Hunters Hill Council v Lazarus‑Hall - [2022] NSWLEC 25 - NSWLEC 2022 case summary — Zoe

NSWNSWLEC

Hunters Hill Council v Lazarus‑Hall

[2022] NSWLEC 25

Land and Environment Court (NSW)|2022-03-07|Before: Moore J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2022-03-07

Before

Moore J

Catchwords

[2013] NSWLEC 51 Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd (2013) 199 LGERA 236
[2006] NSWLEC 419 Harris v Harrison [2014] NSWCCA 84 Hoare v The Queen (1989) 167 CLR 348
[2005] HCA 25 Ostrowski v Palmer (2004) 218 CLR 493
[2004] HCA 30 Plath v Rawson (2009) 170 LGERA 253

Source

Original judgment source is linked above.

Catchwords

[2013] NSWLEC 51 Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd (2013) 199 LGERA 236[2006] NSWLEC 419 Harris v Harrison [2014] NSWCCA 84 Hoare v The Queen (1989) 167 CLR 348[2005] HCA 25 Ostrowski v Palmer (2004) 218 CLR 493[2004] HCA 30 Plath v Rawson (2009) 170 LGERA 253[2009] NSWLEC 178 Re Minister for Immigration and Ethnic AffairsEx Parte Lai Qin (1997) 186 CLR 622 R v Doan (2000) 50 NSWLR[2000] NSWCCA 317 R v Olbrich (1999) 199 CLR 270[1999] HCA 54 R v O'Neill (1979) 2 NSWLR 582 R v ThomsonR v Houlton (2000) 49 NSWLR 383[2000] NSWCCA 383 Veen v The Queen (1979) 143 CLR 458[1979] HCA 7 Veen v The Queen (No 2) (1988) 164 CLR 465[1988] HCA 14 Walden v Hensler (1987) 163 CLR 561

Judgment (44 paragraphs)

[1]

[3]

The charge for sentencing

The charge to which the Defendant has pleaded guilty and is to be sentenced was that she: … did, by her servants, agents and/ or contractors, carry out development on land in contravention of s 4.2(1)(a) of the Act, being the demolition (ie. cutting down/ removal) of a tree to which cl 5.10(2)(a)(iii) of the Hunters Hill Local Environmental Plan 2012 ("HHLEP") applied without development consent, where demolition of the tree was prohibited from being demolished by the HHLEP unless development consent was obtained. Particulars The land Lot 3 in deposited plan 204677 and known as 2 Passy Avenue, Hunters Hill (the Land). The tree One Jacaranda mimosifolia (Jacaranda tree) with a height of approximately 12m (Tree). The Environmental Planning Instrument and requirement for development consent The environmental planning instrument which applied to the land was the HHLEP. The Land is within a heritage conservation area under the HHLEP. Clause 5.10(2)(a)(iii) of the HHLEP provided that development consent was required for demolishing a tree within a heritage conservation area. The demolition (cutting down/ removal) The Tree was cut down/ removed. This constitutes "demolish" within the meaning of cl 5.10(2)(a)(iii) of the HHLEP. The manner of contravention by the defendant The Defendant directed and/or authorised contractors and/ or servants to carry out works involving the demolition (cutting down/ removal) of the Tree. The persons who carried out those works did so on behalf of the Defendant. No development consent was sought from, or granted by, the Prosecutor for the demolition (cutting down/removal) of the Tree In the alternative, works involving the demolition (cutting down/ removal) of the Tree were carried out by contractors and/or servants who were subject to the control and direction of the Defendant. Further, in the alternative, the Defendant aided, abetted, counselled and/ or procured the commission of the offence by those who demolished (cut down/ removed) the Tree.
The additional orders sought by the Prosecutor as a consequence of the Defendant's guilty plea are: 3. Such orders under ss 9.56(2A) and (3) of the Act and s 245 of the Protection of the Environment Operations Act 1997 as the Court sees fit to make, including if so minded an order that the Defendant plant a new tree (or trees) of a like nature to the Tree which was cut down/ removed, maintain that tree (or trees) to a mature growth including retention of a suitably qualified arborist to supervise the planting and ongoing maintenance of the tree (or trees) and provide security for those obligations. 4. An order that the Defendant pay the Prosecutor's costs.

[5]

