Eurobodalla Shire Council v Wheelhouse

Attorney General (NSW) v X (2000) 49 NSWLR 653; Coles v Woollahra Municipal Council (1986) 59 LGERA 133; Dinsdale v The Queen (2000) 200 CLR 321; Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349; Fletcher Constructions Australia Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (1999) 91 IR 66; House v The King (1936) 55 CLR 491; CASES CITED: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464; Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; R v Baker [2000] NSWCCA 85; R v Osenkowski (1982) 30 SASR 212; R v Rose [2004] NSWCCA 326; R v Temmingh [2005] NSWCCA 261; Sutherland Shire Council v Upper Class Developments Pty Limited [2003] NSWLEC 414; Terrace Tower Holdings Pty Limited v Sutherland Shire Council (2003) 129 LGERA 195

APPELLANT: M E McMahon (solicitor) SOLICITORS: Andrew Warren Associates LEGAL REPRESENTATIVES: RESPONDENT: M Baird (barrister) SOLICITORS: BHM Lawyers

JUDGMENT:

• 11 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

EUROBODALLA SHIRE COUNCIL v ARTHUR ALEXANDER WHEELHOUSE [2006] NSWLEC 98

EX TEMPORE JUDGMENT 1 HIS HONOUR: This is an appeal by the prosecutor against the amount of the penalty imposed by Magistrate Heilpern for an offence of carrying out development without consent, contrary to s 125 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). The defendant, Arthur Alexander Wheelhouse, had pleaded guilty before the magistrate of cutting down three trees without consent. The offence was committed on 1 April 2004 and the trees which the defendant felled comprised two gum trees and one cedar tree, all being relatively mature trees and which had stood on a neighbouring property. 2 The plea of guilty was entered after the defendant had first received a penalty notice which imposed a fine of $600. The defendant elected not to pay the fine but rather have the matter determined in the Local Court. The magistrate imposed a fine of $600 together with court costs of $63 and an order for the payment of the prosecutor's costs of $1,969. 3 The prosecutor now appeals to this Court against the inadequacy of the penalty. An appeal by a prosecutor only lies to this Court on a question of law: s 42(2A) Crimes (Local Courts Appeal and Review) Act 2001. In the present case the prosecutor has raised three grounds of appeal which are said to amount to questions of law: 1. That the learned magistrate erred in law in taking into account in the exercise of his discretion on sentence irrelevant matters, namely that the prosecution had been commenced by way of penalty infringement notice; 2. The penalty imposed by the learned magistrate was manifestly inadequate; and 3. The learned magistrate's discretion on sentence miscarried. 4 It is necessary to look briefly at the reasons of the magistrate to see how he arrived at a penalty of $600. After noting that the prosecutor had served a penalty notice and that the defendant had elected to have the matter proceed by way of a court attendance notice, the magistrate said: I realise that this probably opens myself up for at least a prosecutorial appeal in terms of the amount but it seems to me this: if I were to deal with this matter without any reference to the court attendance notice at all, the matter would be dealt with by fines in the tens of thousands of dollars. Given that the matter was initially dealt with by way of a penalty notice and that the defendant pleaded guilty, albeit on the disputed facts matter, and the defendant has no prior record and the like and obviously, it seems to me must not have realised the hot water he was getting himself into deeper and deeper in terms of these matters, I am going to impose the penalty of $600, $63 court costs, twenty-eight days to pay which represents the original amount that council elected to deal with the matter on. 5 Mr M E McMahon, appearing for the prosecutor, submits that the magistrate committed an error of law by taking into account an irrelevant matter, namely by permitting himself to be influenced by the amount of the penalty notice. According to the submission it is an error of law to allow extraneous or irrelevant matters to affect the decision. Reference was made to House v The King (1936) 55 CLR 491 at 505 and Sutherland Shire Council v Upper Class Developments Pty Limited [2003] NSWLEC 414. Reference was also made to s 37 of the Fines Act 1996 which states: If a person duly elects to have the matter dealt with by a court, proceedings against the person in respect of the offence may be taken as if a penalty notice or penalty reminder notice had not been issued. 6 The use of the word "may" rather than the word "shall" in s 37 suggests, however, that the penalty notice is not necessarily an irrelevant consideration, but on the contrary it may be one of a number of considerations that the court may take into account. I thus do not accept the submission that the magistrate committed an error of law in taking into account the penalty notice. 7 A second limb of the first ground of appeal relied upon by the prosecutor is that by giving undue weight to the penalty notice the magistrate erred in law. I am unable to agree with this submission. A misattribution of weight does not involve a question of law so long as irrelevant factors are not taken into account. It is generally a matter for the magistrate to determine the appropriate weight to be given to any particular consideration: see Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 41, Coles v Woollahra Municipal Council (1986) 59 LGERA 133 at 140, Attorney General (NSW) v X (2000) 49 NSWLR 653 at 666 and Terrace Tower Holdings Pty Limited v Sutherland Shire Council (2003) 129 LGERA 195 at 206. 8 I now turn to the second ground of appeal, namely that the penalty imposed by the magistrate was manifestly inadequate. It is common ground that manifest inadequacy in sentence or penalty, if established, is an error of law: see R v Osenkowski (1982) 30 SASR 212, Dinsdale v The Queen (2000) 200 CLR 321 at 325, R v Baker [2000] NSWCCA 85 at [19], and R v Rose [2004] NSWCCA 326 at [24]. This is based on an assertion that the penalty is so manifestly inadequate that some error of principle must have occurred. 9 The magistrate acknowledged in his reasons that this was a serious matter: The situation is, in my view, this is a serious matter. These are not small trees. It's not a small breach and, really, the more that the defendant tries to find some wriggle room in terms of how he justified the removal of the trees, really, the more serious it got, in my view. The situation is that these trees, one of them was some five years old, I'm told, the cedar tree, and obviously, they have some emotional attachment but more than that, tree preservation orders are there for a very good reason and that is to preserve the trees for the whole of the community, not just the individuals. This is a case where an individual has put their own desires above that of the community and it is a serious matter. 10 The seriousness of the matter is reflected by the maximum penalty which the legislature has seen fit to impose, $1.1 million, although the Local Court may only impose a penalty up to its jurisdictional limit of $110,000. Moreover, the range of penalties that have been imposed for similar offences in other cases involving the felling of trees is far in excess of that which was imposed by the magistrate. 11 It is self-evident, in my view, that the penalty was manifestly inadequate taking into consideration the various matters prescribed by ss 5 and 21A of the Crimes (Sentencing Procedure) Act 1999. In accepting the prosecutor's submission that the penalty imposed by the magistrate was manifestly inadequate it becomes unnecessary to consider the third ground of appeal raised, namely that the magistrate's discretion on sentence miscarried. 12 When the Court finds an error of law in an appeal such as this, the Court in effect re-exercises the sentencing discretion and re-determines the appropriate penalty for the offence: see s 48 Crimes (Local Courts Appeal and Review) Act 2001. In doing so now I accept the submission of Mr M Baird, appearing for the defendant, that the Court must be astute to avoid a result which may be in the nature of double jeopardy. If the Court does substitute its own sentence for an inadequate sentence, the sentence will generally be less than that which would have otherwise been imposed and towards the lower end of the available range: see R v Temmingh [2005] NSWCCA 261 at [27].

