Ku-ring-gai Council v Edgar

Land and Environment Court (NSW)|2017-04-27|Before: Moore J, Mr J

TABLE OF CONTENTS Introduction Mr Edgar's plea of guilty The sentencing framework The legislative provisions The maximum penalty Aggravating factors Mitigating subjective factors Introduction Prior convictions (s 21A(3)(e)) Mr Edgar's character (s 21A(3)(f)). Contrition and remorse (s 21A(3)(i)) Entry of the guilty plea (s 21A(3)(k)) Cooperation with the Prosecutor (s 21A(3)(m)) Deterrence Introduction Specific deterrence General deterrence The sentencing process Mr Edgar's financial capacity Conclusion Orders

Mr Edgar's plea of guilty

On 9 December 2016, Mr Durant, Mr Edgar's solicitor, entered a plea of guilty on Mr Edgar's behalf. This plea was entered before Robson J as the List Judge on that date. There are two matters to be observed concerning Mr Edgar's guilty plea.
First, I am satisfied, on the basis of the Statement of Agreed Facts and the documents (before-and-after air photos; copy of the TPO; and a copy of the Degotardi Smith & Partners' survey), that the guilty plea entered by Mr Edgar is one properly made and appropriately founded on the facts supporting the offence charged. I am, therefore, satisfied that it is appropriate to convict Mr Edgar of the offence against s 125(1) of the EP&A Act with which he has been charged.
Second, critical to this sentencing process, it is accepted by the Prosecutor that, for the purposes of s 22 of the Crimes (Sentencing Procedure) Act 1999 (Sentencing Procedure Act), that Mr Edgar's plea of guilty was entered at the earliest possible opportunity. The consequences of this, for the sentencing process, are later expressly dealt with.

The legislative provisions

A number of provisions of the Sentencing Procedure Act are relevant, as is one provision in the Fines Act 1996 (the Fines Act).
The first relevant provision in the Sentencing Procedure Act is s 3A Purposes of Sentencing. 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 provision that is relevant is s 10, a provision which Mr Durant has submitted should be availed of by me to deal with Mr Edgar. This 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) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years, (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. (2) An order referred to in subsection (1) (b) may be made if the court is satisfied: (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to release the person on a good behaviour bond. (2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person. (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. (4) ... (5) ...
The third provision is s 21A Aggravating, Mitigating and Other Factors in Sentencing. It is not necessary, at this point, to set out the totality of this provision, but it will be necessary to deal with the relevant elements of it in my subsequent sentencing analysis.
The final provision of the Sentencing Procedure Act that is relevant is s 22, a provision that requires me to take into account Mr Edgar's guilty plea. This provision is in the following terms: 22 Guilty plea to be taken into account (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, (d) 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) When passing sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, and make a record of, its reasons for not doing so. (3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions. (4) The failure of a court to comply with this section does not invalidate any sentence imposed by the court.
The final relevant statutory provision is that contained in s 6 of the Fines Act. This provision is in the following terms: 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.
Portions of Mr Edgar's affidavits of 15 February and 24 April 2017 addressed matters relevant to my consideration of this provision of the Fines Act. Similarly, elements of the short cross-examination of Mr Edgar by the Prosecutor, as well as the Prosecutor's written and oral submissions, dealt with matters relevant to my consideration of this statutory provision.

The maximum penalty

Although the penalties and penalty structure for offences against the EP&A Act have been amended (with the changed penalties and structure commencing on 31 July 2015), the offence with which Mr Edgar has been charged was committed prior to the operative date of the new structure and is, thus, to be dealt with under the earlier operative provisions (see City of Sydney v Adams [2015] NSWLEC 206 per Preston CJ).
The maximum penalty applicable to the conduct for which Mr Edgar has been charged, as at the time of its occurrence, was $1,100,000. The maximum penalty reflects a public expression by the Parliament of the seriousness of the offence charged (Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698).