The Statement of Agreed Facts

On 18 November 2021, a Statement of Agreed Facts (the SOAF) was filed. It is appropriate to set out the entirety of the descriptive elements of the SOAF to understand the relevant factual context of both the Defendant's offending conduct and of the matters required to be taken into account for present sentencing purposes. I have not edited the SOAF but the references to the relevant specific location in the Bundle of Agreed Documents have remained without the reproduction of those documents.
The SOAF was in the following terms: The Charge 1. The Defendant has pleaded guilty to an offence against s 9.51 of the Environmental Planning and Assessment Act 1979 (EPA Act) of carrying out development in breach of s 4.2(1)(a) of the EPA Act, being the demolition (ie. cutting down/ removal) of a Jacaranda tree to which cl 5.10(2)(a)(iii) of the Hunters Hill Local Environmental Plan 2012 (LEP) without development consent having been obtained. 2. The tree was cut down/ removed by tree lopping contractors on the instructions of the Defendant, who paid the contractors for the work. The Land 3. The Defendant is, and was at all material times following purchase on 9 July 2019, the owner of land comprising Lot 3 DP 204677 (together with Matthew Lazarus - Hall as joint tenants), known as 2 Passy Avenue, Hunters Hill (Land). 4. Aerial photographs showing the Land and surrounding land are contained at Tab 1 of the Agreed Bundle of Documents. The Environmental Planning Instrument 5. The LEP applied to the Land at all material times. At all material times the Land was: (a) located within a conservation area; and (b) zoned R2 Low Density Residential, pursuant to the LEP. 6. The LEP is contained at Tab 2 of the Agreed Bundle of Documents. The LEP Heritage Map and Land Zoning Map are contained at Tab 3 of the Agreed Bundle of Documents: 7. The Land adjoins 4 heritage Items under the LEP, being items numbered: (a) 1425: House 'the Towers', 2-4 Woolwich Road; (b) 1352: House formerly 'Shaynoo', 6 Woolwich Road; (c) 1499: House, 8 Woolwich Road; and (d) 1500: House, 10 Woolwich Road, to the south/ south-west of the land. Development Control Plan 8. Hunters Hill Consolidated Development Control Plan 2013 (DCP) applied to the Land and surrounding land at all material times. 9. Extracts from the DCP are contained in the Agreed Bundle of Documents behind the Tabs as indicated: Tab 4: Part 1 - Introduction; Tab 5: Part 2 - Character & Heritage of the Hunters Hill Municipality; Tab 6: Part 3 - Residential Developments; Tab 7: Appendices The Tree 10. The tree the subject of the charge that was cut down/removed comprised a Jacaranda Mimosifolia (Jacaranda Tree). 11. The Jacaranda Tree was located in the back yard of the Land, adjoining the southern boundary. A site analysis plan from a development application lodged by the previous owners, which was the subject of Land and Environment Court Proceedings 2018/268293 (Wehbe v Hunters Hill Council [2018] NSWLEC 1607), showing the location of the Jacaranda Tree, is contained at Tab 8 of the Agreed Bundle of Documents. 12. Contained behind Tab 9 of the Agreed Bundle of Documents are 5 photographs of the Jacaranda Tree taken on or about 2 August 2019 from an adjoining property to the south of the Land. For the avoidance of any doubt, the photos indicate pruning to some of the Jacaranda Tree's branches, however this pruning is not the subject of the current charge. 13. The Jacaranda Tree can also be seen in the 'zoomed in' Google Maps aerial photography at Tab 10 of the Agreed Bundle of Documents. 14. Prior to being cut down/removed, the Jacaranda Tree was in good condition, being a mature free with a height of approximately 12m and spread of 12m. 15. A schedule indicating the: (a) age class; (b) height; (c) spread; (d) Diameter at Chest Height; (e) Diameter above Root Buttress; (f) Tree Protection Zone; (g) Structural Root Zone; (h) landscape amenity rating; (i) description and- comments; (j) safe Useful Life Expectancy, of the Jacaranda Tree prior to it being cut down/removed is contained at Tab 11 of the Agreed Bundle of Documents, together with definitions of the terms used in the schedule. The Defendant caused the Jacaranda Tree to be Demolished (cut down/ removed) on 12 September 2019 16. On 12 September 2019 at around 11:00am tree lopping contractors attended at the Land and met the Defendant, having previously arranged to attend the Land with the Defendant's husband Mr Matthew Lazarus - Hall. 17. The Defendant instructed the tree lopping contractors to cut down and remove the Jacaranda Tree. A conversation took place between the main tree lopping contractor and the Defendant during which words were spoken to the following effect: The Defendant: 'I want you to completely cut down the Jacaranda tree He said: 'Not a problem, it's a noxious weed' 18. The Defendant remained at the Land whilst the tree lopping contractors cut down and removed the Jacaranda Tree. The tree lopping contractors were paid in cash by the Defendant. 19. At about 3:00pm Council rangers attended at the Land following complaints from surrounding residents to the Council about the tree removal. The Jacaranda Tree had been completely cut down and removed, including having the stump ground. 20. Council Ranger John Tsiros took four photographs of the location where the Jacaranda Tree used to be prior to being cut down and removed. Contained at Tab 12 of the Agreed Bundle of Documents, and marked 1 - 4, are copies of these photos. A conversation took place between Mr Tsiros and the Defendant during which words were spoken to the following effect: John Tsiros: Was there a Jacaranda tree cut down on the property? Defendant: People did come and cut down a tree in the back yard at around 11:00am. John Tsiros: Who were they? Defendant: I don't know the company or have any details of the people that came out, my husband organised it, his name is Matthew Hall, he is not at home. John Tsiros: Permission and a permit was needed before the Jacaranda tree could be cut down. Defendant: I wasn't aware of this and the tree cutters didn't tell me any of this. 21. A photograph taken from adjoining land to the south of the Land taken following the cutting down and removal of the Jacaranda Tree is contained at Tab 13 of the Agreed Bundle of Documents. 22. There was no development consent under the EPA Act, or any other type of approval, sought or obtained from the Council, whether by the Defendant or any other person, for the demolition (cutting down/ removal) of the Jacaranda Tree. 23. The Defendant relied upon the representations of the main tree lopper that there were no problems with completely cutting down and removing the Jacaranda Tree and that the tree was noxious weed. 24. No enquiries were made by the Defendant with the Council about the need for development consent under the EPA Act, or any other type of approval, prior to the Defendant instructing the tree lopping contractors to cut down and remove the Jacaranda Tree. 25. Enquiries with the Council would have revealed that the Jacaranda Tree was not a noxious weed in the Hunters Hill local government area and that development consent would be required to demolish (ie. cut down/ remove) the tree.

