Hawkesbury City Council v Saed

Catchwords

(2009) 168 LGERA 121 Elias v The Queen [2013] HCA 31(2006) 148 LGERA 299 Georges River Council v WK Strong Pty LtdGeorges River Council v Awada [2019] NSWLEC 97 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242(2006) 145 LGERA 189 Gore v The Queen [2010] NSWCCA 330(2010) 208 A Crim R 353 Harris v Harrison [2014] NSWCCA 84(2014) 86 NSWLR 422 Hoare v The Queen [1989] HCA 33(2005) 228 CLR 357 Muldrock v The Queen [2011] HCA 39(2011) 244 CLR 120 Pittwater Council v Scahill [2009] NSWLEC 12(2009) 165 LGERA 289 Plath v Rawson [2009] NSWLEC 178(2009) 170 LGERA 253 R v Crombie [1999] NSWCCA 297 R v Doan [2000] NSWCCA 317(2000) 50 NSWLR 115 R v Dodd (1991) 57 A Crim R 349 R v Nichols (1991) 57 A Crim R 391 R v Olbrich [1999] HCA 54(1999) 199 CLR 270 R v Oliver (1980) 7 A Crim R 174 R v ThomsonR v Houlton [2000] NSWCCA 309(2000) 49 NSWLR 383 R v Visconti [1982] 2 NSWLR 104 R v Wickham [2004] NSWCCA 193 Veen v The Queen [1979] HCA 7

Judgment (41 paragraphs)

[1]

CLR 348 Hunters Hill Council v Carter [2018] NSWLEC 84 Hunters Hill Council v Gary Johnston [2013] NSWLEC 89 Hunters Hill Council v Liu [2018] NSWLEC 108 Ku-ring-gai Council v Chia (No 10) [2019] NSWLEC 184 Ku-ring-gai Council v Edgar [2017] NSWLEC 49 Le v R [2019] NSWCCA 181 Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 R v Crombie [1999] NSWCCA 297 R v Doan [2000] NSWCCA 317; (2000) 50 NSWLR 115 R v Dodd (1991) 57 A Crim R 349 R v Nichols (1991) 57 A Crim R 391 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Oliver (1980) 7 A Crim R 174 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v Visconti [1982] 2 NSWLR 104 R v Wickham [2004] NSWCCA 193 Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 Veen v The Queen (No 2) [1988] HCA 1; (1988) 164 CLR 465 Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 Willoughby City Council v Rahmani [2017] NSWLEC 166 Category: Sentence Parties: Hawkesbury City Council (Prosecutor) Hadi Saed (Defendant) Representation: Counsel: Dr J Smith (Prosecutor) A Patterson (Defendant)

[2]

Solicitors: Marsdens Law Group (Prosecutor) Edmond Khoury Solicitors (Defendant) File Number(s): 2021/131214 Publication restriction: Nil

[3]

Saed Removes Trees Without Consent

The defendant, Hadi Saed, has pleaded guilty to an offence under ss 4.2 and 9.51 of the Environmental Planning and Assessment Act 1979 ("EPAA"), occasioned by his removal of 20 trees on 20 May 2019 at 57 Prentis Lane, Ebenezer (Lot 191 DP 832684) ("the land") without development consent and in breach of the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 ("SEPP").
Saed was charged with the following contravention of the SEPP as a result of the commission of the offence ("the offence"): 1. An order that the Defendant, Hadi Saed, appear before a judge of the Court to answer the charge that between on or about 20 May 2019 at 57 Prentis Lane, Ebenezer comprising Lot 191 DP 832684 (the Land) he committed an offence against s 9.51 of the Environmental Planning and Assessment Act 1979 (the Act) in that he did the following things which was forbidden by s 4.2 of the Act to be done without a permit having first been obtained:- He carried out development on land, namely the removal of trees on the Land being development which was only permissible with a permit under the provisions of an environmental planning instrument which applied to the Land, namely State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 contrary to s 4.2 of the Act without a permit first having been obtained: Particulars The land The development was carried out at 57 Prentis Lane, Ebenezer comprising Lot 191 DP 832684 The trees Twenty (20) trees were removed from the Land The trees where native trees and located on Land zoned RU1 Primary Production under the Hawkesbury Local Environmental Plan 2012. The species of the trees that were removed from the Land were as follows: TREE SPECIES
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[4]

Requirement for permit No permit had been issued by the Prosecutor for the clearing of vegetation on the Land. The manner of contravention by the defendant The Defendant carried out the removal of 20 trees on the Land without first obtaining the authority conferred by a permit granted by the Prosecutor, where such a permit was required.