Aggravating factors

The Sentencing Procedure Act provision in s 21A(2) earlier noted requires me, in s 21A(2), to consider whether there are any aggravating factors requiring to be taken into consideration. The two potentially relevant aggravating factors (contained in s 21A(2)(g) and (o)) require my consideration of whether: 1. The harm to the environment caused by Mr Edgar's unlawful activities was substantial or not. The Prosecutor submitted, in his written outline of submissions, that I should conclude that the harm to the environment was substantial and thus a factor of aggravation; and 2. The offending conduct was carried out for financial gain.
The Prosecutor wrote: There was harm to the environment which was substantial within the meaning of s 21A(2)(g). Seventy-four trees protected under the Tree Preservation Order (the TPO) were removed. The works impacted on an EEC and habitats for a number of threatened species listed under the Threatened Species Conservation Act 1995 (the TSC Act). The damage will take a further 3-5 years to recover, provided weeds are managed. The works did not cross the threshold of having a significant impact within the meaning of the TSC Act.
In the course of his written and oral submissions, the Prosecutor took me to a limited range of cases which were relied upon for purposes of possible comparability as to circumstances and penalty. It is unnecessary to traverse the range of those cases, as I am satisfied that one of them, Pittwater Council v Scahill (2009) 165 LGERA 289; [2009] NSWLEC 12, a decision of Preston CJ, provides sufficient comparability to be relevant on a range of bases. The utility of Scahill includes providing assistance in whether I should regard Mr Edgar's conduct, under the circumstances, as causing substantial environmental harm and thus a finding of an aggravating factor for the purposes of s 21A(2)(g) - see [40] below.
Next, s 21A(2)(o) makes it clear that the commission of an offence for financial gain is also to be regarded as a factor of aggravation to be taken into account in determining the appropriate sentence for the offence.
In this regard, as earlier noted, Mr Chia paid Mr Edgar $16,000 for the removal of these trees. As a consequence, it is to be observed that Mr Edgar committed the offence for financial gain and that this is to be taken as an aggravating factor.

Introduction

The Sentencing Procedure Act provision in s 21A requires me, by s 21A(3), to consider whether there are any relevant, mitigating factors requiring to be taken into consideration. A range of matters may require consideration for this assessment. I turn to deal with those that are potentially engaged.

Prior convictions (s 21A(3)(e))

Mr Edgar has no prior convictions for environmental offences and this is a factor weighing in his favour.

Mr Edgar's character (s 21A(3)(f))

No character evidence has been provided on behalf of Mr Edgar and, thus, this factor plays no part in my sentencing consideration.

Contrition and remorse (s 21A(3)(i))

In his affidavit evidence, Mr Edgar has expressed his remorse for his unlawful conduct. The Prosecutor does not question that this is reflective of Mr Edgar's genuine position.

Entry of the guilty plea (s 21A(3)(k))

The Prosecutor accepts that Mr Edgar entered a plea of guilty at the earliest appropriate opportunity and that, as a consequence, this plea has had significant utilitarian value entitling Mr Edgar to the maximum discount permissible of 25% of the penalty that would otherwise be appropriate to be imposed (R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 383).

Cooperation with the Prosecutor (s 21A(3)(m))

The Prosecutor accepts that Mr Edgar has cooperated, fully and appropriately, with the Prosecutor. This cooperation has not merely been in the making of admissions and settlement of a Statement of Agreed Facts, but also in the providing of a statement of the evidence that Mr Edgar would propose to give in the prosecution of Mr Chia for the activities that Mr Edgar has undertaken on Mr Chia's behalf and at his direction.

Introduction

I have earlier set out the terms of s 3A Purposes of Sentencing of the Sentencing Procedure Act. It provides, in s 3A(b), that one of the purposes to be achieved by sentencing an offender is "to prevent crime by deterring the offender and other persons from committing similar offences". I therefore turn to consider the matters of specific deterrence for Mr Edgar and that of broader, general deterrence.

Specific deterrence

Mr Edgar now acknowledges that he should not have accepted, unquestioningly, Mr Chia's assurance that he had all necessary permits to remove the trees and, additionally, had consent from the Golf Club (as owner of portion of the land where the trees were located) and the Council (as the trustee of the reserve). He should have independently satisfied himself (either by sighting appropriate documents or by making direct enquiries) that that which Mr Chia had asserted was founded in fact.
Mr Edgar has run his modest tree-lopping enterprise for a number of years and ought to have been aware of the necessity to verify that the necessary permits and consent had been given for the activities he proposed to undertake, rather than merely relying upon the assertion of a landholder who wished to have the vegetation removed.
It is, therefore, necessary to reinforce Mr Edgar's understanding of this requirement that there be an element of specific deterrence in the sentence to be imposed.

General deterrence

It is also necessary to send a broader message of the importance of upholding the integrity of the planning system, generally, and of the TPO system (Mosman Municipal Council v Menai Excavations Pty Limited (2002) 122 LGERA 89; [2002] NSWLEC 132 at [35]). Such reinforcement of the necessity to obtain necessary permits and consent is not only to be directed to others who have tree-lopping businesses, but also to the broader public who might contemplate commissioning such contractors to undertake tree- and/or vegetation-clearing activities.