13 The primary consideration in sentencing is the objective gravity or seriousness of the offence: Fletcher Constructions Australia Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (1999) 91 IR 66 at 77 to 81, also Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464. A number of factors in the present case indicate the seriousness of the offence in question.

14 I have referred to the penalty fixed by the legislation, which indicates the seriousness with which the legislature regards offences of this nature. Another matter relating to the objective gravity or seriousness of the offence is the fact that the trees were relatively mature and were located not on the defendant's property, but on the adjoining property. A further consideration is the fact that this appears to have been a deliberate and intentional act on the part of the defendant.

15 Mr Baird relies upon a number of mitigating factors: the fact that the defendant entered a plea of guilty; the fact that he has no prior record; and the fact that the magistrate found that the defendant may not have realised the hot water he was getting himself into in doing what he was doing. I also have the benefit of a number of references that have been submitted on the defendant's behalf and I note that each of the referees states that they are aware of the fact of the offence and of these proceedings. I note, however, that the author of two of the references is the same person, although signing in a different capacity on each occasion. 16 I also note that the defendant has expressed in writing his genuine remorse and regret at the commission of the offence. I accept the fact that he was suffering considerable distress at the time the matter was heard in the Local Court. One of the matters causing him such anguish was the fact that there was to be an inquest into the death of his son to be held the following day. At the time of the commission of the offence, however, the son had not died and he would have been under no such stress at that time. In other words I am satisfied that the need for a specific deterrent by way of penalty in the present case is not one which would play a large part in this sentencing process, but the sentence must reflect both the objective circumstances of the offence and the fact that the community must be satisfied that the offender is given his just desserts. 17 In particular s 3A of the Crimes (Sentencing Procedure) Act 1999 provides, inter alia, that the purpose of imposing a sentence on an offender includes: "(a) to ensure that the offender is adequately punished for the offence"; "(b) to prevent crime by deterring other persons from committing similar offence", and "(f) to denounce the conduct of the offender". In my view, the sentence of the Court is a public denunciation of the conduct of the defendant and, importantly, must serve as a general deterrence. Persons will not be deterred from committing similar offences by nominal fines: see Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 at 354. The deterrent effect of a fine must send an important message that laws protecting the environment and important components of it must be complied with. The community must be satisfied that an offender is given his just desserts. 18 In my opinion, having regard to the seriousness of the offence and the mitigating factors to which I have referred, the penalty that would normally be imposed would be in the range of about $20,000. Having regard, however, to what was said by the Court of Criminal Appeal R v Temmingh, noted above, the sentence must be at the lower end of the available range. In this case it would be $15,000 which I am prepared to discount further to $10,000 to take account of the mitigating factors to which Mr Baird has referred. 19 Accordingly, it is appropriate that the formal orders of the Court be:

1. The defendant is convicted of the offence as charged. 2. The defendant must pay a penalty in the sum of $10,000.

HIS HONOUR: I presume that you're seeking costs, Mr McMahon?