[5]

Legislative and Regulatory Framework

Section 4.2 of the EPAA relevantly provides that: 4.2 Development that needs consent (1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless - (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument. Maximum penalty - Tier 1 monetary penalty. (2) For the purposes of subsection (1), development consent may be obtained - (a) by the making of a determination by a consent authority to grant development consent, or (b) in the case of complying development, by the issue of a complying development certificate.
Section 9.51 of the EPAA states that: 9.51 Maximum monetary penalty - Tier 1, Tier 2 or Tier 3 If Tier 1, Tier 2 or Tier 3 is specified as the maximum monetary penalty at the end of a provision (or a number of provisions) of this Act, a person who contravenes or fails to comply with that provision (or those provisions) is guilty of an offence and liable to a monetary penalty not exceeding the relevant penalty specified in the following sections. If a period of imprisonment is also specified, the person is also liable to imprisonment not exceeding the period so specified.
The SEPP is in the following relevant terms: 7 The clearing of vegetation in non-rural areas that requires authority under this Policy (1) A person must not clear vegetation in any non-rural area of the State to which Part 3 applies without the authority conferred by a permit granted by the council under that Part. … 9 Vegetation to which Part applies (1) This Part applies to vegetation in any non-rural area of the State that is declared by a development control plan to be vegetation to which this Part applies. (2) A development control plan may make the declaration in any manner, including by reference to any of the following: (a) the species of vegetation, (b) the size of vegetation, (c) the location of vegetation (including by reference to any vegetation in an area shown on a map or in any specified zone), (d) the presence of vegetation in an ecological community or in the habitat of a threatened species.
For the purposes of cl 9 of the SEPP, the Hawkesbury Development Control Plan 2002 ("the Hawkesbury DCP") identifies vegetation to which the SEPP applies. All 20 trees the subject of the charge were of a size and species regulated by the Hawkesbury DCP, and therefore, the SEPP applied.

[6]

Constantine Engages Saed to Undertake Gardening and Maintenance on the Land

The facts giving rise to the commission of the offence were uncontroversial and were contained in a statement of agreed facts dated 23 September 2021, together with the unchallenged written evidence of Philip Khalifeh, sworn 13 March 2021, and the affidavits of Saed, affirmed 20 January ("first affidavit") and 4 March 2022 ("second affidavit").
The land is 4.7 ha and is zoned RU1-Primary Production under the Hawkesbury Local Environmental Plan ("Hawkesbury LEP"). The land is mapped under the Hawkesbury LEP as "significant vegetation". A site visit by Abel Ecology on 5 November 2019, who was hired by the Hawkesbury City Council ("the Council") to inspect the site, identified several species that form part of the critically endangered Shale Sandstone Transition Forest in the location where the offence was committed.
The records of the Council contained in its Geographical Information System confirm that the land contains the vegetation class "31-Shale Sandstone Transition Forest (High Sandstone Influence)". This class forms part of the Shale Sandstone Transition Forest in the Sydney Basin Bioregion Ecological Community ("SSTFEC"), which is listed as a critically endangered ecological community ("EEC").
Located on the land is a residential dwelling and ancillary sheds. The owner of the land, Kerry Constantine, resides on the land. The land is not used for any other purpose.

[7]

Saed's Gardening and Maintenance Business

From early 2019 Saed was running a gardening and maintenance business. He was not, however, a licensed arborist and held no formal qualifications in landscaping or horticulture.
Sometime in early 2019, Constantine, Saed's girlfriend at the time, offered Saed a weekly payment to maintain the land. Constantine arranged for Saed to carry out general gardening duties, including tidying up, mowing and the removal of dead trees.

[8]

The Removal of the Trees

On 20 May 2019 Saed hired gardening equipment, including a chainsaw, and asked his brother and cousin to attend the land to undertake a "major clean up". They commenced work at 11 am and cut down 20 trees that they considered to be either dead or that had dead branches.
They finished that afternoon and were preparing to return the gardening equipment when Council officers Cassandra Bugden and Khalifeh arrived at the land at 3:40 pm. The Council officers had received a complaint from a member of the public concerning the cutting down of trees on the land.
Upon arrival, Bugden and Khalifeh went to the residential dwelling located on the land where a conversation took place. From the veranda, Bugden and Khalifeh observed what appeared to be a number of trees that had been cut down.
Bugden and Khalifeh then left the veranda and walked towards the area where the trees had been felled. Bugden and Khalifeh encountered three men. A conversation was held between Khalifeh and Saed. The discussion was recorded in Khalifeh's notebook.
Saed admitted to Khalifeh that he was the person in charge of the tree felling. Saed further told Khalifeh that he did not know if there was approval to cut down the trees.
Khalifeh and Bugden then walked to where the trees had been cut down. Khalifeh took a number of photographs. Both Khalifeh and Bugden then left the land.