[8]

The evidence

The evidence was entirely documentary. For the Prosecutor, it comprised:

the SOAF; and
a Bundle of Agreed Documents which had been prepared by the Prosecutor. I expressed my concern, when the folder containing these documents was tendered by the Prosecutor, at the extent of the unnecessary material which had been photocopied and included in the bundle. The entirety of the LEP had been photocopied and incorporated when, at most, a few pages were necessary to provide a proper foundation for the charge to which the Defendant had pleaded guilty. The agreed bundle had been filed on 18 November 2021, some two months after the Defendant had entered her guilty plea to the charge. Similarly, although more pages were relevant for the sentencing hearing, extensive and unnecessary extracts from the Hunters Hill Development Control Plan 2013 (the DCP) were also included in the folder. I expressed my concern at this unnecessary and wasteful photocopying. As will later be seen, I have made a specific exclusionary provision in the costs order arising from these proceedings to ensure that the unnecessary photocopying does not fall as a financial burden on the Defendant.

The evidence on behalf of the Defendant comprised:

an affidavit of the Defendant deposed on 21 December 2021;
an affidavit of her husband, Mr Matthew Lazarus‑Hall, also deposed on 21 December 2021;
an affidavit deposed on 21 December 2021 of Mr Peter Kokkoris, the plumber engaged by the Defendant to undertake works at the Defendant's home to clear tree roots from the Defendant's domestic sewer line connecting to the Sydney Water sewer main servicing the portion of the suburb in which the Defendant's residence is located;
four references attesting to the Defendant's good character. These references were from: 1. Lisa Parrett; 2. Sandro and Natalie Furani; 3. Tony Labozetta; and 4. Theodore Iuliano;
a certificate from Dr Donald Munro. The certificate addressed, relevantly, the Defendant's health issues evidenced at the time of her consultation with the doctor on 16 June 2019, a period coinciding with the Defendant's offending conduct in ordering the removal of the tree; and
finally, a bundle of photographs and a location plan depicting plantings on the site undertaken since the Defendant's offending conduct.

None of those who provided the evidence on behalf of the Defendant were required for cross‑examination.
As a consequence of the Defendant's plea of "guilty" and her agreement to the SOAF and the Bundle of Agreed Documents, it was unnecessary for affidavits deposed by council staff, or folders of material exhibited to them, to be entered into evidence for the purposes of this sentencing hearing. In making that observation, it is not to be taken as a suggestion that any of the Council's potential affidavit and exhibited documentary evidence was prepared and photocopied unnecessarily.

[10]

The Environmental Planning and Assessment Act 1979

The provision of the EPA Act creating the offence for which the Defendant has been charged is one in general terms. It applies because the failure to obtain the consent of the Prosecutor prior to the removal of the tree constitutes a breach of the EPA Act. The offence creating provision is in the following terms: 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.
The Prosecutor alleged the Defendant had committed a Tier 1 monetary offence, thus rendering relevant the provision of the EPA Act addressing such offences. This provision is in the following terms: 9.52 Maximum penalty - Tier 1 (1) If Tier 1 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 (subject to subsection (2)) liable to a penalty not exceeding - (a) in the case of a corporation - (i) $5 million, and (ii) for a continuing offence - a further $50,000 for each day the offence continues, or (b) in the case of an individual - (i) $1 million, and (ii) for a continuing offence - a further $10,000 for each day the offence continues. (2) A Tier 1 maximum monetary penalty applies only if the prosecution establishes (to the criminal standard of proof) - (a) that the offence was committed intentionally, and (b) that the offence - (i) caused or was likely to cause significant harm to the environment, or (ii) caused the death of or serious injury or illness to a person. For the Tier 1 maximum monetary penalty to apply, the court attendance notice or application commencing the proceedings must allege that those factors apply to the commission of the offence. (3) If a Tier 1 maximum monetary penalty is specified in this Act but does not apply because of subsection (2), then a Tier 2 maximum penalty applies instead. (4) If a period of imprisonment is also specified, the person is also liable to imprisonment not exceeding the period so specified.
The next provision of the EPA Act, which is relevant, is: 9.53 Maximum penalty - Tier 2 (1) If Tier 2 is specified as the maximum 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 penalty not exceeding - (a) in the case of a corporation - (i) $2 million, and (ii) for a continuing offence - a further $20,000 for each day the offence continues, or (b) in the case of an individual - (i) $500,000, and (ii) for a continuing offence - a further $5,000 for each day the offence continues. (2) If a period of imprisonment is also specified, the person is also liable to imprisonment not exceeding the period so specified.
The final relevant provision of the EPA Act is s 9.56, a provision which: 1. imports the additional order making powers contained in Pt 8.3 of the Protection of the Environment Operations Act 1997 (the POEO Act) as incorporated provisions of the EPA Act; and 2. permits the making of a replacement planting order.
This provision, relevantly, is in the following terms: 9.56 Additional provisions relating to penalties (1), (2) (Repealed) (2A) Part 8.3 of the Protection of the Environment Operations Act 1997 (Court orders in connection with offences) applies to an offence against this Act or the regulations in the same way as it applies to an offence against that Act or the regulations under that Act, but only in relation to proceedings before the Court and subject to any modifications prescribed by the regulations under this Act. (3) Where a person is guilty of an offence involving the destruction of or damage to a tree or vegetation, the court dealing with the offence may, in addition to or in substitution for any pecuniary penalty imposed or liable to be imposed, direct that person - (a) to plant new trees and vegetation and maintain those trees and vegetation to a mature growth, and (b) to provide security for the performance of any obligation imposed under paragraph (a).