The sentencing process

The appropriate process to be undertaken in sentencing Mr Edgar is one which requires me to perform an instinctive synthesis of all relevant factors, objective and subjective, in order to determine what might be an appropriate starting penalty to punish Mr Edgar's offending conduct (Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25). This instinctive synthesis requires me to have regard to whereabouts within a range of seriousness the offending conduct should be regarded as falling, having regard to the maximum penalty of $1,100,000 for such offences.
Camilleri's Stock Feeds (at [698]) confirmed that: The task of a court is to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the scale of penalty set by the legislature from zero to the maximum.
The upper limit for the range within which the sentence for each offence falls must not exceed that which is proportionate to the gravity of the offence in light of its objective circumstances (Veen v The Queen (No 2) 164 CLR 465; [1988] HCA 14). The lower limit is fixed to permit allowance for subjective factors, as those relevant to the offender cannot produce a sentence that fails to reflect the offences' objective seriousness.
Consistent with this, it is necessary to categorise the objective seriousness of the behaviour constituting the offence, in these proceedings, as falling somewhere within a range between the "least bad case" and the "worst category" of such conduct.
I have earlier noted that s 21A(2)(g) of the Sentencing Procedure Act requires consideration of whether the harm occasioned by the cutting down of the 74 trees was substantial or not. This question of objective seriousness is engaged in these proceedings, not only because the Prosecutor submits that I should find that the harm was substantial and that, as a consequence, a factor of aggravation is brought into play in the sentencing assessment, but because, to the complete converse of this submission, Mr Durant has submitted that it is appropriate for me to consider the exercise of the discretion given by s 10 of the Sentencing Procedure Act and not impose any penalty on Mr Edgar. It is appropriate that, in consideration of the objective seriousness of the offending conduct to which Mr Edgar has pleaded guilty, that I deal with both these propositions together.
As was observed by Preston CJ in Scahill at [56], the consequence of unlawful removal of trees is the removal of the appropriate evaluative process made available by protective regimes - here, the process set by the TPO. The defendant's failure to apply for and to obtain development consent prior to cutting down the trees undermined this legislative objective. The process of making an application would have enabled a careful evaluation of the trees; their value, including their ecological and amenity value in the landscape; their health; and any potential risk posed by them to life or property.
First, I address the question of whether it would be appropriate to deal with the submission made by the prosecution as to whether or not the harm to the environment should be regarded as substantial. Although each case must be considered on the facts and circumstances engaged for consideration, a useful starting point can be found in the summation by Preston CJ in Scahill at [68], where his Honour wrote: 68. Having regard to the above matters, I find the commission of the offence caused actual environmental harm of medium seriousness. Such harm can be considered substantial and an aggravating factor to be taken into account in determining an appropriate sentence: see s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999.
As can be seen, his Honour concluded that the offending conduct was appropriate to be classified as being "environmental harm of medium seriousness" and that this characterisation, in turn, led to the conclusion that the environmental harm should be regarded as substantial and thus attracting engagement of s 21A(2)(g) of the Sentencing Procedure Act.
In this case, it seems to me that there are both quantitative and qualitative elements requiring consideration.
I turn, first, to the quantitative matters. To start, it is to be observed that the number of trees (as earlier defined and noted) removed by Mr Edgar's activities were 74 and only one of those 74 was on the Chias' property. Second, the Nearmap air photos attached to the Statement of Agreed Facts, showing the extent of the canopy cover shortly before the tree removal and, in a second air photo, shortly after the tree removal, makes it clear that the extent of canopy removal was significant.
This is also able to be seen from the location of the stumps of the trees identified in the Statement of Agreed Facts, when compared by stump number from [11] of that statement and the stump numbers recorded on the survey prepared by Degotardi Smith & Partners for the Council.
The five-page list entitled "TPO Breach List of Species Removed from Site 53 Carnarvon Road Roseville" (Exhibit C to the Statement of Agreed Facts) makes it clear that many of the trees removed by Mr Edgar were of significantly greater dimension than the minimum necessary to fall under the protective umbrella of the TPO.
In addition, one of the contemporary photographs attached to Mr Edgar's second affidavit shows a stump of one of the removed trees with that stump being, self-evidently, of significantly greater sectional size than the minimum required to qualify as a tree for the purposes of mandated protection pursuant to the TPO. This stump, in combination with the extent of the individual canopies able to be discerned from the air photo prior to Mr Edgar's activities, also makes it clear that more than one substantial tree was removed as part of the tree-cutting activities.
As a consequence, I am satisfied that the approach taken by Preston CJ in Scahill at [68], as reproduced above, is appropriate to be adopted by me in these proceedings to the same conclusion enunciated by his Honour.