[9]

The Council's Investigation

On 22 May 2019 Bugden and Khalifeh returned to inspect the land, accompanied by another employee of the Council, Colin Sproule. Sproule, at that time, was employed by the Council as an Operational Parks Supervisor. He was a qualified arborist.
Sproule made observations and measured the stumps of each tree cut down on the land. Sproule dictated the measurements to Bugden, who wrote the measurements down. Khalifeh also took photographs of each felled tree and the remaining tree stumps. Sproule observed that 20 trees had been felled.
After the inspection on 22 May 2019, Bugden prepared a document from her handwritten notes confirming the measurements of the 20 trees taken by Sproule.
On 28 May 2019 Constantine attended the Council's offices and was interviewed by Bugden and Khalifeh.
Constantine confirmed that she had arranged for Saed to attend the land for the purpose of carrying out general tidying up, mowing and the removal of dead trees. She told the Council that she had neither authorised nor directed the removal of the 20 trees by Saed. Constantine was upset that the trees had been cut down.
Constantine further stated that she had known Saed for 14 months and that she considered herself to be his girlfriend.
Bugden and Khalifeh conducted an interview with Saed on 31 May 2019 at the Council's offices. With the assistance of an interpreter, Saed admitted that he was the person responsible for cutting down the trees on the land. Saed stated that he had been requested by the owner "to clean the place" and that "by mistake we cut the trees". During the interview, Saed admitted that he had cut down the trees in the company of two other men, including his brother, and that he had rented a chainsaw to do so. Saed stated that he had known the owner of the land for approximately two years. He confirmed that she was his girlfriend. Saed further said that he had previously spoken with Constantine about cutting down the trees to see the view. Saed stated that he was unaware that Council approval was required to remove the trees.
Bugden carried out a review of the Council's Register of Consents and Certificates held pursuant to s 4.58 of the EPAA and confirmed that no development consent, or other approval or certificate had been issued authorising the removal of trees from the land.

[10]

The Trees

Of the 20 trees felled by Saed, 19 were alive and healthy prior to being cut down and one was dead.
During the hearing, the Court was taken to a map, printed by Khalifeh on 26 November 2019, detailing where the 20 trees had been cut down. The trees were clustered and positioned in the centre of the land.

[11]

The Purposes of Sentencing

The purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 ("CSPA"): 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.

[12]

Statutory Matters Required to be Taken into Account in Sentencing

Subsections 21A(2) and (3) of the CSPA also set out aggravating and mitigating factors that the Court must consider. Relevant to the facts of this case they are: 21A Aggravating, mitigating and other factors in sentencing (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: … (d) the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences), … (g) the injury, emotional harm, loss or damage caused by the offence was substantial, … (o) the offence was committed for financial gain, … The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, … (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), … (k) a plea of guilty by the offender (as provided by section 22 or Division 1A), … (m) assistance by the offender to law enforcement authorities (as provided by section 23)…
The appropriate sentence for Saed is to be determined by an instinctive synthesis of all of the relevant objective and subjective circumstances (Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357).
The Council bears the onus of proving beyond reasonably doubt any aggravating factors for the purpose of sentencing (Gore v The Queen [2010] NSWCCA 330; (2010) 208 A Crim R 353 at [26] and [104] and R v Wickham [2004] NSWCCA 193 at [27]). The onus of proof lies upon Saed, however, to establish any factor in mitigation on the balance of probabilities (Wickham at [27] and R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27]).

[13]

Objective Circumstances of the Commission of the Offence

The objective gravity of the offence fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit insofar as the sentence must not exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances (Veen v The Queen (No 2) and Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at 354). It fixes the lower limit because allowance for the subjective factors of the case ought not produce a sentence which fails to reflect the objective gravity or seriousness of the offence (R v Dodd (1991) 57 A Crim R 349 at 354 and R v Nichols (1991) 57 A Crim R 391 at 395).
The objective seriousness is to be determined by reference to the nature of the offence and not by reference to matters that are personal to a particular offender (Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27]).
In determining the objective seriousness or gravity of the offence the relevant objective circumstances include: the nature of the offence; the maximum penalty under the Act establishing the offence; the reasons for committing the offence; the environmental harm caused by the commission of the offence; the foreseeability of the risk of environmental harm caused by the commission of the offence; the practical measures to prevent environmental harm; Saed's control over the causes giving rise to the offence; and Saed's state of mind in committing the offence.

[14]

Nature of the Offence

The nature and purpose of the statutory provision that has been contravened, and its place in the statutory scheme, are illustrative of the objective seriousness of an environmental offence (Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [168]-[172]; Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [49] and Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 at [59]).
The objects of the EPAA are relevantly: 1.3 Objects of Act The objects of this Act are as follows - (a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State's natural and other resources, (b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment, (c) to promote the orderly and economic use and development of land, … (e) to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats…
The aims of the SEPP contained in cl 3 of that instrument: 3 Aims of Policy The aims of this Policy are: (a) to protect the biodiversity values of trees and other vegetation in non-rural areas of the State, and (b) to preserve the amenity of non-rural areas of the State through the preservation of trees and other vegetation.
Offences against the EPAA and other environmental planning instruments undermine the integrity of the planning system of the State. This was recognised in Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 (at [46]). More recently in the context of the unlawful removal of trees, see Ku-ring-gai Council v Chia (No 10) [2019] NSWLEC 184 (at [26]). In Scahill Preston J aptly observed that (at [18]): 18 There is a need for the upholding of the integrity of the system of planning and development control. The system depends on persons taking steps to obey the law by ascertaining when development consent is required, obtaining development consent when required, and carrying out development in accordance with any development consent obtained: Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [104], [105] and Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [18].

