Campbelltown City Council v Josevski

Blue Mountains City Council v Carlon [2008] NSWLEC 296 Blue Mountains City Council v Tzannes [2009] NSWLEC 19 Byron Shire Council v Fletcher [2005] NSWLEC 706, (2005) 143 LGERA 155 CASES CITED: Cameron v Eurobodolla Shire Council [2006] NSWLEC 47, (2006) 146 LGERA 349 Council of Camden v Tax [2004] NSWLEC 448, (2004) 137 LGERA 368 Council of the City of Gosford v Tauszik [2005] NSWLEC 266 Director-General of the Department of Environment and Climate Change v Hudson [2009] NSWLEC 4 Garrett v Freeman (No 5), Garrett v Port Macquarie Hastings Council [2009] NSWLEC 1

PROSECUTOR: Mr T. Howard SOLICITORS: Hwl Ebsworth LEGAL REPRESENTATIVES: DEFENDANT: Mr C. Gough SOLICITORS: Storey & Gough

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

EXTEMPORE JUDGMENT 1 HIS HONOUR: In early January 2008, the defendant, Mr Cvetko Josevski, poisoned six trees on his residential rural property at Minto Heights without development consent. He thereby committed, and has pleaded guilty to, an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) in carrying out development which was forbidden by s 76A(1)(a) in that the development required development consent which had not been obtained. He is now before the court for sentencing. AGREED FACTS 2 The facts set out in paras 3 to 18 below are agreed between the parties. 3 Interim Development Order No 13 - City of Campbelltown (`IDO 13') applies to the subject land (Land). IDO 13 is Annexure A to these agreed facts. The Land is, and at all relevant times was, zoned 7(b) Scenic Protection Area under IDO 13.

"8(1) Except with the consent of Council and subject to conditions that may be imposed by the Council, a tree having a height exceeding 3 metres shall not be ringbarked, cut down, topped, lopped or wilfully destroyed.

(2) This clause shall cease to operate whenever an order made pursuant to clause 9 is in force which order contains provisions inconsistent with this clause." 5 As at the date of the commission of the offence, the prosecutor had not made a tree preservation order pursuant to clause 9 of IDO 13. Consequently, clause 8(1) continued to apply to the land to which IDO 13 applied, including to the Land. 6 As at the date of the alleged offence, Development Control Plan 114 was available to members of the public in hard copy at the offices of the prosecutor and via the prosecutor's website. DCP 114 served to notify members of the public that the cutting down, removal, wilful destruction etc of trees in the City of Campbelltown was prohibited other than with the Council's prior consent. DCP 114 also served to inform members of the public in respect of the procedure to be followed to apply for and obtain the requisite consent for such activities. DCP 114 was Annexure B to the agreed facts.

7 There are six large, mature Ironbark trees (Eucalyptus creba) located on the Land (the subject trees). The subject trees were located at various locations along the western boundary of the Land, which is also its street frontage to Hansens Road, and the southern boundary of the Land, which is also the boundary between the Land and the adjoining neighbour's land. The location of the trees is shown on a marked aerial photograph which was Annexure C to the agreed facts.

8 The subject trees range in height from 17 to 20 metres. They were of a native species indigenous to the area and were of high ecological value. They formed part of an ecological community known as `Shale-Sandstone Transitional Forest'. This community is, and at the time of the offence was, listed as an endangered ecological community under the provisions of the Threatened Species Conservation Act 1991 (NSW) and the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

9 Prior to the commission of the offence, five of the subject trees were in good health. One of the subject trees (Tree No 5) had suffered from borer damage and structural weakness, which would have warranted that tree's removal if the approval of the Prosecutor had first been sought and obtained.

10 On a day in early January 2008, the defendant drilled five holes, each about 100mm deep, into the trunks of each of the subject trees. He then poured roundup or some other similar glysophate-based poison into each hole. He later (on a date prior to inspections of the trees by council officers referred to below) attempted to conceal the holes by filling them with mud and placing a covering of bark over the exterior surface of each hole.

11 On 1 February 2008 at about 11:30am, Mr David Day, an Environmental Compliance Officer employed by the prosecutor, attended the land in response to a complaint from a member of the public the previous day in relation to the sudden decline in the condition of the subject trees. He observed that all of the leaves on the trees had turned brown and were falling off.

