within the zone until the likely impact of the development on the locality has been considered. 22 Within Zone No. 1 (c2), the following development can be carried out without development consent: "Agriculture (other than animal establishments; bushfire hazard reduction; forestry)". All other development within the zone either requires consent or is prohibited. 23 As stated above, the defendant's expressed intention in cutting, removing and/or destroying trees on the subject property was to create a building envelope. Accordingly, development consent was required. 24 No development consent for the work carried out by or under the direction of the defendant has ever been issued by the council. Tree preservation order 25 On 3 December 2002, the council made a tree preservation order in accordance with cl 52 of the Byron Plan. The tree preservation order applies to any species of tree exceeding three metres in height, subject to a number of exceptions. None of the exceptions applied in respect of the development carried out by the defendant.

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31 Fourthly, there is a need for even-handedness. Mr Howard referred to the High Court's decision in Lowe v R (1984) 154 CLR 606 at 610-611 where Mason J stated: "Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of justifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community." 32 Mr Howard also referred to the decision of the New South Wales Court of Criminal Appeal in R v Oliver (1980) 7 A Crim R 174 at 177: "The first initial consideration is the statutory maximum prescribed by the legislature for the offence in question. The legislature manifests its policy in the enactment of the maximum penalty which may be imposed. The courts are, of course, absolutely bound by the statutory limit itself as well as by the legislative policy disclosed by the statutory maximum. ... The second initial consideration is the ascertainment of the existence of a general pattern of sentencing by criminal courts for offences such as those under consideration. The task of a sentencing judge, no less than the task of an appellate court, is to pursue the ideal of even-handedness in a matter of sentencing. Full weight is to be given to the collective wisdom of other sentencing judges in interpreting and carrying into effect the policy of the legislature. That collective wisdom is manifest in the general pattern of sentences currently being passed in cases which can be recognised judicially as relevant to the case in hand. This is not to suggest that sentences are to be arbitrarily dictated by mathematical application of statistics. There is an enormous difference between recognising and giving weight to the general pattern as a manifestation of the collective wisdom of sentencing judges on the one hand and, on the other hand, forcing sentencing into a straight-jacket of computerisation. There is, moreover, always a danger, as is recognised on the civil side in the assessment of general damages, of seeking to use a factual assessment in one case as the legal precedent or authority to govern the decision in another."

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33 Mr Howard handed up as an aide memoire a schedule of sentences imposed for unlawful tree removal in other cases, both in this Court and in the Court of Criminal Appeal. In particular, Mr Howard referred to as relevant the decisions of Council of Camden v Tax (2004) 137 LGERA 388, McClellan J ($45,000 before discount reducing to $30,000 after discount), Newcastle City Council v Pepperwood Ridge Pty Limited (2004) 132 LGERA 388, Pain J, ($80,000 before discount reducing to $68,000 after discount), and Hornsby Shire Council v Khoury [2003] NSWLEC 83 (25 October 2002), Pearlman J ($30,000 reducing to $15,000 after discount). 34 Mr Howard referred to the differences in the facts of the subject case and the facts of those cases as including: an absence of the aggravating factors held applicable in those cases, the low environmental harm, an absence of intention to disobey the law, and a lower level of culpability of the defendant. 35 Fifthly, Mr Howard acknowledged that the defendant had entered a plea of guilty at the earliest practicable opportunity. Accordingly, Mr Howard submitted that the defendant was entitled to the maximum discount reflecting the utilitarian benefit of an early plea of guilty as stated by the Court of Criminal Appeal in its guideline judgment in R v Thomson (2000) 49 NSWLR 383 at 419 [160], namely 25 per cent. 36 Sixthly, Mr Howard said that the prosecutor was not seeking an order for remediation of the land under s 126(3) of the EPA Act. 37 In conclusion, Mr Howard submitted that the defendant's conduct was at the lower end of the scale and a sentence should appropriately reflect that fact. Defendant's submissions 38 Mr Newport of counsel appeared for the defendant. He made the following submissions. 39 First, the defendant had entered an early plea of guilty and should be entitled to the maximum discount reflecting the utilitarian benefit of a plea of guilty, namely 25 per cent. 40 Secondly, the defendant had made an immediate, open and frank admission as to his conduct and provided a reason for it to the council officers when they visited the site. The defendant made no attempt to hide either his conduct or the reasons for the conduct. 41 Thirdly, the defendant co-operated significantly with the prosecutor, both at the time of the council's inspection and subsequently. The defendant gave an undertaking when requested to cease work on 16 July 2004 and honoured the undertaking. The defendant also participated voluntarily in two records of interview with council officers. 42 Fourthly, there is no suggestion that the defendant is likely to re-offend and accordingly there is no need for a specific deterrence by way of sentence. 43 Fifthly, the defendant has no prior convictions. 44 Sixthly, there was low environmental harm. In any event, such harm needs to be considered in the context of the fact that a building envelope was provided for and could, subject to obtaining the necessary development consent, be used to erect a dwelling house. Principle of proportionality 45 A basic principle of sentencing law is that the sentence must reflect both the objective circumstances of the offence and the personal or objective circumstances of the defendant: Veen v R (No. 1) (1979) 143 CLR 458 at 490. Veen v R (No. 2) (1988) 164 CLR 465 at 472. This is the principle of proportionality. Objective circumstances 46 A sentence "should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances": Hoare v R (1989) 167 CLR 348 at 354. Maximum penalty 47 The first of the objective circumstances relevant to determining the gravity of the crime is the maximum statutory penalty. "The maximum penalty available for an offence reflects the public expression of Parliament of the seriousness of the offence": Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 698. See also R v Oliver (1980) 7 A Crim R 174 at 177, R v H (1983) A Crim R 53 at 65 and Axer Pty Limited v Environment Protection Authority (1993) 113 LGERA 357 at 359. 48 At the time of commission of the offences, the maximum penalty for the offence was $1.1 million.