[15]

Maximum Penalty

The maximum penalty provided for the commission of an offence the Court noted reflects the seriousness with which Parliament views the commission of the offence (Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698E and Rawson at [57]). It also provides a sentencing yardstick for the case before the Court (Markarian at [31] and Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483 at [27]).
It was not in dispute that the offence committed by Saed was a Tier 2 Offence for the purposes of sentencing under ss 4.2(1) and 9.52(3) of the EPAA.
Therefore, at the time of the commission of the offence the maximum penalty for the offence was $500,000 for an individual (s 9.53(1)(b)(i) of the EPAA).

[16]

Saed's State of Mind in the Commission of the Offence

The offence is a crime of strict liability which means that mens rea is not an element of the offence. However, the state of mind of Saed at the time of the commission of the offence is a relevant consideration in the determination of an appropriate sentence. A strict liability offence that is committed intentionally, negligently, or recklessly, will be objectively more serious than one committed accidentally (Camilleri's Stock Feeds at 700A-700E; Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [123]; Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [42]; and Rawson at [98]).
The Council submitted that Saed committed the offence negligently because a reasonable person in Saed's position would have made enquiries as to whether approval was required prior to removing the 20 trees.
Saed submitted that he did not know that the removal of the trees was prohibited. He noted that he had only been living in Australia for six years, having come to Australia as a refugee from Iran and that he spoke very little English. He also emphasised that Iran had very different laws to Australia.
Saed further submitted that he had been diagnosed with mental health issues that impacted upon his state of mind at the time of the commission of the offence.
Negligence is assessed on an objective basis. The relevant test for criminal negligence in the context of environmental crime was set out in City of Parramatta Council v Sydney Trees Excavation and Demolition Pty Ltd [2021] NSWLEC 71 (at [94]): 94 The test for criminal negligence in the context of environmental crime is to inquire whether there has been such a great falling short of the standard of care which a reasonable person would have exercised and which involved such a high risk that harm would follow that the doing of the act or the omission merits criminal punishment (Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 at [188] and Sydney Water Corporation [2021] NSWLEC 4 at [176]).
The Council submitted that a reasonable person in the position of Saed, that is a person who had resided in Australia for six years and was engaged in the gardening and landscape maintenance industry, ought to have made enquiries before removing the 20 trees in order to determine if consent was required and that his failure to do so amounted to negligence.

[17]

There is No Nexus Between Saed's Mental Health Conditions and His State of Mind in the Commission of the Offence

In his first affidavit Saed attached medical evidence to the effect that he has been diagnosed with an adjustment disorder, together with mixed anxiety and depression. Dr Kasim Abaie, Saed's psychologist, stated that Saed suffered from the following impairments: 1. depressive mood and low mood with low concentration; 2. elevated stress, anxiety and sleeping difficulties; 3. social isolation and learning difficulties since childhood; 4. difficulties making decisions; and 5. hearing voices or noises.
Although the evidence was not challenged by the Council, the Court places limited weight on Saed's impaired mental health because no nexus was established between Saed's ill health and his state of mind at the time of the commission of the offence. The Court is, therefore, unable to find on the balance of probabilities that his poor mental health affected his state of mind at the commission of the offence.

[18]

The Environmental Harm Caused or Likely to be Caused by the Commission of the Offence

