Ku-ring-gai Council v John David Chia - [2019] NSWLEC 184 - NSWLEC 2019 case summary — Zoe

NSWNSWLEC

Ku-ring-gai Council v John David Chia

[2019] NSWLEC 184

Land and Environment Court (NSW)|2019-08-19|Before: Robson J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2019-08-19

Before

Robson J

Catchwords

(2014) 205 LGERA 39 Byron Shire Council v Fletcher [2005] NSWLEC 706
(2005) 143 LGERA 155 Cameron v Eurobodalla Shire Council [2006] NSWLEC 47
(2006) 146 LGERA 349 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
(2017) 227 LGERA 290 Chief Executive, Office of Environment & Heritage v Orica Pty Ltd

Source

Original judgment source is linked above.

Catchwords

(2014) 205 LGERA 39 Byron Shire Council v Fletcher [2005] NSWLEC 706(2005) 143 LGERA 155 Cameron v Eurobodalla Shire Council [2006] NSWLEC 47(2006) 146 LGERA 349 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683(2017) 227 LGERA 290 Chief Executive, Office of Environment & Heritage v Orica Pty Ltd(2006) 148 LGERA 299 Eurobodalla Shire Council v Wheelhouse [2006] NSWLEC 98 Garrett v Williams [2006] NSWLEC 785(2006) 160 LGERA 115 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242(2006) 145 LGERA 189 Gore v RHunter v R [2010] NSWCCA 330(2010) 208 A Crim R 353 Green v RQuinn v R (2011) 244 CLR 462[1984] HCA 46 Newcastle City Council v Pepperwood Ridge Pty Ltd [2004] NSWLEC 218(2004) 132 LGERA 388 Pittwater Council v Scahill [2009] NSWLEC 12(2009) 165 LGERA 289 R v DP [2019] NSWCCA 55 R v Engert (1995) 84 A Crim R 67 R v Olbrich (1999) 199 CLR 270

Judgment (24 paragraphs)

Background

The background facts of the matter are set out in the primary judgment, and subject to a summary below, are not repeated. The following facts are relevant to the assessment of the objective seriousness of the offence.
The TPO prohibits the cutting down or injuring of any tree having a trunk diameter of 150mm or more measured at ground level or any tree of 5m or more in height, subject to certain specific exceptions. Each of the 74 trees the subject of the offence was protected by the TPO and many of them had a height exceeding 5m according to the estimates made by Ku-ring-gai Council's ('Council') Tree Management Officer, Wendy Miller.
The TPO makes provision for applications to be made to Council for the carrying out of tree works that require Council's consent. This procedure enables proposed tree works to be the subject of assessment by Council and is part of a scheme of assessment and control of development in the Ku-ring-gai municipality. In the primary judgment, I found that the tree works carried out on each of the 74 trees (73 of which were cut down and 1 of which was lopped) were carried out at Mr Chia's direction and Mr Chia paid contractors to undertake the clearing work.
In its written submissions, the prosecutor provided a summary of the trees the subject of the offence in terms that were accepted by Mr Chia as follows: 1. The site was inspected by Ms Miller and her colleagues over the course of three days on 21, 22 and 23 October 2014. During those inspections, Ms Miller and the other officers examined what was left in situ of each of the trees that had been cut down or lopped by contractors retained by Mr Chia. They photographed, assigned and affixed a number to each tree. They also identified each tree by its species and recorded its trunk diameter at ground level; 2. Subsequently, surveyors attended the site and identified on a survey plan the location of each tree stump by reference to the numerical tag the Council officers had affixed to it; 3. The 74 trees the subject of the offence are identified by Ms Miller in her affidavit of 29 September 2016 at par (71a) by reference to her own numbering of the trees. The 74 trees, which comprise a subset of the totality of trees that were cleared by the contractors, are those which Ms Miller identified as being trees which had the requisite physical dimensions and characteristics to be protected under the TPO, including by reason of having a trunk diameter equal to or greater than 150mm; 4. In identifying the 74 trees by their tree numbers at par (71a) of her affidavit, Ms Miller cross-references pars (31)-(34) of that affidavit, enabling the Court to access information such as species type of each of the 74 trees and see photographs of the remains of each tree; and 5. Basic information about the subject 74 trees that may be derived from Ms Miller's evidence includes the following: 1. each of the 74 trees was a native Australian species; 2. by far the greater number of the 74 trees were Allocasuarina littoralis ("Casuarina" or "Black She Oak") species; 3. as for the minority of the trees which were not of Allocasuarina littoralis species, they were trees of the following species: 1. Ceratopetalum apetalum ("Coachwood"); 2. Ceratopetalum gummiferum ("Christmas Bush"); 3. Banksia integrafolia; 4. Banksia serrata ("Old Man Banksia"); 5. Corymbia gummifera ("Red Bloodwood"); 6. Callicoma ("Black Wattle"); 7. Pittosporum undulatum; and 8. Angophora costata ("Sydney Redgum"); 1. the diameters of the 74 trees ranged from 150mm (e.g. the Ceratopetalum apetalum, identified as Tree No. 12) to 900mm; and 2. most of the subject 74 trees were cut down at or near ground level, but two Ceratopetalum gummiferum specimens, identified respectively as Tree No. 66 and Tree No. 67, were "topped" to a level of about 2m above ground and the Angophora costata, identified as Tree No. 112, only had some of its branches lopped, and it remained standing with a considerable canopy after the clearing works had been stopped.