[11]

The Protection of the Environment Operations Act 1997

Part 8.3 of the POEO Act contains provisions that permit the making of orders additional to any penalty imposed or costs order made in criminal proceedings. The fact that these orders are additional and not in substitution for the imposition of a penalty (if appropriate) under the offence‑creating legislation was recently made clear by the decision of the Court of Criminal Appeal in Budvalt Pty Ltd v Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2022] NSWCCA 9.
For present purposes, given the Defendant's agreement with the Prosecutor concerning the planting of a replacement tree and the conclusion I have reached that the Defendant should make an appropriate financial contribution for the carrying out of environmental works, it is only necessary to quote those provisions of the POEO Act that provide the statutory basis for these outcomes. Those provisions are in the following terms: 243 Operation of Part (1) Application to proved offences This Part applies where a court finds an offence against this Act or regulations proved. (2) Meaning of proved offences Without limiting the generality of subsection (1), a court finds an offence proved if - (a) …, or (b) the court makes an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 against the offender in relation to the offence (in which case the order is not a punishment for the purposes of that section). and 250 Additional orders (1) Orders The court may do any one or more of the following - (a) …, (b) …, (c) …, (d) …, (e) order the offender to pay a specified amount to the Environmental Trust established under the Environmental Trust Act 1998, or a specified organisation, for the purposes of a specified project for the restoration or enhancement of the environment or for general environmental purposes, (f) …, (g) …, (h) …. The Local Court is not authorised to make an order referred to in paragraph (c), (d), (e) or (h).

[14]

The Crimes (Sentencing Procedure) Act 1999

A number of provisions of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act) require consideration. The first of these is s 3A, the provision that sets out the objects of the Act explaining the purposes for which sentencing is undertaken. This provision is in the following terms: 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.
The second element of the Sentencing Procedure Act is s 10. This provision enables a trial court to conclude that all the necessary evidentiary facts are established to prove that a Defendant has committed the offence that has been charged but that the circumstances of the case do not warrant the formal entry of a conviction against that Defendant. In these proceedings, Ms McKelvey has submitted that it would be appropriate for me to deal with the Defendant pursuant to the terms of this provision. That submission was not opposed by the Prosecutor. My conclusion on the utilisation of this provision is later set out. The provision is in the following terms: 10 Dismissal of charges and conditional discharge of offender (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders - (a) an order directing that the relevant charge be dismissed, (b) …, (c) … (1A) ... (2) … (2A) … (2B) … (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors - (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider.
The third elements of the Sentencing Procedure Act are those contained in s 21A of that Act which are relevant to this offending conduct or to the Defendant. The provision contains, in s 21A(2), those elements which can, if proved beyond reasonable doubt, give rise to a finding that the offending conduct was carried out in circumstances of aggravation. It also contains, in s 21A(3), a range of subjective factors potentially applicable to the Defendant that require to be considered where relevant.
The relevant elements of s 21A of the Sentencing Procedure Act, potentially or actually engaged for my sentencing assessment of this Defendant, will each require separate consideration. The relevant portions of the provision are set out below: 21A Aggravating, mitigating and other factors in sentencing (1) ... (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: ... (o) the offence was committed for financial gain, (p) ... (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, (b) ..., (c) ..., (d) ..., (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), (j) ..., (k) a plea of guilty by the offender (as provided by section 22 or Division 1A), (l) ... (m) assistance by the offender to law enforcement authorities (as provided by section 23), (n) ...
The final element of the Sentencing Procedure Act engaged by these proceedings is s 22, a provision which mandates that I have positive regard to the entry by the Defendant of its guilty plea and the utilitarian value that the entry of that plea has had for the administration of justice. This provision is in the following terms: 22 Guilty plea to be taken into account for offences not dealt with on indictment (1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account: (a) the fact that the offender has pleaded guilty, and (b) when the offender pleaded guilty or indicated an intention to plead guilty, and (c) the circumstances in which the offender indicated an intention to plead guilty, and may accordingly impose a lesser penalty than it would otherwise have imposed. (1A) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence. (2) ... (3) ... (4) ... (5) …