The environmental harm caused by the commission of the offence is a central consideration in determining its objective gravity and Saed's culpability.
The concept of harm in the context of environmental offences is broad. In Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 Preston J stated that harm includes both actual harm and potential harm, that can be direct and indirect (at [145]-[149]).
The Council submitted that the removal of the trees caused actual substantial harm which constituted an aggravating factor under the CSPA. First, in addition to the trees being mature and forming part of the SSTFEC EEC, 19 of the trees were considered to be a feed tree species for Koalas, a threatened species under the Biodiversity Conservation Act 2016 ("BCA") and Sch 2 of the State Environmental Planning Policy (Koala Habitat Protection) 2020. The trees were also considered to be potential Koala habitat.
Second, there were populations of Yellow-Bellied Gliders, a threatened species under the BCA, as well as a range of micro bat species, that used the habitat provided by the trees. Abel Ecology, who prepared a Site Conditions Report and Vegetation Management Plan for the land, dated 20 November 2019 ("the Abel Report"), observed that the 20 felled trees were a species of grey gum that: …populations of yellow-bellied glider Petaurus australis (threatened species Biodiversity Conservation Act 2016 Schedule 1 Part 3 Vulnerable) that rely on grey gums for food, by chewing into the bark to eat excluded sap. The limiting resource for this glider is large hollow trees to use as dens for sleeping and breeding. Grey gum is a species that develops large valuable hollows for fauna habitat. The felled trees had no large hollows but are large enough to have started developing hollows in the near future.
I accept the submissions of the Council. The following authorities support a finding that substantial actual harm has been caused by the commission of the offence: 1. first, in Scahill [2009] Preston J held that the harm to the environment caused by the cutting down of two trees that formed part of an EEC was substantial constituting a factor of aggravation notwithstanding the prosecutor's concession that the impact of the offences could only be described as minimal; 2. second, Hunters Hill Council v Liu [2018] NSWLEC 108 concerned the removal of two trees subject to a tree preservation order. The trees were found to be of minor ecological importance but of high landscape significance. The Court accepted that the harm caused by their removal was substantial; 3. third, the decision in Hunters Hill Council v Gary Johnston [2013] NSWLEC 89 where the Court determined that the environmental harm caused by the removal of three trees, and the part removal of a fourth tree, was sufficient to constitute a factor of aggravation. The Court had regard to the landscape significance of the trees and the fact that their retention had been required by the council in order to offset the amenity impacts of the development; 4. fourth, the decision in Hunters Hill Council v Carter [2018] NSWLEC 84 where it was held that substantial environmental harm was caused by the lopping and topping of 13 trees having regard to the number of trees damaged and their maturity; and 5. fifth, the case of Sydney Trees Excavation and Demolition, where 21 trees were removed, many of which were mature and one of which formed part of an EEC.

[19]

Saed's Reasons for Committing the Offence

The criminality involved in the commission of the offence by a defendant is measured not only by the seriousness of what actually occurred but also by reference to the reasons for its occurrence (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366 and Bentley at [237]).
The prosecution submitted that Saed committed the offence for the following reasons thereby increasing the objective seriousness of the offence: 1. he was motivated to remove the trees to make his regular maintenance in the course of his gardening business easier which disclosed a financial motivation; and 2. he wanted to improve the views of the Blue Mountains on the land for his girlfriend's and his benefit.
In my view, the evidence does not disclose to the requisite criminal standard that Saed committed the offence for financial gain (s 21A(1)(o) of the CSPA). First, neither proposition above was put, as it ought to have been, to Saed by the Council. Second, while Saed admitted that he felled the trees to improve the view, there is no evidence that this was carried out for his benefit (he did not reside at or own the land) or that this would result in financial advantage to him. Likewise, there was no evidence whatsoever that the trees were removed to financially advantage his gardening business.

[20]

Reasonable Foreseeability of the Harm Caused or Likely to be Caused to the Environment by the Commission of the Offence

The Court must have regard to the reasonable foreseeability of the harm caused, or likely to be caused, to the environment by the commission of an offence under the EPAA (Rawson at [48]).
It was not in dispute that the harm occasioned by the commission of the offence was reasonably foreseeable.

[21]

Control Over the Causes of the Commission of the Offence

Saed had complete control over the causes of the commission of the offence. To the extent that his brother and cousin were assisting him, at all times Saed directed them in the removal of the trees.

[22]

Practical Measures Which Could Have Been Taken to Avoid the Harm

Saed could and should have checked with the Council whether the tree removal was lawful in order to avoid the harm caused by the commission of the offence. He made no enquiries in order to ascertain whether he needed permission to cut down the trees.

[23]

Conclusion on the Objective Seriousness of the Offence

The Council contended that the objective seriousness of the offence was "substantial".
Having regard to my finding that Saed did not commit the offence negligently but that the commission of the offence occasioned substantial actual and potential environmental harm, I am satisfied that the commission of the offence was of moderate to low objective seriousness.

[24]

Saed's Subjective Circumstances

A proportionate sentence requires the Court to take into account any mitigating factors that are personal to Saed (s 21A(3) of the CSPA). Relevant subjective circumstances in the present case include: 1. whether Saed has demonstrated remorse for the commission of the offence (s 21A(3)(i) of the CSPA); 2. whether, and when, Saed entered a guilty plea (ss 21A(3)(k) and 22 of the CSPA and R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [152]-[155]); 3. whether Saed provided assistance to the regulatory authorities in the investigation and prosecution of the offence (ss 21A(3)(m) and 23 of the CSPA); 4. whether Saed is of good character (s 21A(3)(f) of the CSPA); and 5. whether Saed has a prior criminal record (s 21A(3)(e) of the CSPA).

[25]

Contrition and Remorse

In his first affidavit Saed expressed genuine contrition and remorse (Waste Recycling at [203]-[215]). Relevantly, he stated: I cannot put into words how truly remorseful I am for my actions, and I hope that this isolated incident does not shape the rest of my life for the worst. I find it difficult to find the right words to express how my life has been affected after being charged. I honestly feel there is no excuse or justification for what I ignorantly did. … I wish to finally say that I am so embarrassed and genuinely sorry for committing this offence and that I am now well aware of the offence. I can undertake to the court that this will not happen again.
It is noted that Saed was present in Court during the sentence hearing.
I have taken into account Saed's remorse as a mitigating factor.

