186 In Byron Shire Council v Fletcher (2005) 143 LGERA 155 I imposed a sentence of $20,000 for clearing about 50 regrowth trees on a building site within an area designated as a building envelope.
187 For more substantial clearing activities, the penalties have been higher. In Newcastle City Council v Pepperwood Ridge Pty Ltd (2004) 132 LGERA 388, a penalty of $68,000 was fixed for underscrubbing and the removal of somewhere between 110 and 164 dead, dying and living trees on a potential development site. In Council of Camden v Tax (2004) 137 LGERA 368, a penalty of $30,000 was imposed for cutting or removing about 40 trees.
Appropriate penalty for each individual offence
188 In fixing the appropriate punishment for the offences, the Court needs to consider the purposes of sentences relevant to the offences in this case.
189 There is a need to ensure that the appellant is made accountable for its actions and is adequately punished for the offences it has committed. This requires the Court to ensure that the punishment for each offence adequately reflects the objective seriousness of the offences, whilst also taking account of the subjective circumstances of the appellant.
190 There is a need to deter specifically the appellant from repeating the conduct that resulted in the commission of the offences, when the appellant carries out development in the future. The appellant needs to be told, by the Court's sentence, that breaches of the EPA Act, including by failing to carry out development consent, will be visited with significant financial consequences.
191 There is also a need to deter other persons engaged in the demolition, excavation, earthmoving, building, construction and development industries, who might be tempted to commit similar offences against the EPA Act by the prospect that, if they are caught, only light punishment will be imposed by the courts.
192 To achieve general deterrence, courts need to impose a penalty that not only acts as a warning to others but also makes it worthwhile that the cost of taking precautions to avoid committing the offence (such as by obtaining and complying with development consents be undertaken): Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359-360; Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [139]-[141], [148]-[157].
193 The sentence of the Court must also recognise that the appellant's conduct in committing the offences has caused harm to the community by damaging the natural environment that the relevant public authority, the Council, had required by imposing conditions on the development consent to be retained, protected and enhanced for the benefit of the community.
194 Taking account of these purposes of sentencing, as well as the objective circumstances of each of the offences and the subjective circumstances of the appellant, I would fix as the appropriate sentence for each offence a fine in the amount of $10,000 for each of the offences relating to the two trees, tree 187 and 188, and $45,000 for the more serious offence relating to the western corner of the site. In so doing, I have allowed for the 35 per cent combined discount for the appellant's early pleas of guilty, expressions of contrition and remorse and assistance to authorities.
195 Sentences in these amounts fall within the pattern of sentencing revealed by the cases discussed above.
Totality principle
196 The totality principle is a principle of sentencing which must be applied when sentencing an offender who has committed more than one offence. The court should consider questions of cumulation or concurrence as well as questions of totality. When reviewing the aggregate sentence, the Court must consider whether it is "just and appropriate" and reflects the total criminality before the court: see Mill v Queen (1988) 166 CLR 59 at 62-63; Pearce v The Queen (1998) 194 CLR 610 at 624 [49]; R v Kalache (2000) 11 A Crim R 15 at [110], [180]; AEM Snr; KEM; MM [2002] NSWCCA 58 (13 March 2002) at [70]; and R v Bahsa (2003) 138 A Crim R 245 at [62], [63].
197 The totality principle is applicable where the penalty is by way of fine: R v Sgroi (1989) 40 A Crim R 197 at 203; Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 704. However, the totality principle may not have the same force in the case of the imposition of fines, as opposed to the imposition of imprisonment where it has a special operation: see Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 704.
198 To reflect the fact that a number of sentences are being imposed, an appropriate aggregate may be reached by either making sentences concurrent or lowering the individual sentences below what would otherwise be appropriate. In R v Holder [1983] 3 NSWLR 245 at 260, Street CJ described the process as follows:
"Not infrequently a straight forward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. The effect of this practical consideration is always to produce an ultimate aggregate which is less than that which would be arrived at by a straightforward adding up of the terms appropriate for the offences if each were viewed alone. In carrying out this process of adjustment, it is both inevitable as well as proper that the ultimate decision be arrived at in the light of the totality of the criminality involved in all of the offences."
199 In determining an appropriate aggregate sentence, the Court must consider the need to uphold public confidence in the administration of justice. If sentences are reduced substantially, offenders may view that they can escape punishment for successive deliberate discrete offences: R v Wheeler [2000] NSWCCA 34 (16 February 2000) at [36]-[37].
200 In applying the totality principle, the Court must avoid determining a sentence that is disproportionate to the seriousness of the offence: R v A [1999] NSWCCA 61 at [32]. The Court must first fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well as questions of totality: Pearce v The Queen (1998) 194 CLR 610 at 624 [45]; R v Wheeler [2000] NSWCCA 34 (16 February 2000) at [31], [32] and R v AEM Snr; KEM; MM [2002] NSWCCA 58 (13 March 2002) at [64], [67].
201 A countervailing factor in sentencing for more than one offence is the need to ensure public confidence in the administration of criminal justice. A person who commits a series of deliberate discrete offences must not be left with the idea that he or she can escape effective punishment for successive offences each of which contributed to a whole course of deliberate criminal behaviour: R v Wheeler [2000] NSWCCA 34 (16 February 2000) at [36], [37], [51].
202 In this case, considering each offence individually, for the reasons I have earlier given, I would fix a sentence of a fine of $10,000 for each offence involving the removal of trees 187 and of 188 and a fine of $45,000 for the offence of failing to retain and protect the indigenous bushland in the western corner of the site and all existing trees, shrubs, groundcovers and sandstone rock outcrops.
203 Cumulatively, however, the aggregate sentence of $65,000 may exceed marginally what is appropriate in the circumstances. This is particularly so in relation to the two offences of removing the two trees having regard to the facts that the two trees were in close proximity, the contemporaneity and similarity of the conduct in removing the two trees and the breach was of the same condition of consent (condition 58). A downward adjustment of the amounts of the fines for these two offences to $7,500 each would be appropriate.
204 The offence involving the removal of the indigenous bushland and all of the existing trees, shrubs, groundcovers and sandstone rockcrops in the western corner of the site stands in a different position. It involves different criminal conduct to that which resulted in the two offences for removal of trees 187 and 188. The nature, extent and other features of the natural environment to be protected in that area, the particular means of protection required, the objective in protecting the area, the imposition of a particular consent condition requiring the protection of the area, the circumstances of the appellant's breach of the condition and the consequences of the breach are distinguishable from the circumstances involving the two trees the subject of a different consent condition and the appellant's breach of that condition. The criminality involved in the two sets of offences should not be conflated. No downward adjustment should be made to the amount of the fine for this offence.
205 If a downward adjustment is made to the individual sentences for the two tree offences, as I have found is appropriate, but no adjustment is made to the sentence for the offence relating to the western corner of the site, the resultant aggregate sentence of $60,000 would be proportionate to the total criminality of the appellant's conduct.
206 To reduce the sentences any further, however, would cause the reduced aggregate sentence to be disproportionate to the objective gravity of the offences. It would fail to reflect the total criminality of the appellant's conduct. It would also undermine public confidence in the administration of criminal justice by failing to effectively punish a person who commits discrete offences: R v Wheeler [2000] NSWCCA 34 (16 February 2000) at [36], [37].