[25]

Contrition and remorse

In Chief Executive, Office of Environment and Heritage v Ausgrid (2013) 199 LGERA 1; [2013] NSWLEC 51, at [80], Pepper J summarised the four types of action set out by Preston CJ in Waste Recycling as ones which may demonstrate genuine contrition and remorse in satisfaction of these requirements [citations excluded]: (a) first, the speed and efficiency of action rectifying the harm caused or likely to continue to be caused by the commission of the offence; (b) second, the voluntary reporting of the commission of the offence and any consequential environmental harm to the authorities; (c) third, taking action to address the cause of the offence; and (d) fourth, the personal appearance of corporate executives in court to give personal evidence of the Defendant's regret and a plan of action to avoid repetition of the offence.
Here, the Defendant has engaged with the first, third and fourth of the above elements. With respect to the first and third, the extensive plantings on the site undertaken by the Defendant, since her offending conduct was drawn to her attention, when coupled with her ready agreement to plant a replacement tree in the fashion set out in paragraph (3) of the orders at the conclusion of this decision are positive matters to be taken in her favour.
In addition, with respect to the fourth, the Defendant was present, via audio‑visual link, throughout the sentencing proceedings. Finally, on this point, in her affidavit of 21 December 2020 she said, relevantly: 61. I accept responsibility for my actions in removing the Jacaranda tree. I have been honest with Council throughout the investigation process, and have tried to work with Council to reach a resolution. 62. I acknowledge that I made a mistake and take full responsibility for my actions. I now know that I should not have relied on the tree lopper, but instead should have contacted Council in relation to whether I needed Council's consent to remove the Jacaranda. 63. I am very distraught about what has happened, and feel very humiliated when I was made aware that all my neighbours have been contacted and questioned by the investigators about the removal of our tree. I am also mortified and deeply sorry that I have committed a criminal offence. 64. I have learned from my mistake and will not remove any more trees unless or until I have obtained the necessary consent from the Council.
The above paragraphs (except for the first sentence of paragraph 63, which is irrelevant to the question of contrition and remorse) do, in fact, also indicate genuine contrition and remorse on behalf of the Defendant.

[34]

General deterrence

It is also necessary to consider the extent to which imposing a financial penalty on the Defendant for her offending conduct conveys a measure of general deterrence to those who might contemplate carrying out similar unlawful activities.
As Brennan J also said in Walden v Hensler, at 570: But when a law proscribes conduct which an ordinary person without special knowledge of the law might engage in in the honest belief that he is lawfully entitled to do so, the secondary deterrent purpose - that is, the purpose of educating both the offender and the community in the law's proscriptions so that the law will come to be known and obeyed - must be invoked to justify the imposition of a penalty for breach. In such a case, care must be taken in imposing a penalty lest the offender be made to shoulder an unfair burden of community education.
Whilst it is, clearly, not appropriate to impose a disproportionate penalty on the Defendant for her offending conduct, I am satisfied that it is appropriate to have regard to the need for an element of general deterrence in the outcome which I have determined to impose as a result of these proceedings.
The nature of the Defendant's offending conduct means there is a necessity to include an element of general deterrence in the starting penalty that I have determined, as discussed below, would be appropriate to be imposed upon the Defendant.
Although, as later explained, I have concluded that it is not appropriate to convict the Defendant of the offence with which she has been charged, nonetheless, the requirement that she make a payment for environmental works in the fashion described does make it clear, for general deterrence purposes, that undertaking offending conduct of the nature giving rise to the charge to which the Defendant has pleaded guilty will have financial consequences (even if there are appropriate reasons not to record a conviction for that offending conduct).
The consequences for this Defendant will remind those contemplating tree removal of the necessity to uphold the integrity of the planning system by checking whether consent was required prior to the removal of the tree and, if so, seeking and obtaining such consent (Hunters Hill Council v Liu [2018] NSWLEC 108 (Liu), at [58]).

[35]