Mr Edgar's financial capacity

I have earlier set out the terms of s 6 of the Fines Act, a provision that invests me with discretion to take into account Mr Edgar's financial circumstances in determining what would be an appropriate penalty to impose.
However, before turning to consider Mr Edgar's subjective financial circumstances, it is also appropriate to note that the Prosecutor has sought an order that Mr Edgar pay the Prosecutor's costs, an ordinarily appropriate order to make, and an approach, in these circumstances, from which there is no valid reason to depart. The estimate provided to me of the Prosecutor's costs (excluding investigation costs - as potential liability for such costs is not relevantly applicable) is of the order of $60,000. The extent to which a convicted person will be liable for the Prosecutor's costs is a matter to be taken into account when determining the appropriate penalty otherwise to be imposed (EPA v Barnes [2006] NSWCCA 246).
Mr Edgar is a married man with three young children. His wife is Malaysian and she resides, with their children, in Sarawak where she has the benefit of support of extended family and a significantly lower cost of living. It was Mr Edgar's uncontested evidence that he could not afford the cost of his family living with him in Australia and, as a consequence, he divided his time between Australia and Sarawak on a roughly equal basis.
As part of the material appended to one or other of Mr Edgar's affidavits, I have had available to me his taxation returns for the years ending 30 June 2013, 2014 and 2015. They disclose what could be described, at best, as an extremely modest taxable income derived by Mr Edgar in each of those three taxation years.
Although, on Mr Edgar's evidence, his position for the financial year ending 30 June 2016 was somewhat healthier, there could be no suggestion that Mr Edgar lives other than an economically marginal life.
In cross-examination, Mr Edgar conceded that he had not provided a copy of his taxation return for the financial year ending 30 June 2016. During closing submissions, Mr Durant informed me, on instructions, that, although that return had been lodged, Mr Edgar had not been provided with a copy of it. I do not take that assertion into account as it was not the subject of evidence from Mr Edgar himself. However, the remainder of his evidence on financial matters was, subject to the discussion below, uncontested at a broad level of generality.
Mr Edgar's affidavit evidence concerning his financial circumstances also included a number of extracts of bank statements for Mr Edgar's three accounts held with the St George Bank. Although the Prosecutor submitted that, as only one of these accounts had been disclosed in Mr Edgar's first affidavit (of February 2017), with the remaining two disclosed in his second affidavit prepared shortly before the sentencing hearing, the information disclosed should be treated with caution, as reflective of a lack of candour in his initial affidavit, I am not prepared to accept this is a conclusion appropriate to be drawn.
Such material as has been provided was provided pre-trial and there is nothing to suggest that the further material provided in Mr Edgar's second affidavit was, in any fashion, produced in response to criticism by the Prosecutor of the information contained in Mr Edgar's initial affidavit.
The Prosecutor also criticised the comparatively brief temporal snapshots of each of Mr Edgar's three bank accounts, demonstrated by the limited number of pages of his bank statements for each account annexed to his affidavits. I also do not consider that this criticism is warranted, given that that which is disclosed in the three taxation returns which are annexed, and which are covering a period of three full financial years, is completely consistent with Mr Edgar being a person of modest means operating economically marginally within society. The nature and amounts of the transactions disclosed in his banking records are also consistent with this position.
Mr Edgar owns no real property in Australia and his other assets (vehicle/equipment) are not of significant value.
There is no obvious inconsistency between the broader picture disclosed by Mr Edgar's taxation returns and his evidence concerning his income in the financial year ending 30 June 2016 and the transaction patterns disclosed in the information that has been made available concerning the operation of each of Mr Edgar's three bank accounts.
I therefore reject the submission that the information provided is not sufficient to enable me to undertake a proper consideration of whether or not to exercise the discretion given to me by s 6 of the Fines Act to consider reducing the penalty that might otherwise be imposed on Mr Edgar by having appropriate regard to his personal financial capacity to pay what might otherwise be the appropriate penalty.
I am satisfied that, after taking into account "such information regarding the means of the accused" (s 6(a) of the Fines Act) as has been provided in Mr Edgar's financial records, it is appropriate to moderate, further, the otherwise appropriate penalty to be imposed on Mr Edgar.
On the other hand, it is to be remembered, as earlier noted, that Mr Chia paid Mr Edgar the sum of $16,000 for the illegal tree (and other vegetation clearing) activity undertaken on Mr Chia's behalf. I consider that, for reasons of both specific and general deterrence, it would not be appropriate to reduce the penalty to be imposed on Mr Edgar below the amount of the monetary benefit which he received from Mr Chia for his activities.
Any amelioration of penalty resulting from consideration of Mr Edgar's personal financial circumstances, when viewed through the lens of s 6 of the Fines Act, should not result in a position where Mr Edgar is left with a positive financial benefit arising from the activities to which he has pleaded guilty (a plea which I am satisfied is well-founded).
As a consequence, even after having regard to Mr Edgar's financial circumstances as earlier discussed, I am satisfied that the minimum amount that it is appropriate to fine Mr Edgar is $16,000 and that is the penalty I propose to impose.

