9 In or about April 2005 the defendant removed 30 living trees which were 3 metres or more in height with a girth of 300mm or more at a height of 1 metre above natural ground level, without development consent. The defendant submitted that only about 8 living trees were removed. I am satisfied that his estimate is based on an erroneous, although genuine, perception that a "tree" is relevantly of larger minimum dimensions than those prescribed under the LEP.
10 The defendant is a married man with one child aged four (4) years and his wife is pregnant with a second child. He earns approximately $300 per week and his wife currently earns approximately $312 per week.
11 In or about November 2004, the defendant and his wife exchanged contracts to unconditionally purchase the said property. The purchase price was $615,000 of which they borrowed $610,000. The property now has a market value of approximately $550,000. The defendant and his wife have mortgage payments of approximately $4,000 per month and do not receive any rents to offset the mortgage.
12 In November 2001, the defendant's grandfather passed away after a prolonged palliative illness caused by asbestos. The defendant was traumatised by his grandfathers' constant pain and suffering over a fifteen year period.
13 In November 2004, shortly after contracts were exchanged, the defendant discovered that the property was severely contaminated in the location of a swamp which contained raw human sewage, asbestos, motor vehicle parts and building waste that posed a risk of harm to the environment and adjoining neighbours.
14 In November 2004, the defendant drew to the attention of the prosecutor and the Environment Protection Agency the seriousness of the contamination of the swamp. Both the prosecutor and the Environment Protection Authority informed the defendant that the cleaning-up of the contaminants was his responsibility.
15 In April 2005, the defendant engaged a contractor (his brother Adrian) to clean-up the swamp by way of mechanical excavation. The excavation of the swamp involved the removal of several tonnes of contaminants such as asbestos, raw human sewage, building waste and motor vehicle parts. The cost to remove and safely dispose of the asbestos was approximately $10,000.
16 During the course of the excavation, the defendant observed that the subject trees were unstable, damaged and dangerous to persons and property and that their roots were intertwined with the contaminants. Shortly after he removed the trees, the prosecutor council issued him with a clean-up order which required him to remove the contaminants.
17 The defendant is contrite and remorseful. He has co-operated with the prosecutor at all times. He now realises that he ought to have asked the prosecutor to give more explicit directions about the cleaning-up of the swamp and dealing with the trees in the proximity of the swamp. He now realises that he should have obtained development consent from the prosecutor before he caused the removal of the trees.
18 The defendant has offered from the outset to remediate the property by re-planting trees to meet the prosecutor's requirements. He has also offered to pay the prosecutor's legal costs which were approximately $6,500 in June 2006.
19 The defendant has no convictions. He has not previously come to the attention of police or any other public law enforcement authority.
20 Three character references were tendered in the defendant's case. The first was from his grandmother, Immacolata Calla. She recounts that in 2001 the defendant's grandfather died from asbestosis after a painful, long and tragic illness, and that subsequently the defendant reacted emotionally to finding asbestos on his property.
21 The second character reference is from Stella Sgamobellore who has been acquainted with the defendant for 17 years. She knows him to be a hard worker, a consistent provider, and a person with a strong moral and ethical character for whom the welfare of his family is his highest priority. She shared in his family's excitement when the property was purchased and a milestone reached in his dream to raise his family on a rural property. She shared their despair when the environmental issues of the property came to light.
22 The third character reference is from K M Thirul, P Thirul and S Thirul who have known the defendant and his family for a number of years. They know him as hard working, well respected in the community and honest. They express concern about the asbestos effects of the property on everyone who lived in the street.