[26]

Early Plea of Guilty

A guilty plea entered at the earliest available opportunity entitles the defendant to the full 25% discount for the utilitarian value of that early plea (ss 21A(3)(k) and 22 of the CSPA; R v Thomson; R v Houlton at [152]).
In the absence of any submission to the contrary from the Council, I accept that Saed entered a plea of guilty at the earliest opportunity and that, therefore, he is entitled to the full 25% discount for the utilitarian value of the plea.

[27]

Assistance to the Authorities

Saed provided assistance to the Council in the investigation and prosecution of the offence (ss 21A(3)(m) and 23 of the CSPA) by: 1. giving full and frank evidence in interviews with the Council; and 2. participating in the preparation of an agreed statement of facts for the purpose of the sentence hearing.
The Council submitted that the extent of Saed's assistance was minor because his participation in the interviews was nevertheless required by s 9.23 of the EPAA. The Council further submitted that Saed's admissions to the Council did not constitute assistance to the authorities for the purpose of s 23(1) of the CSPA (citing Le v R [2019] NSWCCA 181 at [53]-[54]).
I find that Saed provided assistance to the Council. Saed readily admitted his unlawful conduct and did not attempt to downplay his role in the commission of the offence. Le can be distinguished on this basis. Saed's interview with the Council, although required, was in no way reluctant. And his willing assistance in the preparation of an agreed statement of facts ought not be discounted, as the Council seeks to do.

[28]

The Good Character of Saed

Attached to his affidavit were three character references attesting to Saed's good character: 1. from Khadar Roude, who has known Saed for three years, dated 4 March 2022; 2. from Wassim Hawchar, who has known Saed for two years, dated 2 March 2022; and 3. from Elias Khoury, Saed's accountant, dated 1 March 2022.
All three character references described Saed's decency, trustworthiness and general lawfulness. They also emphasised his contrition for the commission of the offence.
But for the commission of the offence, I therefore find Saed to be of good character (s 21A(3)(f) of the CSPA).

[29]

Saed Has No Prior Convictions

Saed has no prior convictions.

[30]

The Likelihood of Saed Reoffending

Because Saed has demonstrated real remorse, is of good character, and has no prior convictions, I find that the likelihood that Saed will reoffend to be negligible.

[31]

The Offence Could Have Been Prosecuted in the Local Court

It is well established that the fact that an offence could have been dealt with in a court with a lower jurisdictional limit is an available circumstance to be taken into account in the sentencing exercise (Harris v Harrison [2014] NSWCCA 84; (2014) 86 NSWLR 422 at [92]-[93] citing R v Crombie [1999] NSWCCA 297; R v Doan [2000] NSWCCA 317; (2000) 50 NSWLR 115).
While not traversing the prosecutorial discretion of the Council, there is nothing about the commission of this offence that rendered it inappropriate to be prosecuted in the Local Court.

[32]

Deterrence, Retribution and Denunciation

The Court is required to take into account both specific and general deterrence (Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 at 569 per Brennan J).
The penalty imposed by the Court must serve as a general deterrent (Axer at 359; Camilleri's Stock Feeds at 701; and Bentley at [139] and see s 3A(b) of the CSPA). In Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278 Preston J discussed general deterrence in the context of sentencing for environmental crime as follows (at [65]-[68]). Without repetition, these principles have been applied in the present case.
The Court accepts that embedded in the determination of the appropriate sentence to be imposed on Saed must be an element of general deterrence to ensure that persons engaged as gardeners do not cut down trees absent obtaining all necessary approvals to do so.
In relation to specific deterrence (s 3A(b) of the CSPA), the Council submitted that specific deterrence is a relevant factor because Saed continues to run a gardening and maintenance business. However, the Council proffered no evidence to the Court to establish that Saed in fact continues to run this business post the commission of the offence. I am not satisfied beyond reasonable doubt that specific deterrence is warranted in this case.
Finally, the Court must impose a sentence that achieves the purposes of denouncing the conduct the subject of the offence and makes Saed accountable for his actions (Mehedin Abdul-Rahman at [107]).

[33]

