Eurobodalla Shire Council v Christenssen

Eurobodalla Shire Council v Christenssen - [2008] NSWLEC 134 - NSWLEC 2008 case summary — Zoe

[18]

7 The prosecutor submitted that the fine of $750 bore no reasonable proportionality to the objective seriousness of the offence and thus was manifestly inadequate in circumstances where: - (i) the development consent authorised the clearing of 15,660m2 of land whereas the defendant cleared 34,676m2, (ii) the consent also required clearing within 40m of a drainage gully to be carried out manually when all of the clearing had been carried out by machine, (iii) it was not clear how many trees had been cleared contrary to the development consent, (iv) the maximum penalty for the contravention of s 76A of the EPA Act was $1.1 million (subject to the Local Court's jurisdictional limit of $110,000), (v) the clearing in excess of the consent involved the destruction of mature vegetation over an area of 19,016m2, (vi) because the areas within 40m of a drainage gully had been cleared by machine there was increased erosion risk, (vii) the clearing was carried out to improve the land for grazing and thus for financial gain, (viii) although the defendant is visually impaired he obtained the development consent and went to the property every second or third day to check on the clearing, (ix) there is a need for general deterrence with respect to environmental offences, as emphasised in many decisions, (x) the mitigating factors (the defendant being visually impaired and on a pension, having no prior offences and the entry of the guilty plea) were not such as to outweigh the objective seriousness of the offence, (xi) the sentence was inconsistent with other sentences dealing with the same subject matter (with the prosecutor identifying numerous sentences for offences of removal of trees and clearing with penalties ranging from $5,000 to $68,000). The prosecutor also referred to the decision in Wheelhouse where this Court upheld a prosecutor's appeal against sentence for an offence involving removal of trees on a neighbour's land. The sentence was increased on appeal from $600 to $10,000.

[19]

8 The defendant submitted that the prosecutor's submissions overlooked certain important factors that supported the sentence as imposed by the Local Court: - (i) the facts were not analogous to the many cases relied on by the prosecutor most of which involved wilful removal of trees whereas, in this case, there was no finding (or even submission by the prosecutor) that any tree had been removed in breach of the consent, nor that erosion had resulted (and, to the contrary, the photographs before the Magistrate showed the silt fences installed as part of the defendant's voluntary remediation), (ii) in any event, there is always difficulty in comparing one penalty with another in these cases due to the wide divergence of circumstances (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 356 at 365, (iii) the Magistrate took into account all relevant matters, including the maximum sentence, the need for general deterrence, the objective gravity of the offence, and the mitigating circumstances, (iv) importantly, in this case, development consent had been obtained authorising the clearing of an area of 15,660m2 on a large rural property (of 41.35 hectares), with the offence consisting of clearing in excess of that authorised, (v) some of the cases relied on by the prosecutor involved flagrant breaches of environmental laws by wilful destruction of trees on neighbouring or public land, (vi) the Magistrate correctly found that the breach of the consent was not wilful or premeditated, (vii) the prosecutor made no submission below about the offence being committed for financial gain, (viii) the mitigating circumstances included the defendant's immediate and voluntary remediation of the area cleared in excess of that authorised by the consent, a fact about which the prosecutor's submissions remained silent, (ix) the defendant's visual impairment was serious and given appropriate weight by the Magistrate, who nevertheless accepted that it was inappropriate for the defendant to supervise the clearing work, and (x) the Magistrate also gave appropriate weight to the defendant being a pensioner, who has no prior convictions and who entered a guilty plea

[21]

10 This observation about the range is particularly apt for offences involving a breach of the EPA Act where the maximum penalty is $1.1 million. The potential offences involved (principally carrying out development that required consent without consent, carrying out development that is prohibited, and carrying out development otherwise than in accordance with a development consent) cover a vast range of circumstances. This is reflected in the many different cases that come before this Court for sentence under s 125(1) of the EPA Act. Cases of wilful removal of large trees (particularly on neighbouring or public land) without consent are not analogous to unintentionally (or at worst negligently) clearing a rural property in excess of that authorised by a consent. For example, in Wheelhouse, the offence was cutting down three mature trees on a neighbour's land without consent and in breach of a tree preservation order. The defendant's explanation for the offence was unsatisfactory. Apparently, the neighbours had some emotional attachment to the trees, which were large. The offence was deliberate. Those facts are very different from the present case. Hornsby Shire Council v Devaney [2007] NSWLEC 199 involved the clearing of trees and vegetation on rural land without consent (including, probably, a vulnerable species). One defendant was an experienced earthworks contractor who told the other defendant, a young and inexperienced person of limited means, that no consent was required. The other defendant instructed the contractor to proceed and about 0.42 hectares of land was cleared of trees and vegetation (being devoid of both after the clearing). Fifty-five trees were removed in the process, 49 of which were alive before being removed. The Court fined the contractor $20,000 but discharged the other defendant on the basis of a bond. Camden Council v Runko (2006) 147 LGERA 214 involved another exceptional case where the Court found the defendant removed 30 trees from a rural property that were damaged and dangerous. The Court dismissed the charge and ordered the defendant to undertake rehabilitation of the property. 11 The penalty imposed by the Magistrate in this case was low; probably, even at the lowest possible end of the range. The area cleared substantially exceeded that authorised. But the fact that an appellate court considers a penalty to be low is insufficient. The penalty was not so low as to be definitely or obviously outside the range a sentencing court could have imposed in all of the circumstances. This is particularly so having regard to: - (i) the fact that the defendant obtained a development consent that authorised clearing of a rural property, with the offence involving clearing a larger area (just over double) that which was authorised, (ii) the lack of evidence of unlawful removal of trees as opposed to clearing in the nature of under-scrubbing, (iii) the finding that the clearing did not involve removing all trees or vegetation, supported by the photographic evidence, (iv) the finding that the defendant's default was if anything negligent rather than deliberate, supported by the defendant's evidence about how he had arranged for the clearing to be carried out, and (v) the lack of evidence about the nature and significance of the vegetation and of environmental harm. There were also substantial mitigating circumstances in the defendant's favour, including: - (i) the defendant's visual impairment made it unlikely that he was capable of adequately supervising the works, (ii) the evidence of voluntary rehabilitation by the defendant, (iii) the defendant's lack of prior convictions, (iv) the defendant's entry of a plea of guilty, (v) the defendant's limited means to pay, with his only income being a disability support pension, and (vi) the defendant's liability with respect to costs in the sum of $1000. Moreover, the Magistrate was clearly aware of the importance of general deterrence of environmental offences. In this case, the defendant was convicted, a fine imposed (albeit a low fine), and the defendant ordered to pay $1000 in costs. The small pecuniary penalty, in all of the circumstances, does not indicate an error that justifies and authorises appellate intervention.

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