The appropriate starting penalty

In determining the appropriate starting penalty for this Defendant, I must undertake the mandated process of instinctive synthesis (Markarian v R (2005) 229 CLR 357; [2005] HCA 25), having regard to all the objective factors of the offending conduct (as earlier discussed) and the subjective factors peculiar to the Defendant that temper what might otherwise be the penalty to be imposed (Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 and Veen v The Queen (No 2)).
The sentence is not to exceed what is "justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances" (Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at 354 citing Veen v The Queen (No 2)).
This process permits me to arrive at a starting sentence for the offence to which the appropriate discount is to be applied for the entry of the Defendant's guilty plea.
Although I have concluded that, as Ms McKelvey submitted and the Prosecutor did not oppose, it is appropriate to deal with the Defendant utilising s 10 of the Sentencing Procedure Act and not proceeding to convict the Defendant, for the process I am adopting, it is appropriate to determine what would have been the appropriate fine to impose on the Defendant had I proceeded to convict her.
Whilst this sentencing process must be undertaken in light of the specific facts and circumstances of the Defendant's offending conduct, nonetheless, regard must be had to such guidance as may be obtained from such other cases as might have some degree of comparability with the offending conduct to be assessed (Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd (2013) 199 LGERA 236; [2013] NSWLEC 185). This is to ensure the orders to be made are not inconsistent with the general pattern of sentencing outcomes for offences of the kind here being considered where comparable sentencing information is available.
In this regard, the Prosecutor submitted that it would be appropriate for me to have regard to eight cases where there had been prosecutions of defendants who had also been charged with removing trees without obtaining approval in circumstances where approval was required.
Of particular relevance in these circumstances, the two cases for comparable penalty assessment purposes to which the Prosecutor drew my attention were Liu (earlier cited) and Hunters Hill Council v Carter [2018] NSWLEC 84 (Carter).
The Prosecutor submitted that there were relevant comparative circumstances between the Defendant's offending conduct and those of the defendants in those cases. In Liu, I imposed a fine of $48,000 whilst, in Carter, I imposed one of $45,000.
I am satisfied that, in each of these instances, there are significant distinctions between the offending conduct and the offending conduct of the Defendant being dealt with in these proceedings. The differences arise from the fact that, in each of the comparable cases, multiple trees were removed or severely lopped. In addition, the trees were native ones indigenous to the local area. In the case for which the Defendant stands to be sentenced, only a single tree was removed and it was an exotic - a tree not indigenous to this continent, let alone to the locality.
As a consequence, I am satisfied that, on a comparative sentencing basis, the appropriate penalty to be considered for this defendant is significantly lower than those in either Liu or Carter.
Finally, I note that the Prosecutor also cited (at paragraph 70 of the written submissions) six further cases where penalties had been imposed for tree removal. However, the Prosecutor also noted that "differences with the facts in the present case may render (these six cases) ultimately less relevant for the purposes of the comparative exercise". I have carefully read each of those six decisions to which the Prosecutor referred and am satisfied that the differences are sufficient not to warrant their detailed consideration and that Liu and Carter provide the appropriate comparative starting points for this sentencing exercise.
Ms McKelvey, in her written and oral submissions, did not advance any other decisions as requiring consideration but did seek to distinguish each of them as being reflective of more serious, objectively assessed offending conduct and, generally, circumstances where the subjective factors engaged in each of the sentencing processes were not as positive as the subjective factors engaged for this Defendant in my instinctive synthesis of what might be an appropriate penalty (if I was to proceed to that step) for this Defendant.
I am satisfied that, as a general proposition, the position advanced by Ms McKelvey is appropriate to be adopted - the fact that only a single tree has been removed on the Defendant's instruction and that, although removed without seeking consent, the motive for doing so, arising from the blockage of the household effluent disposal pipe, was a motivating factor of a practical and relevantly significant factor. This is particularly so in circumstances where a degree of vindication of her motive is to be found in paragraph 14 of her husband's affidavit, where he deposed that: 14. Since the Jacaranda tree has been removed, we have not had any issues with the plumbing. and this evidence is uncontradicted.
It is also relevant that the uncontradicted evidence of Mr Kokkoris that he considered that the tree roots causing the blockage of the effluent disposal pipe from the Defendant's residence were those of the tree and that his several attempts to undertake mechanical pipe clearing to rectify this problem had been unsuccessful and that further attempts to resolve the problem using this technology ran the risk of damaging the terracotta pipes comprising the effluent disposal line.
As a consequence, I am satisfied that the appropriate starting penalty, if the financial burden to fall on the Defendant was to be imposed in such a fashion, would have been a fine of $20,000.

[36]