Consistency in Sentencing

The task of the sentencing court is to seek even-handedness in the imposition of a sentence (R v Oliver (1980) 7 A Crim R 174 at 177 and R v Visconti [1982] 2 NSWLR 104 at 107). However, care must be taken in achieving consistency. There is always difficulty comparing the penalty in one case with that in another because of the wide divergence of facts and circumstances in each case (Axer at [365]). The sentence imposed in a single case does not demonstrate the limits of a sentencing court's discretion (Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at 312 and Environment Protection Authority v Barnes [2006] NSWCCA 246 at [79]).
The Council relied on the following comparable cases all relating to the unauthorised removal of trees: 1. in Chief Executive, Office of Environment and Heritage v Douglas Brian Reitano (No 2) [2019] NSWLEC 39, a defendant was sentenced for cutting down 20 trees and removing them from a national park for commercial profit contrary to s 156A(1)(b) of the National Parks and Wildlife Act 1974. The Court found that the harm was at the low end of the medium objective seriousness range. The defendant knew that his actions were illegal. The commission of the offence caused actual harm to the environment and to threatened species. The Court imposed a penalty of $30,000, in light of the defendant's failure to show remorse and his limited means to pay a fine; 2. native vegetation was cleared without a development consent in the case of Bega Valley Shire Council v Williams [2018] NSWLEC 124. Williams committed an offence under s 76A(1)(a) of the EPAA when he cleared native vegetation and used herbicide in a nature reserve without a permit, causing actual harm to an area of 250 m2. The Court imposed a monetary penalty of $5,200, applying a discount of 25% for an early guilty plea and other mitigating factors, including the defendant's remorse. He was unlikely to reoffend; 3. in Liu, Liu had engaged a tree removalist to cut down two trees protected by the Hunters Hill Local Environmental Plan 2012 located on land adjacent to her property. Liu had previously enquired with Council regarding the removal of the trees. The Court found her conduct to be reckless. Liu agreed to a remedial order and was fined $48,000 (including a 25% discount for an early plea of guilty); 4. the defendant contracted a tree removalist to cut down 13 trees on his property in Carter contrary to s 125(1) of the EPAA. The Court found that the defendant had acted recklessly because he was aware that tree removal works required permission from the Council. The commission of the offence occasioned actual harm to the environment. The Court, taking into account the defendant's early plea of guilty, good character and demonstrated remorse, fined the defendant $45,000; 5. in Ku-ring-gai Council v Edgar [2017] NSWLEC 49, a tree lopping contractor pleaded guilty to an offence against s 125(1) of the EPAA. The defendant had been instructed to remove 74 trees by the owner of the land but took no steps to satisfy himself as to whether all necessary approvals had been obtained to carry out the works. The trees were subject to a tree preservation order. The defendant was fined $16,000 having regard to the defendant's limited financial means; 6. Scahill was sentenced for the removal of two trees without a development consent in contravention of s 125(1) of the EPAA in Scahill. Scahill was an arborist and had been engaged to remove two trees that formed part of an EEC. The Court held that the commission of the offence caused moderately serious harm because of the removal of part of the EEC and the degradation to the habitat of listed species. Furthermore, the Court held that Scahill acted recklessly and for financial profit. The Court weighed the objective seriousness of the commission of the offence against Scahill's early plea of guilty, his good character and his lack of prior convictions. He was fined $11,000; 7. in Council of Camden v Poyntz [2007] NSWLEC 439, a defendant was sentenced for clearing 13 trees without development consent in breach of the Camden Local Environmental Plan No 48. The Court held that the commission of the offence caused actual environmental harm. However, the Court recognised that the defendant had been motivated by concern for the safety of his children, and that he had been careless in not seeking consent from Council for the removal of the trees. The Court imposed a monetary penalty of $3,500 and ordered a bushland restoration plan pursuant to s 126(2) of the EPAA; 8. in Georges River Council v WK Strong Pty Ltd; Georges River Council v Awada [2019] NSWLEC 97, the defendants engaged contractors to remove branches from two trees without development consent, and failed to maintain a tree protection zone for a third tree and failed to successfully transplant a fourth tree in the course of building a dual occupancy residence, contrary to an existing development consent. Preston J held that the harm occasioned by the commission of the offences was moderate and that the defendants should have taken practical measures to ensure that they had obtained all necessary approvals and that they complied with the relevant development consent. The Court took into account the defendants' lack of prior convictions, their good character and their early pleas of guilty, and fined the defendants a total of $95,000 (see also the cases helpfully summarised by the Court at [76]); 9. three trees were removed absent development consent in Willoughby City Council v Rahmani [2017] NSWLEC 166. The Court held that the commission of the offences caused actual environmental harm because the trees formed part of a critically endangered ecological community. However, the Court accepted that Rahmani had mistakenly believed that the trees could be removed without development consent. The Court further took into account Rahmani's early guilty plea and his good character, and applied a discount of 33% to impose a penalty of $60,000; and 10. in Sydney Trees Excavation and Demolition, the defendant removed 21 trees in breach of a development consent and failed to erect tree protection barriers prior to undertaking demolition works. The Court found that the offences were committed recklessly and that the extent of the environmental harm was low to moderate. The offences were held to be of low to moderate objective seriousness. The Court also considered various mitigating factors including, the defendant's lack of prior convictions, its early guilty plea and its expression of remorse. The Court imposed a penalty of $55,000 (after a 25% discount).