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Defendant's state of mind 56 A third objective circumstance relevant to determining the seriousness of a crime is the state of mind of the offender at the time of the offence. The state of mind can have the effect of increasing the seriousness of that crime. For that reason, it becomes an aggravating feature of the offence and is taken into consideration when assessing the objective gravity or circumstances of the offence. 57 The extent to which the offences were foreseen, negligent, or the consequence of conduct which was intended, will also be relevant: Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 700. 58 Here, the defendant did not deliberately breach the law. The defendant was not aware that development consent was required to carry out the clearing activities and did not carry out the clearing in defiance of the law. The situation of this defendant may be contrasted to that of the defendant in the case of Council of Camden v Tax (2004) 137 LGERA 368 at 372 [26] where McClellan J found: "I am satisfied that the defendant knew before authorising removal of the trees that development consent was required and he was conscious of the fact that in authorising the removal of the trees he was committing a breach of the law." 59 Nevertheless, the offence was the consequence of conduct which was intended by the defendant. The defendant stated that the conduct was the product of a mistake as to what was permitted. The defendant said that he relied on the deposited plan which showed a building envelope and which he said was attached to a certificate under s 149 of the EPA Act issued by the respondent to the defendant. A certificate issued under s 149 of the EPA Act contains statements as to the relevant environmental planning instruments and their application to the land. The defendant would have had clear notice of the applicability of the Byron Plan. Proper inquiries would have revealed the necessity for the obtaining of development consent before carrying out the clearing activities. 60 In this area of the law, the purpose of sentencing of public deterrence is of central importance. The decisions cited by Mr Howard of Mosman Municipal Council v Menai Excavations (2002) 122 LGERA 89 and Sutherland Shire Council v Turner [2004] NSWLEC 774 are relevant. As therein stated, an important aspect of sentencing is to ensure that persons do take steps to obey the law by finding out when development consent is required and obtaining such consent. 61 Also of relevance is the dicta of McClellan J in Council of Camden v Tax (2004) 137 LGERA 368 of 372 [28] and [29]: "[28] The necessity for the protection of vegetation in the community is now accepted in virtually every area of the state. Special legislation has been provided in relation to rare species and ecological communities but beyond that legislation, as the Local Environmental Plan in this case illustrates, steps have been taken to ensure that in areas where development may be appropriate, decisions with respect to the grant of development consent are taken after regard is had to the value and significance of the vegetation on any parcel of land. As this Local Environmental Plan makes plain, that protection has been extended even to land which is otherwise identified as suitable for rural or rural-related uses.

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Plea of guilty 67 The defendant has pleaded guilty to the offence at the earliest available opportunity. Section 22 of the Crimes (Sentencing Procedure) Act 1999 expressly requires the Court to take into account the fact that the offender has pleaded guilty and when the offender pleaded guilty and accordingly the Court may impose a lesser penalty than it would otherwise have imposed. 68 A guideline judgment in respect of the discount for a plea has been given by the Court of Criminal Appeal in R v Thomson (2000) 49 NSWLR 383. This judgment continues to have force in New South Wales despite the decision of the High Court in Wong v R (2001) 207 CLR 584 and R v Cameron (2002) 209 CLR 339 because of s 22 of the Crimes (Sentencing Procedure) Act 1999: see R v Sharma (2002) 54 NSWLR 300 at 315 and 318. 69 A plea of guilty can be of utilitarian value and can also show contrition and remorse. 70 In R v Thomson (2000) 49 NSWLR 383 at 419 [160], Spigelman CJ said that the utilitarian value of a plea to the criminal justice system should generally be assessed in the range of ten to twenty-five per cent discount on sentence. 71 In this case, the proceedings first came before the Court on 22 September 2005. On that occasion the prosecution had not completed its evidence and the matter was stood over to 21 October 2005. On 21 October 2005, the defendant entered a plea of guilty. 72 I find that the defendant is entitled to a discount of twenty-five per cent for the entry of a plea of guilty at the earliest available opportunity. It reflects the full utilitarian value of the plea to the criminal justice system. 73 However, there is little other evidence of remorse or contrition, that is to say, other than the entry of the plea of guilty. 74 In some circumstances, the making of restitution or compensation can provide evidence of remorse and contrition. Where restitution or compensation is made, it would justify a reduction in sentence: Mickelberg v R (1984) 13 A Crim R 365 at 370 and s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999. 75 However, in this case the defendant has not made any attempt at remediation of the land that was cleared. For instance, there has been no replanting on any part of the land. It is true that the defendant, through the company of which he is the sole director and secretary, is no longer in a position of control in relation to the land. The land has been sold. However, prior to the sale there was no remediation of the land. It is also true to note that the prosecutor no longer seeks an order for remediation under s 126(3) of the EPA Act. However, that is largely due to the fact that there has been a change of ownership. 76 I do not take the fact of the absence of remediation as an aggravating circumstance. It cannot increase the penalty. I merely record the fact to show that there cannot be a further discount for contrition or remorse as a result of the making of any restitution or compensation by the defendant.

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