12 At about 3:00pm that day (1 February 2008), the defendant phoned Mr Day and they had the following conversation:

"Mr Day: `You are required to submit a tree application to Council before any trees can be removed. Also, given the height of the trees, you will need a qualified tree surgeon or arborist to cut the trees down'

Defendant:`I work for Campbelltown City Council and I have a chainsaw permit. I don't need an arborist to cut the trees down'." 13 On 6 February 2008, Mr Day again attended the Land, this time in the company of Mr Shane Funnell, a qualified arborist and horticulturalist (an employee of Mr Funnell also attended). Mr Day observed four to five holes drilled into each tree filled in with mud and covered with bark. Annexure D to the agreed facts were 19 photos Mr Funnell took of the trees on 6 February 2008 including the short description by way of text underneath each photo.. 14 Mr Funnell, also observed the holes in each tree and noted that an oily, sticky substance had been injected into each hole. He formed the view that the subject trees had been poisoned.

15 On 11 February 2008, the defendant was interviewed about the alleged poisoning of the trees by officers of the prosecutor. The defendant co-operated fully at this time by voluntarily taking part in the interview after having been cautioned in the usual terms. During the interview, he freely and candidly admitted to having poisoned the trees.

16 During the interview on 11 February 2008, the defendant answered questions as follows:

A. My neighbour spoke to me about branches falling on their premises; I wanted to stop the trees from growing so quickly. Also the concrete is cracking on the driveway and I had a sewer problem when I first moved in.

Q. Can you give me the reasons why you wanted to remove each tree?

A. I was worried about my neighbours and the sewer line.

Q. OK, but what about the trees at the front of the premises? They are not close to the sewer line or your neighbour's premises.

A. I thought they might fall on my house." 17 The defendant has co-operated fully with the prosecutor in the course of the investigation and in relation to the expeditious conduct of these proceedings. 18 The defendant entered a plea of `guilty' to the Court at the earliest opportunity after all information relating to the charges was received form the prosecutor. TELEPHONE CALL 1 FEBRUARY 2008

19 Although the defendant in cross-examination appeared to contest that he had said the opening words attributed to him in his telephone call to Mr Day on 1 February 2008, I accept what is recorded in that regard in the agreed facts. INTERVIEW 11 FEBRUARY 2008

20 The record of interview of 11 February 2008 referred to in the agreed facts evidences that immediately before the questions and answers recorded in the statement of agreed facts, there were the following questions and answers:

"DD [Mr Day]: Recently council received a call about a number of trees which appeared to have died on your property. On Wednesday, I inspected the trees with a tree surgeon that council engaged to look at the trees. We found about forty holes which had been drilled into the trunks. It appeared that the trees had been poisoned. The tree surgeon has taken samples from the trees and council is having them tested. What can you tell me about this?"

CJ [Defendant]: I am sorry, I only wanted to slow them down.

DD: Are you telling me that you poisoned the trees?

21 The defendant poisoned the trees because, in his perception, they presented a danger to his family from falling branches, their roots had blocked his sewer path and had caused damage to his concrete driveway and footpath. 22 He poisoned the trees by drilling holes into them and inserting poison. After he had poisoned the trees, he noticed they were changing colour and the leaves were dying. His son arranged for a number of contractors to inspect the trees and give him a price to remove them. Three contractors came onto his property. The defendant says that one of the contractors told him that council's consent was required for the trees to be removed; and that this was the first time he became aware that council consent was required. I understand from his cross-examination that this was between the time of his telephone call to Mr Day on 1 February and the visit by Mr Day and an arborist to the property on 6 February.

23 He also indicated in cross-examination, as I understand it, that it was between those dates that one of the contractors told him that he should fill the holes before making an application to the council as a council officer would come to the property to inspect the trees before they issued an approval. The defendant indicated that as a result of that conversation, he closed the holes he had drilled with mud and covered the holes with bark. I shall return to those events because the defendant's account is contested.

24 It is appropriate before considering the contested issues of fact to say something about the defendant and his mental capacity. 25 The defendant was born in 1959 in Macedonia. He was raised on a farm and attended school for eight years. In 1974, aged 15, he migrated to Australia with his mother. Thereafter he worked as a factory hand for an electrical company for two years. In 1977 he obtained employment with the Roads and Traffic Authority as a labourer and eventually was promoted to team leader. He was retrenched in 1994. He married in 1983 and has three sons born between 1986 and 1995. After his retrenchment, he worked for approximately five years for his brother-in-law in a line marking business. After a further labouring job, he joined the Campbelltown City Council, which is the prosecutor, as a labourer in their construction department. He remains employed by them at the present time.