Prosecution was available in the Local Court

Ms McKelvey submitted that I should have regard to the fact that the Prosecutor had had the option of having this matter dealt with summarily in the Local Court and that, as a consequence, I should have regard to the far lower jurisdictional limit of the Local Court as to the extent of penalty able to be imposed on the Defendant. In support of this proposition, she cited what had been said in Harris v Harrison [2014] NSWCCA 84, by Simpson J (as her Honour then was), at [92] and [93]: 92 A matter that was not drawn to her Honour's attention, and a significant matter, is that the offence could have been prosecuted in the Local Court, where the maximum applicable monetary penalty was $22,000. It is well established that that may be a relevant sentencing consideration: R v Crombie [1999] NSWCCA 297; R v Doan [2000] NSWCCA 317; 50 NSWLR 115. 93 In Doan, Grove J, with whom Spigelman CJ and Kirby J agreed, observed that the fact that an offence could have been dealt with in a court with a lower jurisdictional limit is an available circumstances to be taken into account; the significance of the circumstance varies from case to case (at [42]).
To the extent potentially relevant, it is clear that I am to do so. However, for a better understanding of the proposition which her Honour had derived from the decision in R v Doan [2000] NSWCCA 317; (2000) 50 NSWLR 115 (Doan), it is appropriate to turn to the relevant portion of that decision to obtain a more fine-grained understanding of the proposition providing the foundation for her Honour's observation. In Doan, Grove J (Spigelman CJ and Kirby J agreeing) said, at [42]: 42 It was submitted by the Crown that these cases do not expose any reasoning underlying a principle that the availability of summary jurisdiction and lower ceiling of penalty should be a matter of mitigation. The cases reveal that the circumstance can, rather than should, be a matter of mitigation. All offenders in the relevant situation would have lost the chance of being dealt with within the restrictions applicable in the summary court and for that reason that chance should not be ignored. The significance of the loss of that chance would undoubtedly vary from case to case and in some cases it would contribute to mitigation, in others, not. I see no reason to depart from the approach taken in those cases but they are authority for the proposition that it is a matter to be taken into account and not a universal factor for reduction of sentence [emphasis added].
First, it is to be observed that all prosecutions for a breach of the statutory provision here engaged could be dealt with summarily in the Local Court. It is therefore self-evident that that position cannot be accepted as providing some universal factor of mitigation on the penalty that would otherwise be appropriate to be imposed. That is also clearly reflected in the above passage from Doan.
What is required is an examination of whether there is some basis to conclude that the particular circumstances of this prosecution are such that it might have been appropriate for the Prosecutor to contemplate commencing proceedings in the Local Court rather than in this Court.
Ms McKelvey advanced no specific submission pointing to factors which could lead me to such a conclusion.
My own examination of all of the matters set out in the Statement of Agreed Facts lead me to the conclusion that there are no obvious circumstances warranting such a conclusion. Indeed, the removal of a substantial tree which contributes to local amenity and is in a heritage conservation area militates against such consideration.

[39]

Engagement of s 10 of the Sentencing Procedure Act

As earlier noted, Ms McKelvey had submitted that it was appropriate for the Defendant to be dealt with pursuant to s 10 of the Sentencing Procedure Act by not proceeding to enter a conviction which would act as a formal adverse record for the Defendant. The Defendant is concerned that, if I was to record a conviction, that would act, potentially, as an impediment to her obtaining permanent residence with her family in the event that a further such opportunity arose in the future.
Whilst I have no evidence that such a potential outcome would arise if a further opportunity arose for her husband to further his career in that fashion, I am satisfied that the possibility that this might be the case is a matter appropriate to be taken into account (in part because of the impact of such a fear on the Defendant) when determining whether to deal with the Defendant pursuant to s 10 of the Sentencing Procedure Act.
The primary matter which militates against me doing so is the fact that the appropriate starting penalty, as earlier described, is not a trivial one, but one which properly reflects the relevant degree of the Defendant's criminal culpability.
On the other hand, as earlier indicated, the Prosecutor does not oppose the Defendant being dealt with pursuant to this statutory provision.
I have earlier noted the importation into the EPA Act of the provisions of Pt 8.3 of the POEO Act. The relevant element of these provisions, which I am satisfied is appropriate to be used, is s 250(1)(e), a provision in the following terms: 250 Additional orders (1) Orders The court may do any one or more of the following - (a) …, (b) …, (c) …, (d) …, (e) order the offender to pay a specified amount to the Environmental Trust established under the Environmental Trust Act 1998, or a specified organisation, for the purposes of a specified project for the restoration or enhancement of the environment or for general environmental purposes,
This provision is able to be invoked to require the Defendant to make a payment to be used for environmentally restorative purposes without the necessity for her to be convicted of the offence to which she has pleaded guilty. This is because of the operation of s 242(2)(b) of the POEO Act making the power to impose such an additional compensatory order in circumstances where a defendant has been given the benefit of s 10 of the Sentencing Procedure Act.
For present purposes, I am satisfied that it would be appropriate to deal with the Defendant pursuant to s 10 of the Sentencing Procedure Act without formally convicting her of the offence to which she has pleaded guilty. This arises because I am satisfied that the unknown potential raised by Ms McKelvey of a possible barrier to residence in Singapore would be a result potentially imposing a functional penalty not only on the Defendant but on the entirety of her family. As a consequence, I am satisfied that making an order of the type permitted by s 250(1)(e) of the POEO Act, requiring the Defendant to pay a sum equivalent to the fine (after discount for the Defendant's early guilty plea) for an environmental purpose, will send a sufficient message of general deterrence without the necessity for the Defendant to be convicted of the offence to which she has pleaded guilty.
During the course of the hearing, Ms McKelvey submitted that, if such an approach was to be taken by me, it would not be appropriate to make the Council the beneficiary of such an order. I enquired of the Prosecutor whether there were bushland restoration projects within the Prosecutor's local government area to which such a payment might be directed if I was to adopt such an approach. I was subsequently advised that there was no such project able to be identified immediately but that the National Trust of Australia (NSW) (the Trust) might undertake appropriate bushland restoration projects towards which such a payment might be directed.
I have subsequently enquired of the Trust whether such a payment could be directed to that body with the payment to be specified to be applied to the Trust's bushland management activities. I was advised that this could be done.
Although requiring the Defendant to make such a payment will not guarantee its application to any project in the Prosecutor's local government area, I am satisfied that the application of such a payment for bushland restoration projects through the Trust, when coupled with an order pursuant to s 9.56(3)(a) of the EPA Act, does provide an appropriate environmentally restorative and compensatory outcome responsive to the Defendant's offending conduct.
As a consequence, the orders at the conclusion of this decision will require the Defendant to pay $15,000 to the Trust, with the Trust to be advised by the Prosecutor of the intention that that money be directed to support the Trust's bushland restoration activities.
It is also appropriate to order that the Defendant provide documentary proof to the Prosecutor within 10 days of her making the payment of $15,000 to the Trust to satisfy the Prosecutor that the payment has been made.