[2]

Sentencing principles

The sentence imposed by the Court must reflect and be proportionate to the objective circumstances of the offence and the subjective circumstances of the offender. In sentencing Mr Chia, the Court adopts an instinctive synthesis method, requiring the identification and weighing up of all the relevant factors to arrive at an appropriate sentence.
The principles as they apply in respect of cutting down trees without requisite development consent or permission in breach of a tree preservation order made under the EPA Act have been articulated in a number of decisions of this Court, including Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 ('Scahill') at [41]-[69] and Hornsby Shire Council v Henlong Property Group Pty Ltd (No 2) [2019] NSWLEC 17 ('Henlong') at [30]-[33].
In fixing the appropriate penalty for an offence, the Court needs to consider the purposes of sentencing relevant to the offence and the offender as identified in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('Sentencing Act'). Relevant to the present matter, s 3A provides: 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, ... (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.
In addition, s 21A of the Sentencing Act identifies a number of considerations that the Court must take into account when sentencing, including aggravating factors (s 21A(2)) and mitigating factors (s 21A(3)). Of the aggravating factors listed in s 21A(2) of the Sentencing Act, most, with the exception of s 21A(2)(g) (which provides that "the injury, emotional harm, loss or damage caused by the offence was substantial"), are simply not apposite for consideration in sentencing environmental offenders. To the extent that the matters set out in these provisions are relevant to the matter before me, I have had regard to them in my consideration that follows.
The prosecutor carries the onus of proving beyond reasonable doubt any aggravating factors for the purposes of sentencing: Gore v R; Hunter v R [2010] NSWCCA 330; (2010) 208 A Crim R 353 at [27], [105] and R v Wickham [2004] NSWCCA 193 ('Wickham') at [27]. Conversely, the offender bears the onus of proving on the balance of probabilities any mitigating factors: Wickham at [27] and R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27].

[4]