Conclusion

I am satisfied that Mr Edgar's conduct provides a proper basis to find that he has committed the offence to which he has entered a plea of guilty. Having regard to all the facts and circumstances of his conduct, I have concluded that the extent of the vegetation-clearing, despite the fact that there is the likelihood of a positive regrowth outcome within a further three to five years, has resulted in substantial harm to the environment, thus constituting a factor of aggravation for the purposes of s 21A(2)(g) of the Sentencing Procedure Act. The fact that Mr Edgar carried out the clearing for financial reward also constitutes a factor of aggravation (s 21A(2)(o) of the Sentencing Procedure Act).
Mr Edgar's offending conduct is to be regarded, within the broad range of consideration of such conduct, as being of moderate seriousness. As a consequence, I reject submissions made on his behalf that he should be given the advantage of the application of s 10 of the Sentencing Procedure Act.
Having undertaken the process of instinctive synthesis necessary to determine the appropriate penalty to be imposed, I have concluded that a starting fine of $45,000 would appropriately reflect the culpability of this conduct. However, I consider that this penalty should, initially, be discounted by one-third. This discount reflects Mr Edgar's relevant subjective circumstances, together with the maximum discount of 25% for Mr Edgar's entry of a plea of guilty at the earliest opportunity.
The resultant proposed $30,000 penalty, however, needs to be considered further in the context of s 6 of the Fines Act and the written and oral evidence I have concerning Mr Edgar's financial circumstances (including his economically marginal income; his extremely modest assets; and the fact that this presently results in his wife and young children needing to live apart from him in Sarawak where they are partially dependent on support from his wife's extended family).
As a second aspect of considering Mr Edgar's capacity to pay, I have also taken into account the order that is to be made that Mr Edgar is to pay the Prosecutor's costs, costs as earlier discussed that themselves will be of a not inconsequential financial burden upon him.
Although I am aware that it is possible for Mr Edgar to make application to pay his fine by instalments, nonetheless, it is appropriate that the penalty and costs order, in combination, should not impose an overwhelmingly crushing burden on Mr Edgar.
Although it remains necessary to strike a balance between Mr Edgar's financial circumstances and the need for both specific and general deterrence in imposing a penalty reflective of the importance of maintaining the integrity of the planning system, in general, and the TPO regime, in particular, I am satisfied that it is appropriate to exercise the discretion available to me pursuant to s 6 of the Fines Act further to reduce what would otherwise be the appropriate penalty to impose on Mr Edgar.
However, for the reasons earlier outlined, after having had regard to Mr Edgar's financial circumstances, it is appropriate to fine Mr Edgar the sum of $16,000, this being the amount he was paid by Mr Chia for the activities giving rise to the offence. Both specific and general deterrence mandate, in my view, that it is not appropriate to reduce Mr Edgar's penalty to any amount less than the benefit he received for carrying out his unlawful activities.

Orders

It therefore follows that the orders of the Court are: 1. Craig Maurice Edgar (the Defendant), is convicted of an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 in that, between on or about 6 October 2014 and on or about 21 October 2014, without consent he lopped and removed trees which were prohibited to be lopped and removed without such consent as the consequence of a Tree Preservation Order which applied to the trees; 2. The Defendant is fined the sum of $16,000; and 3. The Defendant is ordered to pay the Prosecutor's costs as agreed or assessed.

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: 02 May 2017

(2009) 165 LGERA 289

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