MCMAHON: Those are my instructions, your Honour. BAIRD: Your Honour, in relation to the formal orders may I respectfully suggest that order one should of course be that the appeal is allowed and that the sentence is varied. HIS HONOUR: Yes, it was a plea of guilty. BAIRD: Yes, it was a plea of guilty so the defendant already has been convicted.

HIS HONOUR: So what do you say the formal order should be?

BAIRD: That the appeal be allowed and a penalty in the sum of $10,000.

HIS HONOUR: -- by substituting $600 with a penalty of $10,000. That would be the correct form, I take it?

BAIRD: Yes, I think that would be appropriate there.

HIS HONOUR: Then that will be the formal form of the order.

BAIRD: Thank you, your Honour. Just in relation to the question of costs, and this raises again the question of double jeopardy by punishing the defendant both in relation to the primary costs of the hearing and the costs of the appeal, the power with respect to costs of the - there's already the costs in the Local Court, there would be the increased penalty and then there would be the third punishment by way of a further costs order. With respect to the powers of this Court to order costs, s 69 of the Land and Environment Court Act 1979 is expressly excluded in Class 6 which would seem to enliven the power under s 49 of the Crimes (Local Courts Appeal and Review) Act 2001 .

BAIRD: Section 49(4) "Subject to s 70 the...it thinks just".

BAIRD: Section 70 is a limit on costs ordered against the Public Prosecutor which deals relevantly if a conviction is set aside.

BAIRD: Your Honour, there is no application in this particular instance for a claim under the Suitors' Fund Act 1951 which seems to apply specifically to appeals where a Crown appeals and a defendant is forced to essentially defend the decision of a magistrate. There may be an application in the Supreme Court but not under the Land and Environment Court Act to the Suitors' Fund so the defendant is in the position that not only must he pay the costs of his own legal advisors in defending an appeal but he may be exposed and there is no recourse to any order so in those circumstances my submission is that it would be unjust to award costs against the defendant in circumstances where he has been convicted, been tried and convicted, the Crown has appealed on sentence and is successful on that appeal and in relation to it has increased its sentence.

It wouldn't be a situation where costs should follow the event in that this is a criminal matter where the defendant has an entitlement to argue that the decision of the lower court was fair and reasonable. In those circumstances there should be no order as to costs.

HIS HONOUR: Mr McMahon, have the costs been estimated?

MCMAHON: No, not at this time. I could find the figure for you if --

HIS HONOUR: Because it says " [t] he Land and Environment Court may make such order as to the costs to be paid by either party as it thinks just". That suggests to me that I have to determine--

BAIRD: Your Honour, there is just one other ancillary matter that my friend raised and that is in relation to the other--

BAIRD: And your Honour that might have a bearing on the question of costs if all that money is to go back to the prosecutor in any event.

MCMAHON: I've been instructed to ask for $7,000. There is also the question of--

HIS HONOUR: The moity. What about the moity of the fine?

BAIRD: The moity. I was just about to say that the whole lot should go back to the council. Section 694 of the Local Government Act 1993 provides that, without any formal order of the Court in any event but we say that--

HIS HONOUR: You don't need a formal order; it just says it shall happen, doesn't it?

BAIRD: It shall happen, yes, so it wasn't necessary for the Local Court and it's not necessary in front of you but if you wish to put the Local Court at ease as to where the money's going that probably would be an advantage.

HIS HONOUR: I think I should say something about it.

HIS HONOUR: I don't wish to hear you on costs Mr McMahon.

20 On the question of costs, provision exists in s 49(4) of the Crimes (Local Courts Appeal and Review) Act 2001 for this Court to make such order as to the costs to be paid by either party as it thinks just. The prosecutor in the present case seeks an order for costs in the sum of $7,000. Mr Baird, appearing for the defendant, opposes any order for costs, in effect saying that his client is not protected by the Suitors' Fund Act and must bear the costs himself. If he were to pay the costs it would amount to, in effect, double jeopardy in costs. In my view, however, applying the principles in Latoudis v Casey (1990) 170 CLR 534, it seems to me that I am bound to apply principles explained by the High Court and make an order that costs follow the event. The amount sought seems to me to be just. 21 There will be an order that the defendant pay the prosecutor's costs in the sum of $7, 000. The will be a further order pursuant to s 694 of the Local Government Act 1993 that the penalty is to be paid to the prosecutor. The exhibits may be returned. Anything else at this stage? BAIRD: Just in relation to the question of time to pay with the standard twenty-eight days --

HIS HONOUR: The standard is twenty-eight days. An application can be made to the Registrar to vary that.

BAIRD: Yes, your Honour, that may be the appropriate course.

I hereby certify that the preceding 21 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

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.