26 The defendant is illiterate in English. He has fairly poor oral English comprehension and spoken skills. He was psychologically assessed for the purpose of these proceedings by a psychologist, Dr Alex Gilandas, and a psychiatrist, Dr Milorad Sokolovic. Their evidence indicates that:

(a) the defendant told them that he did not know that what he was doing in poisoning the trees was unlawful. As I have said, that is in contest and is a matter to which I will return;

(b) The defendant is of low to average intelligence and a "concrete" thinker. This is consistent with his restricted education in his native country to only eighth grade and the fact that he has been an unskilled labourer throughout his life. His restricted cognition and low level awareness is compounded by his English illiteracy. His insight and judgment are restricted by below average intelligence and English illiteracy. Dr Gilandas opined that his low average intelligence concrete thinking, illiteracy in English and ignorance of council rules is the best explanation for his behaviour. As I have indicated, the question of his ignorance of council rules is in issue but the other matters are not in issue.

(c) the defendant is genuinely and considerably remorseful about his conduct. PURPOSES OF SENTENCING

27 The purposes for which a Court may impose a sentence on an offender are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 as follows:

"(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,

(e) to make the offender accountable for his or her actions,

(g) to recognise the harm done to the victim of the crime and the community." 28 A sentence must reflect both the objective circumstances of the offence and the subjective circumstances of the defendant.

OBJECTIVE CIRCUMSTANCES Maximum Penalty 29 The maximum penalty applicable in respect of the offence is $1.1 million. The maximum penalty is the expression by parliament of the seriousness of the offence. The maximum sentence represents the worst possible scenario for the offence. It is common ground that the circumstances of the present offence are far removed from the worst category and indeed that the offence is at the low end of the range. The Place of the Offence in the Legislative Scheme 30 The carrying out of development without development consent undermines two of the objects of the EPA Act; encouragement of the promotion and co-ordination of the orderly and economic use and development of land, and the provision of increased opportunity for public involvement and participation in environmental planning and assessment: ss 5(a)(ii) and 5(c). 31 One of the species of the offence of carrying out development without consent is that which involves the unlawful destruction of trees or vegetation: Council of Camden v Tax [2004] NSWLEC 448, (2004) 137 LGERA 368 at [28]. McClellan J said at [28-29]:

"[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.

[29] Accordingly, in imposing a penalty in this particular case, it is most important to ensure that that penalty sends a message to the general community that before any activity is taken which may cause the demise of any tree development consent must be obtained from the local council. Unless that message is sent and received by the community, there will be difficulties in ensuring that the objective of carefully considering the necessity to retain vegetation in many areas, but particularly rural areas, is achieved."

Objective harm 32 The six trees poisoned by the defendant were of high ecological value. Five of them were healthy. One was in poor condition which, as stated earlier, would have warranted its removal if the approval of council had first been sought and obtained. 33 Although the trees formed part of a listed endangered ecological community, the number of healthy trees destroyed was only a very, very small part of that community. Moreover, the defendant consents to an order requiring the planting of replacement trees of a maturity and species which is to the satisfaction of the council, and I propose to make that order. Overall, therefore, the environmental harm is at the low end of the spectrum and, given the consent order to which I have referred, it is not permanent. Absence of aggravating factors 34 None of the aggravating factors listed in s 21A of the Crimes (Sentencing Procedure) Act apply. SUBJECTIVE MATTERS Purpose in Committing the Offence 35 His purpose was to protect his family and property. There was no financial business gain purpose.

State of mind 36 The most controversial aspect of the case is the defendant's state of mind. The defendant deliberately poisoned the trees. However, he has consistently maintained, including under cross-examination, that when he did so he was unaware that it was unlawful to do so without development consent. Following commencement of the council's investigation, the defendant deliberately filled with mud the holes he had bored in the trees and covered over the mud with bark. Again, he has consistently maintained, including in cross-examination, that he did so, not in order to conceal the poisoning, but because an unidentified tree removal contractor whom his son had arranged to visit the property, apparently after the council investigation commenced, told him to do so. He said that he did not know the reason but, as I understand it, simply did what he was told. 37 Having regard to the defendant's limited mental capacity, work experience and the psychological and psychiatric evidence and my assessment of him when giving evidence, I am prepared to give him the benefit of the doubt by concluding that he did not know when he poisoned the trees that he needed development consent to do so. However, I have concluded, after also taking into account the chronology of events, that he covered up the holes with the intention of concealing from the council investigator that he had poisoned the trees, and that by that time he had acquired an understanding that his conduct in poisoning the trees was unlawful. He told the council investigator in his phone call of 1 February 2008 that the trees were dead without disclosing that he had poisoned them. Shortly thereafter he went to considerable lengths to conceal the holes that he had made in the trees by placing mud in them and covering them with bark. Assuming that an unidentified tree removal person had told him to do so, I am unable to accept that his "concrete" thinking was such that he did not understand that he was deliberately attempting to conceal what he had done from the investigating council officer. On the contrary, I am satisfied that was his intention, and it was because he had acquired an understanding that the poisoning was unlawful Deterrence 38 The penalty in this case does not need to serve the function of a specific deterrent. It appears highly unlikely that the defendant will re-offend. However, there is a need for the penalty to serve as an effective general deterrent. The prosecutor submits, and I accept, that the poisoning of trees is offensive conduct which causes much disquiet in the community and is an offence which is typically difficult to detect. The defendant submits, and I accept, that the purpose of general deterrence is to deter those engaged in similar activities from committing like offences and that in the present case such persons are represented by individual home owners determining whether development consent should be obtained before removing trees, rather than developers and builders.

