City of Canada Bay Council v Frank Edward Bird; City of Canada Bay Council v Michael John Christopher

PROSECUTOR Mr T Howard (Barrister)

DEFENDANT Mr J Webster SC

SOLICITORS Richard Booker LEGAL REPRESENTATIVES: 50137 of 2001

PROSECUTOR Mr T Howard (Barrister)

DEFENDANT Mr I Hemmings (Barrister)

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 50136 of 2001 50137 of 2001

24 June 2003 50136 of 2001 City of Canada Bay Council Prosecutor v Frank Edward Bird Defendant

50137 of 2001 City of Canada Bay Council Prosecutor v Michael John Christopher Defendant

1 On 7 February 2003 the Court delivered judgment in respect of charges against each of the defendants that they breached the provisions of the prosecutor's tree preservation order ("the TPO") and consequently s 125 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"): see Canada Bay City Council v Bird; Canada Bay City Council v Christopher (2003) 124 LGERA 303. The Court found that the charges were proved against each of the defendants and reserved argument concerning penalty. At par 100 and par 101 of Canada Bay City Council v Bird; Canada Bay City Council v Christopher the defendants were convicted of the offence as charged. The Court vacates such orders insofar as they refer to a conviction. The Court has heard submissions this morning by counsel for each of the defendants and for the prosecutor concerning penalty.

Section 10 of the Crimes (Sentencing Procedure) Act 1999 2 Each of the defendants have requested that the benefit of s 10 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act") be extended to them. Accordingly the Court is required to assess the matters set out in s 10 of the Sentencing Procedure Act and to also consider the gravity of the offence. 3 Section 10(1) of the Sentencing Procedure Act empowers the Court to make a finding of guilt without proceeding to a conviction. Section 10(3) of the Sentencing Procedure Act requires the Court to consider various matters when determining an application made pursuant to s 10(1) of such Act. Each of the matters referred to in s 10(3) are "disjunctive and nonexhaustive" (see R v Robert John Paris [2001] NSWCCA 83 per Simpson J at par 42). 4 The facts surrounding the offences and the environmental damage resulting from the offence has already been discussed in the published judgment. Against that factual context the Court makes the following findings.

Character, antecedents and age 5 One matter for consideration is relevantly the person's character, antecedents and age: see s 10(3)(a) of the Sentencing Procedure Act.

Mr Frank Edward Bird 6 Mr Frank Edward Bird is 64 years of age and is a businessman and has conducted his own business for more than 30 years. Mr Bird has no prior convictions, is a Justice of the Peace, and as evidenced by the testimonials provided to the Court is highly regarded as a successful businessman and citizen. Mr Bird has assisted numerous charities through his generosity including the Red Cross, Silverwater Work Release Correctional Centre, the Salvation Army and the Merrymakers. He was actively involved through his sport of boxing with the Police and Community Clubs Parramatta thirty-five years ago. He was awarded a Life Governor Award in 1997 which is the highest civil award that can be given for service to such club. Although his active participation has ceased with such club he has continued to support it financially and by donating supplies of meat from his business. 7 A former mayor of Auburn Council, Mr Terry Keegan, testified that the defendant was of good character and that the defendant had made donations to Auburn District Hospital and to the Auxiliary of such Hospital which is engaged in fundraising. 8 A former cabinet minister of the Federal Parliament, Mr John Joseph Brown, also testified that he had known the defendant as a result of his business activities and donations made by the defendant to a range of charities including The Little Sisters of the Poor and the Salvation Army. 9 From the above the Court is satisfied that Mr Bird is "of otherwise good character": see Ryan v The Queen (2001) 206 CLR 267 per McHugh J at p 275.