Nature of the offence

The objective seriousness of the offence committed by the offender is informed by the nature of the contravened statutory provision and its position in the statutory scheme: Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 at [59] and Chief Executive of the Office of Environment and Heritage v Cory Ian Turnbull [2017] NSWLEC 140; (2017) 227 LGERA 290 ('Turnbull') at [22]. Regard should be had to the objects of the EPA Act and the contravened statutory provision, and the degree to which the offending conduct contravenes these objectives: Turnbull at [22] and Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114 ('Brummell') at [9].
The objects of the EPA Act are stated in s 5 (as it was at the material time) and provided: 5 Objects The objects of this Act are: (a) to encourage: (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment, (ii) the promotion and co-ordination of the orderly and economic use and development of land, (iii) the protection, provision and co-ordination of communication and utility services, (iv) the provision of land for public purposes, (v) the provision and co-ordination of community services and facilities, and (vi) the protection of the environment, including the protection and conservation of native animals and plants, including threatened species, populations and ecological communities, and their habitats, and (vii) ecologically sustainable development, and (viii) the provision and maintenance of affordable housing, and (b) to promote the sharing of the responsibility for environmental planning between the different levels of government in the State, and (c) to provide increased opportunity for public involvement and participation in environmental planning and assessment.
A relevant consideration for the Court in sentencing is to ensure that these objects are served and not undermined: Henlong at [37]-[40].
As is frequently stated, one of the principal means by which the objects of the EPA Act are achieved is by prohibiting the clearing of vegetation but enabling a person to be relieved of that prohibition by applying for and obtaining approval to do so. This process involves assessment of the impact of the clearing and provides a regulatory scheme for which there is a need to uphold. An offence which undermines the integrity of the regulatory scheme is objectively serious and the use of the criminal law ensures the credibility of the regulatory scheme: Brummell at [14].
As submitted by the prosecutor, the commission of the offence prevented prospective assessment of the likely impact of the proposed clearing, foreclosed Council's prerogative to decline to allow such works to be undertaken or to impose limitations or conditions thereto, and caused actual environmental harm as will be considered further below. The offence also undermined the purpose of the TPO, being to secure amenity or preserve existing amenity in the Ku-ring-gai municipality. I also note that Mr Chia's acknowledgement that taking action contrary to the TPO had the capacity to undermine the general system of planning and development control in the State, and may have been inconsistent with one or more of the objects of the EPA Act. Accordingly, I find that the conduct of Mr Chia and the consequences thereof offended against the objectives enshrined in s 5 of the EPA Act and undermined the principles that underpin the planning regime.

[5]

Maximum penalty

The maximum penalty for an offence reflects the public expression by Parliament of the seriousness of the offence: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; (1993) 82 LGERA 21 ('Camilleri's Stockfeeds') at 698. The task of the Court is to assess the relative seriousness of the offender's particular offence in relation to the worst case for which the maximum penalty is provided: Camilleri's Stockfeeds at 698.
At the time Mr Chia committed the offence, the maximum penalty was $1.1 million, a penalty which applied to both corporations and individuals. On 31 July 2015, a three tier offence regime was introduced for offences against the EPA Act and the maximum penalties were altered depending on the tier of the offence and the type of the offender (i.e. whether they were an individual or a corporation). Under the new regime, the maximum penalties for individual offenders were reduced.
While s 19(2) of the Sentencing Act states that if the penalty for an offence is reduced, the reduced penalty applies to offences committed before the commencement of the provision reducing the penalty, but does not affect any penalty imposed before its commencement, for the reasons identified in Council of the City of Sydney v Adams [2015] NSWLEC 206 at [22]-[31] by Preston CJ of LEC, this section does not apply to an offence under s 125(1) of the EPA Act. Accordingly, the maximum penalty that the Court should have regard to for present purposes is $1.1 million.
Further, I note that this approach is consistent with the approach adopted by Moore J in sentencing Craig Maurice Edgar, the contractor retained by Mr Chia who cut down the trees protected by the TPO: Ku-ring-gai Council v Edgar [2017] NSWLEC 49 ('Edgar') at [16]-[17].
Despite this, I note and accept the submission made on behalf of Mr Chia that the Court should note the evolution in community expectations manifested through Parliament's intentions evident in the revised penalty scheme, and just as an increase in the maximum penalty for an offence is an indication that sentences for the offence should be increased, the converse must follow.

[6]

