Eurobodalla Shire Council v Christenssen

Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 356 Camden Council v Runko (2006) 147 LGERA 214 Dinsdale v The Queen (2000) 202 CLR 321 Director of Public Prosecutions (NSW) v Cornwall (2007) NSWCCA 359 Eurobodalla Shire Council v Wheelhouse [2006] NSWLEC 98 CASES CITED: Everett v The Queen (1994) 181 CLR 295 Hornsby Shire Council v Devaney [2007] NSWLEC 199 House v The King (1936) 55 CLR 499 R v Baker [2000] NSWCCA 85 R v Tait (1979) 24 ALR 473 R v Wall [2002] NSWCCA 42 Wong v The Queen; Leung v The Queen (2001) 207 CLR 584

APPELLANT Mr A Warren, solicitor SOLICITORS Andrew Warren Associates LEGAL REPRESENTATIVES: RESPONDENT Mr Nicholas Bilinsky SOLICITORS Kennedy & Cooke

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT Jagot J: 1 This is an appeal by the prosecutor, Eurobodalla Shire Council, against the sentence imposed by a Magistrate in the Local Court at Moruya, with respect to the defendant's offence of carrying out development (namely, clearing) other than in accordance with a development consent in contravention of s 76A of the Environmental Planning and Assessment Act 1979 (the EPA Act).

2 The appeal is brought under s 42(2A) of the Crimes (Appeal and Review) Act 2001. That section permits a prosecutor, other than the Director of Public Prosecutions or the Environment Protection Authority, to appeal to the Court against a sentence imposed by a Local Court in any summary proceedings in relation to an environmental offence, but only on a ground that involves a question of law alone. The prosecutor contends that the sentence imposed by the Magistrate (a fine of $750 and an order that the defendant pay the prosecutor's costs in the sum of $1000) was manifestly inadequate and, accordingly, that the sentence discretion miscarried.

3 It was common ground between the parties that a manifestly inadequate sentence involves a question of law. A sentence that is "manifestly wrong" involves a "failure properly to exercise the discretion which the law reposes in the court of first instance" (House v The King (1936) 55 CLR 499 at 505, Dinsdale v The Queen (2000) 202 CLR 321 at [22] and [58]). This class of error involves a conclusion about something plainly apparent, not dependent on any specific error of reasoning (Dinsdale at [6]).

4 The purpose of this class of appellate review is to ensure uniformity of sentencing, so far as possible. Consistency in sentencing is "a matter of great importance in maintaining confidence in the administration of justice in any jurisdiction. Sentences that are higher than usual create justifiable grievances in those who receive them. But inadequate sentences also give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the general public. Inadequate sentences are also likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes" (Everett v The Queen (1994) 181 CLR 295 at 306). Other important principles, however, are also engaged.

5 Given the nature of the sentencing discretion it is well established that Crown appeals against sentence require an error to be shown that "justifies and authorises appellate intervention" (Dinsdale at [58]). This is so irrespective of the fact that, for example, s 5D of the Criminal Appeal Act 1912 does not refer to appeals on a ground that involves a question of law alone (Wong v The Queen; Leung v The Queen (2001) 207 CLR 584 at [109]). Against this background, principles established with respect to Crown appeals against sentence are relevant. Those principles are conveniently summarised in R v Wall [2002] NSWCCA 42 (Wood CJ at CL at [70], Meagher and Bell JJA agreeing at [1] and [93]) as follows: (a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 499, applies to Crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion, as to the appropriate sentence, for that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error either latent or patent is shown; R v Tait (1979) 46 FLR 386 at 388; and Wong and Leung v The Queen (2001) 76 ALJR 79 at para 58 and 109.

(b) Appeals by the Crown should generally be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234, and unless there is a clear error of principle identified, it would be exceptional for the Court to interfere: R v Baker [2000] NSWCCA 85.

(c) A Crown appeal against sentence is concerned with establishing matters of principle "for the governance and guidance of courts having the duty of sentencing convicted persons": per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299; Dinsdale v The Queen (2000) 202 CLR 32, at paras 61 and 62, and Wong & Leung v The Queen at para 109.

(d) The Court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, R v Papazis (1991) 51 A Crim R 242 at 247, and Wong and Leung v The Queen at para 110.

(e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court: R v Holder and Johnston (1983) 3 NSWLR 245 at 256, and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen at para 62.

6 Error by way of manifestly inadequate sentence has been described as a "residuary category" because it does not involve any specific error of principle. In this residuary category the sentence needs to be such as to satisfy the Court that "there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons" (Wong and Leung at [58]). In other words, it must be shown that the "sentence is definitely outside the appropriate range" (Wong and Leung at [109] citing R v Tait (1979) 24 ALR 473 at 476 - 477). Crown appeals against sentence should be rare and on this ground particularly so (R v Baker [2000] NSWCCA 85 at [19]). This observation appears to be reflected in this Court where the parties identified one appeal by a prosecutor against sentence (Eurobodalla Shire Council v Wheelhouse [2006] NSWLEC 98). The appeal in that case succeeded. It has also been observed that recording sentences imposed in other cases is only useful if accompanied by an analysis of why those sentences were fixed as they were (Wong and Leung at [59]).

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.

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

9 I accept the defendant's submissions. The prosecutor's submissions pay insufficient regard to the fundamental requirement that for this ground of appeal to succeed the appellate court must be satisfied that the sentence was obviously or manifestly outside the available sentence range. It is insufficient that the appellate court might have preferred a different sentence to be imposed. All of the authorities with respect to this ground of appeal by a prosecutor emphasise that considerable appellate restraint is required. One reason for this is that the "lower end of the range" is a "concept of no great precision" (Director of Public Prosecutions (NSW) v Cornwall (2007) NSWCCA 359 at [9]).

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.

12 Accordingly, I am not satisfied that the sentence discretion miscarried by reason of a manifestly inadequate penalty. The appeal must be dismissed. [Discussion on costs] Orders: (1) The appeal is dismissed. (2) The appellant is ordered to pay the respondent's costs of the appeal, as agreed or assessed.

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