Early plea of guilty 39 The defendant pleaded guilty to the offence at the earliest opportunity after all information relating to the charges was received from the prosecutor. Accordingly, in accordance with established authority, the defendant is entitled to a discount on penalty of twenty five percent.

Contrition and co-operation 40 The defendant is contrite and has co-operated fully. He has expressed his sincere regret for his actions and has apologised for committing the offence. He now understands the serious nature of the offence. He accepts that the decision to poison the trees was completely wrong and takes full responsibility for that decision. As he works for the council, he says, and I accept, that it is a huge source of shame and embarrassment that he has had proceedings taken against him by his own employer. The experience has been costly in time, financially and in his reputation. He considers the experience to have been a valuable lesson and says he will make sure that he does not engage in conduct of this nature again.

Previous record 41 The defendant has no prior criminal record.

Character 42 The defendant is a person of good character. His motivations, as supported by the psychological reports, were to provide for the safety and welfare of his family and his home. He has been consistently employed. He has conducted himself, according to the evidence, as a good citizen. He has worked hard to provide financial and emotional support for his family which comprises his wife and three sons, the youngest of whom suffers from psychological problems for which professional mental health assistance has had to be obtained. I accept that his character is such that this prosecution has caused emotional and financial strain. Character references have been provided by two neighbours and they support the conclusion that he is a person of high character.

The defendant's financial means 43 The defendant is employed as a labourer with the prosecutor council. He is paid approximately $700 per week and his wife is only intermittently employed. He has a mortgage over the property and three dependent children. COSTS

44 The parties have agreed that the defendant should pay the prosecutor's costs as agreed or assessed. It is estimated by the prosecutor that they are likely to be between $15,000 and $20,000. TREE PLANTING AND MAINTENANCE ORDER

45 The parties have agreed that an order should be made pursuant to s 126(3) of the EPA Act that the defendant plant six replacement trees of a pot size of 100 litres, maintain them for three years and replant them if they die during the period. The cost to the defendant would be approximately $1,200. I propose to make that order. PARITY OF SENTENCING

46 I have considered the sentences and sentencing considerations in a number of cases of unlawful tree removal: Blue Mountains City Council v Tzannes [2009] NSWLEC 19; Director-General of the Department of Environment and Climate Change v Hudson [2009] NSWLEC 4; Cameron v Eurobodolla Shire Council [2006] NSWLEC 47, (2006) 146 LGERA 349; Blue Mountains City Council v Carlon [2008] NSWLEC 296; Byron Shire Council v Fletcher [2005] NSWLEC 706, (2005) 143 LGERA 155; Council of the City of Gosford v Tauszik [2005] NSWLEC 266; Council of Camden v Tax [2004] NSWLEC 448, (2004) 137 LGERA 368; and Garrett v Freeman (No 5), Garrett v Port Macquarie Hastings Council [2009] NSWLEC 1. CONCLUSION

47 The defendant submits that in all the circumstances the appropriate fine is $10,000. The prosecutor suggests that the fine should perhaps be of the order of about $20,000. I accept the defendant's submission. In my opinion, in all the circumstances of the case, including discounting for the early plea of guilty, a fine of $10,000 is appropriate. 48 The orders of the court are as follows:

1. The defendant is convicted of the offence with which he is charged.

2. The defendant is fined the sum of $10,000 to be paid to the registrar of the court within 28 days.

3. The defendant is to pay the prosecutor's costs of the proceedings as agreed or assessed.

4. Order pursuant to s 126(3) of the Environmental Planning and Assessing Act 1979 as follows:

(1) By 30 April 2009, the defendant is to cause to be planted on the land comprising Lot 4, DP 238982 (known as 74 Hansens Road, Minto Heights) six trees of the species Eucalyptus creba in the locations identified in the tree location sketch annexed hereto. Each tree to be of a pot size of 100 litres at planting.

(2) The defendant must maintain the said trees for a period of three years to enable them to become reasonably established.

(3) If any of the said trees dies during that three year establishment period, the defendant must plant and maintain a replacement tree and the requirements imposed pursuant to paragraphs (1) and (2) above will apply in respect of any such replacement tree.

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