[34]

Financial Means of Saed

Section 6 of the Fines Act 1996 provides that: 6 Consideration of accused's means to pay In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount.
In Environment Protection Authority v Albiston [2020] NSWLEC 80, the Court considered whether the evidence was sufficient to demonstrate that the defendant had no capacity to pay any likely fine. The Court held that (at [184]): 184 The evidence adduced by Mr Albiston is incomplete and does not give a comprehensive picture of his financial position. I do not consider that Mr Albiston has discharged his onus of proving that he is unable to pay whatever monetary penalty that the Court is likely to impose.
Saed submitted that he had limited capacity to pay any monetary penalty likely to be imposed upon him by this Court. In his second affidavit he relevantly stated as follows: 3 I don't own any property. 4 I don't own a motor vehicle. 5 I have a personal bank account at the Commonwealth Bank of Australia which currently has $500.00. 6 I was on Centrelink benefit. … 9 I wasn't able to save any of this income I have to pay $365.00 per week rent plus all bills and food. 10 I have given my financial records to an accountant to prepare my tax return for the last two years. 11 I have no capacity to pay any fine.
Critically, however, Saed did not provide any documentary evidence to verify these claims (T19:46).
The Council submitted that Saed had not provided sufficient evidence to prove that on the balance of probabilities he does not have capacity to pay a monetary penalty. The Council also noted that Saed's affidavit disclosed that he had provided his financial records to his accountant, suggesting that his financial records could have been provided to the Court (T13:4-8). I agree.
In my view, Saed has failed to prove on the balance of probabilities the circumstances that he outlined in his affidavit going to his impecuniosity. He has, in my opinion, failed to discharge his onus of proving that he is unable to pay whatever monetary penalty that the Court is likely to impose upon him.

[35]

Other Considerations

Section 21A(1)(c) confers upon the Court broad discretion to take into account "any other or subjective factor that affects the relative seriousness of the offence".
I therefore have regard to the fact that Saed left school at 16; is a refugee from Iran who spent time detained on Christmas Island; speaks limited English; and suffers from a number of mental health illnesses for which he is receiving ongoing treatment.

[36]

Costs

The Court must take into account any costs order likely to be made in determining the appropriate penalty to be imposed (Harris at [100] and Barnes at [78] and Environment Protection Authority v Causmag Ore Company Pty Ltd [2015] NSWLEC 58 at [123]). However, an order for costs does not result in a reduction in any monetary penalty imposed to an amount lower than that suggested by the general pattern of sentencing for the relevant offence (Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 at [50]).
The Council sought an order for payment of its professional costs under ss 257B and 257G of the Criminal Procedure Act 1986. I find that it is appropriate to make such an order.

[37]

The Council Seeks a Remedial Order

Pursuant to s 9.56(2A) and (3) of the EPAA the Court is empowered to make a remediation order requiring Saed to undertake weed removal, plant new trees and install fauna habitat boxes, in conformity with the remediation proposed in the Abel Report.
The parties have agreed to the terms of a remediation order in the form set out at annexure A.
In all of the circumstances, I find it appropriate to make such an order. The making of the remediation order proposed by the Council and not opposed by Saed will go some way to mitigate the harm caused to the environment by the commission of the offence.

[38]

Appropriate Sentence

Having regard to the objective seriousness of the offence and the mitigating subjective factors of Saed, together with the penalties imposed in the relevant comparable cases, I find that the imposition of a fine of $25,000 is warranted for the commission of the offence.
The penalty must be discounted by 25% for the utilitarian value of Saed's early guilty plea resulting in the imposition of a monetary penalty of $18,750.
This brings the total penalty to $18,750.
It should be noted that this monetary penalty reflects the significant obligations and costs imposed by the remediation order which will require Saed to, among other things, pay for a professional ecologist and certified contractor to undertake remediation works and their maintenance on the land over six years.

[39]

Orders

In conformity with the reasons given above, the Court makes the following orders: Proceeding 2021/131214 (1) Hadi Saed is convicted as charged; (2) Hadi Saed is fined the sum of $18,750; (3) pursuant to ss 9.56(2A) and 9.56(3) of the Environmental Planning and Assessment Act 1979, Hadi Saed is to commence the works described at annexure A within three (3) months of the date of these orders; (4) pursuant to s 257B of the Criminal Procedure Act 1986, Hadi Saed is to pay the Hawkesbury City Council's professional costs as determined under s 257G of that Act; and (5) the exhibits are to be returned.

[40]

Annexure A - Remedial Order Pursuant to s 9.56(2A) and (3) of the Environmental Planning and Assessment Act 1979, Hadi Saed is to within three (3) months of the date of these orders: 1. undertake weed removal in accordance with section 5.1 of the Site condition report and Vegetation Management Plan for 57 Prentis Land, Ebenezer prepared by Abel Ecology, dated 20 November 2019 ("the Abel Report"); 2. install 38 fauna habitat boxes in accordance with section 5.2 of the Abel Report; and 3. plant 57 Eucalyptus punctates trees in accordance with section 5.3 of the Abel Report.

[41]

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. Decision last updated: 01 April 2022

(1993) 113 LGERA 357

At a glance

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