Environmental harm

The harm caused by the commission of the offence is relevant in determining the objective seriousness of the offence under ss 21A(2)(g) (if the harm is substantial) and 21A(3)(a) (if the harm is not substantial) of the Sentencing Act, and the concept of harm in relation to environmental offences is broad.
In relation to environmental harm, the prosecutor relies upon the evidence of Mr Whyte summarised above, and in particular Mr Whyte's description of the vegetation, and its importance and ability to constitute habitat supporting a number of threatened fauna species. It is clear that Mr Whyte considered that the clearing would have been unlikely to have resulted in any reduction in the capacity of certain species to forage or breed, and that it was unlikely that it would have had any significant impact on threatened flora species.
As noted above, in his first affidavit, Mr Whyte opined that at the time of the site inspection, it was likely that the vegetation was regenerating and would fully recover within three to five years provided weeds were managed. In all the circumstances, Mr Whyte assessed the impact the clearing works had upon the natural environment to be low.
As also noted above, on his further inspection in March 2019, Mr Whyte noted that the significant regeneration of the trees he anticipated had not occurred and that this was principally caused by the reduction in canopy occasioned or contributed to by the clearing. Although Mr Whyte did not reconsider his earlier opinion that the impact of the clearing works on the environment was low, the prosecutor suggests that the harm caused was of longer duration than Mr Whyte had earlier predicted. The prosecutor notes that while Mr Whyte had recommended certain management measures, including weed removal works, he did not otherwise withdraw or alter the conclusions referred to in his earlier affidavit.
Mr Chia submits that the destruction of established trees otherwise protected has on its face the character of some environmental harm, however the seriousness and degree of any such harm must be assessed in context. Mr Chia says that in this case, such context includes loss of public amenity which would seem to be particularly limited in circumstances where the evidence at trial suggested that the trees were not widely used by or visible to the public, and there was capacity to remediate the area.
Mr Chia further submits that although s 126(3) of the EPA Act provided that where a person is guilty of an offence involving the destruction or damage to trees, the Court may direct the planting of new trees, the Court would take into account the fact that Mr Chia had no right to enter upon or conduct any rehabilitation works on land owned by the Golf Club, and he was expressly excluded by the Golf Club from doing so. Mr Chia notes that the affidavit of Ms Wauchope reveals that the Golf Club obtained a quote in the amount of $16,890 to undertake bush regeneration works in the affected area and Mr Chia, as a term of the Deed, agreed to pay that sum to the Golf Club for that specified purpose. Mr Chia says that that money was paid, however it appears from the evidence, including Mr Whyte's second affidavit and the absence of records of such work produced under subpoena by the Golf Club, that no such work has been done. Mr Chia submits that the sum of $16,890 should be taken into account in reducing any monetary penalty imposed, and it would be unfair to impose a penalty on the basis that the affected land has not yet fully regenerated in circumstances where that outcome was likely to be because of the conduct of others. Further, Mr Chia submits that it is relevant to observe that the owner of the Golf Club has apparently not considered any loss of amenity or environmental damage to be sufficient to warrant carrying out those works, even though it received payment for that purpose.
In response to the prosecutor's suggestion that the principal interest of Mr Chia in entering into the Deed or paying the money was self-interest in avoiding a potential civil dispute at the suit of the Golf Club, Mr Chia says that such a submission lacks an evidentiary basis and is not reasonably open to the Court.
Taking into account the whole of the evidence (including that of Mr Whyte) and Mr Chia's conduct both at the time of the commission of the offence and thereafter, I find that Mr Chia, having entered into the Deed with the Golf Club, was entitled to expect that the Golf Club would use the settlement sum of $16,890 to fund regeneration works provided for in the Deed (although I note that the Deed did not provide for works over the whole of the area cleared). While the prosecutor suggests that there is no evidence that Mr Chia has taken any steps to enforce the warranty under the Deed requiring the Golf Club to attend to the "regeneration works", I do not find this to be particularly persuasive.
On the evidence, I find that the commission of the offence remains the essential cause of the harm to the environment. While I take into account the fact that Mr Chia has entered into the Deed with the Golf Club, and that this should be considered a mitigating factor, having regard to the evidence now before the Court, including the detailed photographic evidence (comprising the aerial images both before and after the clearing and the extensive photographic evidence of the site and the individual trees cleared), I find that the commission of the offence caused actual environmental harm of medium seriousness. In reaching this conclusion, I have taken into account the number of trees removed, that the extent of canopy removed was significant, and that the size in diameter of many of the tree stumps was significantly greater in dimension than the minimum dimension protected under the TPO. I consider such harm to be substantial and an aggravating factor to be taken into account in determining the appropriate sentence.
I find beyond reasonable doubt that the commission of the offence caused substantial harm to the environment within the meaning of s 21A(2)(g) of the Sentencing Act.

