Council of the City of Shoalhaven v Wilson

Judgment

1. The Defendant has pleaded guilty to the charge that he lopped or injured two banksia trees in a waterfront Crown reserve adjoining his land in Vincentia on the south coast on 22 March 2014 without consent as required by the Shoalhaven Tree Preservation Order (TPO) and breached s 76A of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) contrary to s 125(1) of the EPA Act. The offence is a strict liability offence. By pleading guilty the Defendant admits the essential elements of the offence.
2. The parties agreed a statement of agreed facts (SOAF), which became exhibit A, as follows: 1 The Prosecutor is the consent authority in respect of the carrying out of development regulated by the Shoalhaven Local Environmental Plan 1985 ("SLEP 1985"). 2 At the time of the offence the subject of these proceedings SLEP 1985 was in operation. The Tree Preservation Order 3 At the relevant time, clause 5 of the SLEP 1985 adopted the Environmental Planning and Assessment Model Provisions 1980 ("Model Provisions") for the purposes of the SLEP 1985. 4 Clause 8 of the Model Provisions permitted a Council to make a tree preservation order prohibiting the ring-barking, cutting down, topping, lopping, removing, injuring, poisoning or wilful destruction of any tree within the City of Shoalhaven except with the consent of Council. 5 On 23 April 2013 the Council of the City of Shoalhaven resolved to adopt a tree preservation order pursuant to the Model Provisions and the SLEP ("the Tree Preservation Order"). The Tree Preservation Order is attached and marked "A". 6 The Tree Preservation Order relevantly prohibits the ring-barking, cutting down, topping, lopping, removing, injuring or wilful destruction of certain trees which are situated within the Shoalhaven area without Council consent. 7 The Tree Preservation Order defines a tree as a perennial plant with at least one self-supporting woody or fibrous stem, being: a. More than 5 metres tall; or b. More than 5 metres wide across the foliage crown; or c. Having a trunk circumference of more than 500 millimetres measured 1 metre above ground level. 8 Notice of the making of the Tree Preservation Order was published in the NSW Government Gazette on 18 October 2013. The Land 9 The Defendant is the registered proprietor of 60 Elizabeth Drive, Vincentia NSW, also known as Lot 92 DP25000 ("the Defendant's Land"). 10 The Defendant's Land is located near the foreshore of Collingwood Beach, Vincentia. 11 Between the Defendant's Land and Collingwood Beach is a strip of land, managed by the Council, and paved for use as a walking track. 12 East of and adjacent to the walking track is Crown Reserve 64234 ("the Crown Reserve"). The Crown Reserve is separated from the walking track by a wire fence supported by wooden posts. 13 East of and adjacent to the Crown Reserve is Collingwood Beach. 14 That part of the Crown Reserve aligned with the Defendant's Land was at all material times populated with vegetation and trees. Attached and marked "B" is an aerial photograph showing the foreshore of Collingwood Beach, the Defendant's Land (marked with a red 60) and vegetation on the adjoining Crown Reserve (marked in red hatching). The Offence 15 On Saturday 22 March 2014, at approximately 6:00pm, the defendant entered onto the Crown Reserve by passing through the wire fence and, using hand held shears, proceeded to cut limbs off parts of trees in the area adjacent to the paved path in front of the Defendant's Land. 16 After a short period of time, the Defendant returned to the Defendant's Land and obtained an electric chainsaw. 17 The Defendant then re-entered onto the Crown Reserve and continued cutting. 18 The Defendant then returned to the Defendant's Land and obtained an extension cord for the electric chainsaw and continued cutting with the chainsaw, stepping over the steel wire fence separating the walkway from the Crown Reserve. 19 The Defendant moved over an embankment and further into the Crown Reserve in front of the Defendant's Land and towards Collingwood Beach. He was observed to drag branches away from the Crown Reserve and towards the Defendant's Land. 20 Attached and marked "C" is a photograph of the Defendant on 22 March 2014. 21 To be exhibited with these facts and marked Prosecution Exhibit 1 is a video of the Defendant made on 22 March 2014. 22 The Defendant cut or injured two (2) Coastal banksia (Banksia integrifolia) that fell within the definition of a tree in the Tree Preservation Order. 23 The Defendant did not have consent of the Council to cut or injure the two (2) Coastal banksia (Banksia integrifolia) that fell within the definition of a tree in the Tree Preservation Order. 24 The two Coastal banksia trees that were pruned were both aligned with the Defendant's land. Representations by the Defendant 25 The Defendant initially took action that impeded Council's investigation of the offence and on a number of occasions indicated that a third party had carried out the offence. The Proceedings 26 On 12 August 2014 the Prosecutor obtained the order of the Court requiring the Defendant to answer the charge in the summons. 27 On Friday 26 September 2014 the defendant entered a plea of guilty to the charge in the summons.
3. The annexures referred to in the SOAF were before the Court. The Prosecutor provided a bundle of documents containing relevant case law and legislation, which included extracts from the Shoalhaven Local Environmental Plan 1985 (LEP).
4. The Prosecutor tendered and played in Court a very short video made 22 March 2014 (exhibit B) showing the Defendant using a chainsaw to lop tree branches.
5. The affidavit of the Defendant affirmed on 28 May 2015 was read which details his difficulties with alcohol addiction since an accident in 2010 and states that he has been diagnosed with post-traumatic stress disorder, anxiety and depression. The Defendant states that he was consuming alcohol heavily on a daily basis and his memory of the day of the offence is adversely affected by his state of intoxication at the time. He regrets his actions in lopping the banksia trees. The Defendant has been making efforts to take care of his mental health, has been abstinent from alcohol use since January 2015 and is a member of a beach preservation group. In 2014 the Defendant separated from his long-term partner with whom he has a child. He has a large mortgage on his property at Vincentia and owns a business franchise. He offered to pay the cost of new vegetation for the area during his interview with a Council officer on 6 May 2014.
6. The Defendant tendered a psychiatric report by Dr Furst dated 21 April 2015 (exhibit 1). In undertaking his report Dr Furst was provided with, amongst other things, the summons commencing these proceedings dated 8 August 2014. In his report, Dr Furst expresses his opinion that the Defendant's high level of anxiety, his depression and intoxication were all factors that impacted on his judgment and contributed to his offending on the day of the offence. Dr Furst stated that there was impairment in the Defendant's level of psychosocial function and that he regretted his actions.