Mr Michael John Christopher 10 Mr Michael John Christopher is 31 years of age. He attended Ryde Technical College and obtained Arboriculture Technique Certificate. He was employed by Langman Tree Services from 1990 until 1994 undertaking daily work involving the removal of trees, machinery maintenance and stump grinding. Mr Christopher commenced his own business known as MJC Tree Services in 1994. He employs one full time employee and one casual employee and has attracted as clients several golf clubs and hospitals. Most of his work is derived from the Canada Bay local government area. 11 Mr Christopher has been engaged in his occupation for 12 years and has had no prior convictions. Testimonials provided establish that Mr Christopher is a person of integrity and has been industrious and proficient in his profession. He has also engaged in work assisting a local community group, namely the Blaxland Valley Association and provided his expertise for the benefit of the community. He has recently married and is expecting his first child. The Court accepts that Mr Christopher is a person of good character. Whether the nature of the offence is trivial 12 The Court is required to consider whether the nature of the offence is trivial: see s 10(3)(b) of the Sentencing Procedure Act. The removal of the two trees is not trivial. However the Court is not required to be satisfied of each of the matters referred to in s 10(3) of the Sentencing Procedure Act before it can dismiss a charge. Extenuating circumstances 13 The Court is required to consider the extenuating circumstances in which the offence was committed: see s 10(3)(c) of the Sentencing Procedure Act. 14 The Court determined that the defendants had not discharged the burden of proof that the trees were dead as defined in the TPO: see Canada Bay City Council v Bird; Canada Bay City Council v Christopher at par 94. The Court is prepared to accept that the defendants may have considered that the trees were dying as opposed to dead and that it was this belief that led them to engage in conduct which created the offences. 15 Counsel for Mr Christopher has submitted that his client made a mistake in failing to request provision of the written consent of the owner of 26 Walton Crescent Abbottsford before acting on his instructions from Mr Bird. The Court accepts that Mr Christopher erred and that this offence will ensure that he is more careful when accepting verbal instruction from potential clients.

Deterrence 16 The Court is mindful when imposing penalty that there "must be an element of general deterrence in dealing with significant breaches of the planning laws": see Cooper v Coffs Harbour Council (1997) 97 LGERA 125 per Howie AJ at p 143; Ryde City Council v Calleija (1998) 99 LGERA 360 per Lloyd J at p 366. The Court is satisfied that each of the defendants is not likely to re-offend. 17 Two trees were cut down. The defendants have offered to replace the trees of a type which will satisfy the wishes of the owners of the land where the trees were growing, namely the registered proprietors of 26 Walton Crescent Abbotsford. This is a matter which the Court can take into consideration when assessing penalty: see s 126(3) of the EP&A Act. Accordingly the damage has been caused to the environment can be rectified. 18 Each of the defendants has incurred the costs of the proceedings and have offered to pay the prosecutor's costs.

19 The Court is satisfied that it is unnecessary to impose a financial penalty by way of fine upon either of the defendants. The Court is also entitled to have regard to the character of each of the defendants and of their standing in the community. It would be uncharitable of the Court not to take into consideration the good works which each defendant has performed for the community. 20 For the above reasons the Court considers that the benefit of s 10 of the Sentencing Procedure Act should be extended to each of the defendants. The Court acknowledges the observations of Talbot J in Penrith City Council v Re-Gen Industries Pty Ltd (2000) 107 LGERA 331 at p 336 where His Honour determined that:- Although the culpability of this defendant is minor, it is not sufficiently low to justify the Court not proceeding to conviction. 21 In view of the poor condition of the trees at the date of the offence the Court considers that the culpability in this case is minimal and that the Court can grant to each of the defendants the benefit of s 10 of the Sentencing Procedure Act. 22 In each case the Court makes the following orders.

Orders 23 In matter 50136 of 2001 the Court orders that:- 1. Frank Edward Bird is found guilty of the offence as charged. Without proceeding to a conviction and subject to orders 2 and 3 the charge is dismissed pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999.

2. If the owners of No. 26 Walter Crescent Abbotsford so permit Frank Edward Bird in consultation with Michael John Christopher is to supply and arrange for the planting of two trees in replacement of the trees destroyed;

3. Frank Edward Bird is to pay the prosecutor's costs as may be agreed or otherwise assessed in accordance with the regulation made pursuant to the Land and Environment Court Act 1979;

24 In matter 50137 of 2001 the Court orders that:- 1. Michael John Christopher is found guilty of the offence as charged. Without proceeding to a conviction and subject to orders 2 and 3 the charge is dismissed pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999.

2. If the owners of No. 26 Walter Crescent Abbotsford so permit Michael John Christopher in consultation with Frank Edward Bird is to supply and arrange for the planting of two trees in replacement of the trees destroyed;

3. Michael John Christopher is to pay the prosecutor's costs as may be agreed or otherwise assessed in accordance with the regulation made pursuant to the Land and Environment Court Act 1979;

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.