[7]

State of mind

The offence against s 125(1) of the EPA Act committed by Mr Chia is a strict liability offence, and, as such, mens rea is not an element of the offence. Nevertheless, the state of mind of an offender at the time of the commission of the offence can have the effect of increasing the seriousness of the offence. A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one not so committed: Camilleri's Stock Feeds at 700 and Scahill at [69].
Mr Chia instructed the contractors to cut down the trees and clear the vegetation, and although the prosecutor did not submit that the directions were such that Mr Chia was intentionally procuring a breach of the EPA Act, given the extent of the clearing, the prosecutor says that any reasonable person in Mr Chia's position would have known that the works required the consent of Council, and it can only be inferred that Mr Chia was aware that no such consent had been obtained.
Mr Chia submits that the Court has limited evidence upon which to assess his state of mind, however the Court has already found that the most probable motivation for Mr Chia directing the clearing was to address a potential fire hazard. Mr Chia also refers to the "10/50 Vegetation Clearing Code of Practice for New South Wales" issued by the NSW Rural Fire Service and says that it is noteworthy that the law at the relevant time allowed for some removal of vegetation, including trees for fire reduction near buildings. Mr Chia contends that the evidence at trial further revealed that this law was the subject of some discussion between the contractors and Mr Chia and while those provisions did not necessarily permit the clearing of the trees in question, it would be reasonable for the Court to proceed on the basis that: the trees in question were removed to reduce the fire hazard close to Mr Chia's property; such action was permissible under the law up to a defined point and in certain circumstances (albeit not here); and it is plain that the community, through the legislature, was, to an extent, accepting and tolerant of such conduct for that purpose.
Mr Chia submits that on the evidence, there is no reason to conclude that he knew that the conduct was criminal at all, other than perhaps his denial of any knowledge which is maintained.
In Brummell at [51], Preston J noted that: A critical difference between [recklessness and negligence] is that recklessness is measured on a subjective standard (the referent being the offender) while negligence is measured on an objective standard (the referent is a hypothetical reasonable person).
While the prosecutor did not submit that Mr Chia was reckless in the commission of the offence, it seemed to suggest that Mr Chia was negligent.
As per Brummell at [53], negligence requires consideration of: …whether the risk of [the] consequence or circumstance was foreseeable to the reasonable person in the position of the offender, not whether the offender subjectively foresaw the risk: NSW Sugar Milling Cooperative Ltd v Environment Protection Authority (1992) 75 LGRA 320 at 321, 324, 325.
I consider that, viewed objectively, a reasonable person in Mr Chia's position would have known that the clearing, given its nature and extent, involving 74 trees and three separate landholdings, required consent of Council, and would have foreseen the risk that the clearing would be done otherwise than in accordance with lawful authority. In the circumstances, I find Mr Chia's conduct to be negligent to the criminal standard: Environment Protection Authority v Ampol Ltd (1993) 81 LGERA 433 at 439, and Brummell at [54].

[14]

Capacity to pay a fine

In determining the appropriate penalty, the Court is required to consider the financial means of Mr Chia to pay a fine from such information as is reasonably and practically available to the Court: s 6 of the Fines Act 1996 (NSW) ('Fines Act'). If I was satisfied that Mr Chia would be unable to pay the amount of the fine determined by the Court to be otherwise appropriate, I may reduce the amount of the fine to take into account Mr Chia's means and impecuniosity: R v Rahme (1989) 43 A Crim R 81 at 87.
The prosecutor submits that the evidence of Mr Chia's present financial position is selective and inadequate. As such, the prosecutor submits that the evidence fails to provide a proper foundation for any submission that he does not have capacity to pay a fine of the quantum that the Court might see fit to impose.
Mr Chia submits that he now presents as a man of very limited means to pay any pecuniary penalty. Mr Chia notes that he no longer owns any real property, and is in receipt of the age pension. Mr Chia submits that the Court would accept that the defence of the proceedings has already been extremely costly.
I consider that the documentary material relating to Mr Chia's financial position is of little assistance. I accept the submission of the prosecutor that while it shows that Mr Chia is presently in receipt of the aged pension, it also shows that: the Carnarvon Road property was sold in June 2017 for $2.9 million; Mr Chia and his wife purchased residential property at xxx xxx Street, Killara in April 2000 for $3 million which has not been encumbered by any mortgage since it was purchased; and in or about April 2019, after judgment was handed down in this matter, Mr and Mrs Chia (who previously owned the property as joint tenants), transferred the property to Mrs Chia, who became the sole proprietor for no monetary consideration. The prosecutor submits that in the absence of any further detail, a transfer without monetary consideration would leave Mr Chia with an equitable interest in the property and certainly a capacity to encumber it to pay a fine of much greater magnitude than that which the prosecutor would suggest would be appropriate in this matter.
Considering the other documentation relied upon to indicate Mr Chia's financial position, which includes documentation associated with companies of which Mr Chia was a director and secretary (including IBDC Advisory Services Pty Ltd, the shares of which were formally held by Mr Chia) and a copy of his 2018 tax return, and absent any material regarding the financial positions of the companies, I find that these documents are indicative only of the fact that Mr Chia relinquished his positions as director and secretary this year, and that the remaining shareholder and sole director in IBDC Advisory Services Pty Ltd is Mrs Chia.
In the circumstances, I find that the documentation is unhelpful in determining Mr Chia's capacity to pay a fine, however, I accept the submission made on his behalf that he is no longer the owner of any real property and is in receipt of the aged pension, and further, that the defence of these proceedings has undoubtedly been extremely costly.
I consider that the evidence of Mr Chia's financial circumstances available to the Court is "largely indefinite": see Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 at 353 and Bankstown City Council v Hanna [2014] NSWLEC 152; (2014) 205 LGERA 39 ('Hanna') at [181]. The evidence is insufficient to justify reducing the appropriate penalty on account of Mr Chia's financial circumstances.