The purposes of sentencing

1. Section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) provides: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are 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, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.
2. The sentence must reflect the objective circumstances of the offence and subjective circumstances of the Defendant. Relevant factors include the maximum penalty, the objective harmfulness of the offender's actions, the reasons for the commission of the offence and the state of mind of the offender, as I stated in Manly Council v Lee [2011] NSWLEC 166 at [6] citing Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 at 490. See also Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472, Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [163] and Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [110]. The statutory scheme in which the offence provision occurs is an important consideration in light of the objectives of the EPA Act, which include the orderly and economic use and development of land (s 5(a)(ii)) and the protection of the environment (s 5(a)(iv)): Lee at [7].

Maximum penalty

1. The offence of carrying out development without consent is serious as underscored by the maximum sentence the Court may impose under s 126(1) of the EPA Act, being $1,100,000. This is the Parliament's expression of the seriousness of the offence: see Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698.

Integrity of statutory scheme for development control important

1. The Prosecutor submitted that the actions of the Defendant were harmful, and hence serious, because precipitous removal of vegetation without prior environmental assessment injures the system of development control imposed by the EPA Act: see Gittany Constructions at [104]. Such conduct is antipathetic to both the planning system ordained by the EPA Act and the preservation of local amenity manifest in the TPO: Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 at [56] and [66]. The objects of cl 2(2)(o) and (p) of the LEP provide for the protection of natural environments and scenic and landscape qualities. I agree with these submissions. A consequence of the offence is that the Defendant did not apply for the necessary permission to lop trees required by the Prosecutor's TPO.

Environmental harm

1. The parties disagreed about the seriousness of the environmental harm resulting from the offence. The Prosecutor submitted that the importance of public lands and the controls on the care and management of public lands have been recognised repeatedly by the courts. In particular bushland in and around urban areas has been held to be of value to the community as part of the natural heritage and for its aesthetic value. The recreational value and bushland in and around waterways has been found to have added value: see Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349 at [59]-[60]. See also Gosford City Council v Tauszik [2005] NSWLEC 266 at [4] and [20]-[21]. That submission is accepted.
2. At issue is whether the fact that the offence occurred on public land is aggravating because that fact alone gives rise to substantial environmental harm within the meaning of s 21A(2)(g) of the CSP Act. According to the Prosecutor the authorities, meaning Cameron and Tauszik, find that the environmental harm of damage to trees on public land is substantial. Environmental harm which is substantial is an aggravating factor under s 21A.
3. While accepting that the harm caused was exacerbated by its occurrence on Crown reserve the Defendant submitted the offence was not aggravating within the meaning of s 21A(2)(g) of the CSP Act as the environmental harm was not substantial. I agree with the Defendant. Firstly Cameron found that cutting down or pruning trees on public land exacerbates the seriousness of the offence but that fact alone is not identified as aggravating within the meaning of s 21A(2)(g) of the CSP Act: see Cameron at [54]-[60]. Tauszik concerned the removal of trees on private land. Secondly, a finding of substantial harm must be informed by the circumstances of a particular case. The only fact in the SOAF concerning the two trees lopped were their location on the Crown reserve adjoining the Defendant's land. An aerial photo showing the relationship of the Defendant's land and the Crown reserve is attached to the SOAF. The Prosecutor has not brought forward any evidence about the significance of the vegetation other than it was located on Crown reserve. I am not seeking to downplay the seriousness of the offence on Crown reserve but the Prosecutor has to do more than rely on the bare facts in the SOAF to establish substantial environmental harm. I find that there was environmental harm which is exacerbated by the offence occurring on public land but the harm has not been proven to be substantial.

