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].