[41]

Costs

As earlier noted, ss 257B and 257G of the Criminal Procedure Act operate to permit me to order that the Defendant is to pay the Prosecutor's costs of these proceedings.
Whilst Environment Protection Authority v Barnes (2006) NSWCCA 246 is often said (and has here been submitted for the Defendant) to provide a basis for taking the liability of a Defendant to pay a Prosecutor's costs into account when setting a penalty, a reading of that decision makes it clear that there the question arose in the context of capacity to pay. That clearly does not arise here as there is, as earlier set out, no substantive evidence of the Defendant's financial circumstances. There is, therefore, no relevant "downward pressure" to be applied to the appropriate penalties.
The Prosecutor said, at paragraph 71 of the written submissions: 71. The Prosecutor seeks its cost as agreed or assessed, presently estimated at $60,000.
During the sentencing hearing, I requested that the Prosecutor advise me of the extent to which the above‑noted costs' quantum related to the proceedings with which I was then dealing and what portion should appropriately be regarded as relating to costs of the second charge against the Defendant which had been dismissed with no order for costs or for the charge which had been laid against the Defendant's husband, a charge which was also to be dismissed in conjunction with this hearing with no order as to costs (these two positions having been advised to Pain J on 24 September 2021 when the Defendant had entered her guilty plea to the charge giving rise to these sentencing proceedings).
After seeking instructions, the Prosecutor advised me that the costs associated with the remaining charge (including the costs of the sentencing hearing) were expected to be $54,000.
The power to order the Defendant to pay the Prosecutor's costs is contained in s 257B(b) of the Criminal Procedure Act, a provision earlier noted. If there is no agreement between a prosecutor and a defendant, the quantum of costs is to be determined through the assessment process provided for in s 257G(b).
Whilst the Prosecutor's costs seem high and potentially disproportionate, I am satisfied that the only basis upon which I might impose any limitation on the Prosecutor's costs is that which arises from my earlier recorded observation concerning unnecessary photocopying in the Bundle of Agreed Documents prepared by the Prosecutor. The exclusion of portion of the Prosecutor's photocopying costs is therefore provided for in the orders finalising these proceedings.

[43]

ANNEXURE A 1 The Defendant is to: (a) retain a suitably qualified arborist, having a minimum qualification of AQF Level 5 (the qualified arborist), within 21 days of these Orders; and (b) cause one 100 litre pot sized Jacaranda Mimosifolia (Jacaranda) to be planted on the land described as Lot 3 DP 204677 and known as 2 Passy Avenue, Hunters Hill (Land) within 42 days of these Orders. The planting of the Jacaranda Tree is: (i) to be supervised by the qualified arborist; (ii) to be at a location in the back yard of the Land, along the southern boundary to the west of the metal stack and proximate to the position of the tree that was removed; and (iii) the Defendant is to notify the Prosecutor, in writing, within seven days of the planting that the planting had taken place; (c) cause the qualified arborist to inspect the planted Jacaranda and provide written recommendations to the Defendant and the Prosecutor for the ongoing management of the Jacaranda so as to ensure its longevity, health and structural integrity; (d) ensure that the contract for engagement of the qualified arborist is to require that the written recommendations in (c) are to be provided to the Defendant with seven days of the inspection; (e) provide the written recommendations in (c) to the Prosecutor within seven days of their receipt by the Defendant; and (f) carry out, or cause to be carried out, the written recommendations referred to in (c) above of the qualified arborist, under the supervision of the qualified arborist, within 28 days of receipt of the said written recommendations. 2 The requirements set out in orders 1(c) and (d) are to be repeated and complied with by the Defendant on one further occasion, with compliance required as follows: (a) the inspection and the making of written recommendations by the qualified arborist as referred to in order 1(c) (or an arborist of similar qualifications if the qualified arborist as referred to in order 1(c) is not available), are to be carried out after 1 June 2023 and before 1 July 2023, with the carrying out of the further resultant written recommendations (if any) as referred to in order 1 as repeated as required by this order to be carried out within 28 days of receipt of the said written recommendations. 3 Within 14 days of compliance with the requirements of each of order 1(f) and 2(a), the Defendant is to provide a certificate from the qualified arborist (or the arborist of similar qualifications if the qualified arborist as referred to in order 1(c) is not available) to the Prosecutor certifying that the requirements of the relevant order have been complied with. 4 In the event that the Defendant sells the land prior to the expiration of the requirements of Orders 1, 2 and/or 3 above, these orders lapse from the date of settlement of the sale. The Defendant shall however disclose these orders to any incoming purchaser.

Hunters Hill Council v Lazarus‑Hall

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Judgment (44 paragraphs)

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Cases Cited (39)