Defendant's state of mind

1. A strict liability offence committed intentionally will be objectively more serious than one which is committed unintentionally: see Gittany at [123] and Environment Protection Authority v Hochtief AG [2006] NSWLEC 200 at [99].
2. The Prosecutor submitted and I accept that the Defendant knowingly and deliberately caused damage to trees that were alive. The Defendant's actions involved three separate incidents using several implements. Firstly, the Defendant entered onto the Crown reserve with handheld shears, then returned to his land to obtain an electric chainsaw and re-enter the Crown reserve and finally the Defendant returned to his land to obtain an extension cord for the electric chainsaw to move further within the Crown reserve. This suggests knowing, deliberate, and intentional action rather than anything negligent or reckless on the part of the Defendant.
3. The Defendant accepts that his actions were deliberate. His counsel relied on the report of Dr Furst in submitting that his actions occurred at a time when his state of mind was impacted by his mental health issues, including anxiety, alcoholism and intoxication at the time of the offence. The moral culpability of the Defendant was submitted to be reduced in these circumstances.
4. Section 21A(5AA) of the CSP Act states that when sentencing, the self-induced intoxication of the offender at the time the offence was committed is not to be taken into account as a mitigating factor. The effect of this subsection must be to prevent a finding of reduced moral culpability on the basis of intoxication. Numerous authorities further confirm that, as identified in the Judicial Commission of NSW, Sentencing Bench Book (as at April 2015) at [10-480].
5. As to the additional mental health issues identified by Dr Furst the primary issue is the extent to which these should be given weight in reducing the need to denounce the offence and whether the Defendant is an appropriate vehicle for general deterrence, as identified in obiter in Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194; (2010) 205 A Crim R 1 by McClellan CJ at CL at [177]. At [178] his Honour states that psychiatric illness need not be severe to become relevant to the sentencing process. I will refer to this below in relation to general deterrence.

Reasons for committing the offence

1. Unusually there is no evidence before the Court of the reason the offence was committed. The Defendant does not provide any in his affidavit and there is none referred to in Dr Furst's report. The Prosecutor has not sought to tender any evidence beyond the SOAF, which says nothing on this issue. The Prosecutor submitted the reason for the offence that should be inferred is that the Defendant obtained a benefit with the improvement of his land. The SOAF states that the two trees lopped were on the waterfront Crown reserve adjoining the Defendant's land. There is an aerial view of the general area attached to the SOAF. No more detail of the surrounding environment is provided in the SOAF. There is no evidence to support such a finding based on inference beyond reasonable doubt, the onus the Prosecutor bears if it wishes the Court to make an adverse finding against the Defendant per R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27] per Gleeson CJ, Gaudron, Hayne and Callinan JJ.

Finding on objective seriousness of the offence

1. The objective seriousness of this offence is not minor or trivial. The objective seriousness of lopping trees on land in breach of a TPO without the necessary consent is exacerbated by the activity taking place on public land. Any reduction in vegetation on public land particularly where this is near the waterfront gives rise to environmental harm as a general proposition. There is no evidence of lasting damage to the trees and the extent of environmental harm in the circumstances of this case is otherwise low in the absence of any relevant evidence from the Prosecutor. The offence was deliberate but is inexplicable on the evidence. I infer from Dr Furst's report it may arise from the impaired judgment of the Defendant on the day of the offence. The matter is at the lower but not lowest end of the spectrum of objective seriousness.

Subjective considerations

1. These proceedings were commenced on 12 August 2014 and the Defendant pleaded guilty on 26 September 2014, the first return date of the summons. The Defendant's plea of guilty was entered at the earliest opportunity, as the Prosecutor accepted. In accordance with s 21A(3)(k) and s 22 of the CSP Act, the Defendant is entitled to the usual significant discount upon sentence for his plea of guilty at the earliest practicable opportunity. The guideline judgment of the Supreme Court of New South Wales in R v Thompson; R v Houlton [2000] NSWCCA 309; (2000) 115 A Crim R 104 sets out the appropriate discount being in the order of 10% to 25% and will be applied to the full extent identified.
2. The Defendant has no prior convictions for environmental offences.
3. I accept that the Defendant has shown remorse given his affidavit evidence, his statement to Dr Furst, his plea of guilty and his offer made to the Prosecutor to pay for the cost of new vegetation for the area during his interview with the Council on 6 May 2014.
4. I find that the Defendant is unlikely to reoffend and has good prospects of rehabilitation, matters identified as mitigating in s 21A(3)(g) and (h) of the CSP Act.

General deterrence

1. General deterrence for offences of this kind is important given the prevalence of tree lopping offences in urban areas including on public land. No need for specific deterrence is identified in this case given my finding below that the Defendant is unlikely to reoffend.
2. As identified above in par 18, a mental health problem may make an offender an inappropriate vehicle for general deterrence and moderate that consideration, R v Hemsley [2004] NSWCCA 228 at [33]-[36], De La Rosa at [177]. R v Hemsley at [5] confirms that general deterrence remains relevant and is a matter of the Court's discretion. Statements to similar effect appear in De La Rosa at [177]-[178] in the same passages referred to at par 18. Dr Furst's evidence is that the Defendant's judgment was impaired on the day of the offence by his mental health issues. Ultimately the weight to be given to the psychiatric evidence is a matter for me. Only limited weight can be given to Dr Furst's opinion in the face of the deliberate behaviour of the Defendant on the day of the offence in lopping the two trees including with a chainsaw on three visits from his land. It remains important to factor in general deterrence to some extent in these circumstances.

Evenhandedness

1. The sentencing principle of evenhandedness requires that like cases receive like penalties. Consideration of similar cases can be of assistance in informing the range of penalty which is appropriate, subject always to the overarching need to consider the individual circumstances of a particular case. A sentence in one case does not demonstrate the limits of sentencing discretion: Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 at [54].
2. A number of sentencing decisions of the Court concern tree removal or lopping on public and private land. A number of cases were identified in Cameron (2006) at [105] and a range of $10,000 to $25,000 identified at [106]. Focussing on offences by individuals on public land, in Cameron the actions of the appellant lopping a gum tree located on public land without consent was found to have increased the objective harmfulness of the offence, [60]. The fine imposed in the Local Court of $10,000 for lopping six branches from one tree was held to be within the range of appropriate gravity for the offence. In Manly Council v Taheri [2008] NSWLEC 314 multiple charges concerned the removal of trees on private and public land with multiple fines imposed between $10,000 and $35,000 and a revegetation order was made under s 126 of the EPA Act. In Lee (2011) a fine of $7,500 reduced from $10,000 was imposed on a neighbour for pruning a tree in a school without consent. In Warringah Council v Bonanno [2012] NSWLEC 265 a chainsaw was used to clear 123 sq m of public land and a fine of $37,500 was imposed.
3. In addition the Defendant's counsel provided the Judicial Information Research System (JIRS) summary of Local Court cases in which fines had been imposed for the contravention of a tree preservation order under s 125(1) of the EPA Act. From January 2011 to December 2014 the statistics show a total of eleven fines were imposed, with eight fines ranging from $350 to $5,000 and three greater than $5,000. I am not aware of the details of any of these cases.
4. There is some similarity with the facts in Cameron and Lee and this matter.

Ability to pay a fine

1. The Defendant's counsel submitted that the Defendant would struggle to pay a large fine due to recent personal circumstances resulting in him having a large mortgage. The Defendant owns a business franchise. I have no other financial information available to assess the Defendant's capacity to pay a fine making an assessment for the purposes of s 6 of the Fines Act 1996 (NSW) difficult. An application for time to pay a fine can be made to the Registrar of the Court under s 10 of the Fines Act.

Prosecution could have been brought in Local Court

1. A relevant sentencing consideration is that this charge could have been brought in the Local Court of NSW with a jurisdictional maximum of $110,000, see Harris v Harrison [2014] NSWCCA 84; (2014) 86 NSWLR 422 at [92]-[98] citing R v Crombie [1999] NSWCCA 297, R v Doan [2000] NSWCCA 317; (2000) 50 NSWLR 115. The Defendant also referred to Environment Protection Authority v Barnes [2006] NSWCCA 246 at [59] in this regard. I will take that into account in sentencing.

Costs

1. The Defendant understands that a costs order requiring that he pay the Prosecutor's costs will be made as agreed or assessed. He asks that his capacity to pay a fine be considered as provided for in Environment Protection Authority v Barnes. I do not have sufficient information about the Defendant's financial position to know if such consideration is warranted.

Appropriate penalty

1. 47 The instinctive synthesis of objective and subjective factors is relevant to sentencing per Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [26] citing Makarian v The Queen [2005] HCA 25; (2005) 228 CLR 357. Taking these into account, a penalty of $12,000 is appropriate, which should be reduced by 30% to $8,400 in light of the mitigating factors identified above.

Order

1. The Court makes the following orders: 1. The Defendant is convicted of the offence as charged. 2. The Defendant is fined $8,400 to be paid to the Registrar of the Court within 28 days of today's date. 3. The Defendant must pay the Prosecutor's costs as agreed or assessed. 4. The exhibits are to be returned.

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