[16]

Medical evidence

Mr Chia filed evidence from medical practitioners as to his physical and mental health. That evidence may be summarised as follows: 1. Mr Chia has been diagnosed with a range of long-standing medical conditions which have become more severe since December 2018; 2. Since February 2019, Mr Chia has been seeing a clinical psychologist on a weekly basis for treatment for depression. A psychological report prepared by Mr Wong dated 15 July 2019 provided detailed information relating to Mr Chia's mental state, shame, grief and paranoia, and loss. The psychological report also included information relating to Mr Chia's personal and social background and personal history, and concludes that Mr Chia is suffering from "a severe major depressive episode" and notes that he has been suicidal; 3. In or after March 2019, Mr Chia was diagnosed with likely ischaemic colitis (inflammation of the bowel caused by lack of blood supply); 4. In or after May 2019, Mr Chia was diagnosed with prostate cancer; and 5. For several years, Mr Chia has suffered from breathing difficulties, chest infections, sinusitis and bleeding.
The prosecutor notes that Mr Wong's diagnosis and assessment of Mr Chia's depression is relevant, however, submits that Mr Wong's report also includes a number of statements of a hearsay nature, and other statements which go beyond any relevant diagnosis and assessments of Mr Chia's depression. In that respect, the prosecutor says that the report should not be given any weight.
The prosecutor submits that there is no suggestion that Mr Chia's health issues were affecting him at the time of the commission of the offence and the evidence relates only to the recent state of Mr Chia's health since proceedings were commenced.
Mr Chia submits that the medical evidence provides a separate basis warranting leniency in sentencing.
Courts have developed principles to be applied when sentencing offenders suffering from mental illness, intellectual handicap or other mental problems: see Director of Public Prosecutions (DPP) (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 205 A Crim R 1 ('De La Rosa') at [177]-[178]. I do not summarise those principles except to note that the present case is not one where Mr Chia's mental state has contributed to the commission of the offence, however, it is accepted that "mental health problems" of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing: De La Rosa at [178]. Despite the criticism of the prosecutor, and subject to matters considered below, I take Mr Chia's health into account in my consideration. I consider the medical evidence further below in the context of deterrence.

[17]

Deterrence

In light of the prosecutor's submission that the likelihood of Mr Chia re-offending is very low, the prosecutor says that there is little need for the sentence to serve as a specific deterrent and the medical evidence (summarised above) supports that conclusion.
The prosecutor notes that there is no evidence that Mr Chia was suffering from depression at the time of the offending. As such, the prosecutor submits that neither his current physical nor mental health warrant any reduction in moral culpability for the offence, and the medical evidence does not provide a proper basis to refrain from taking into account the need for the sentence to serve the purposes of punishment and denunciation.
While Mr Chia accepts that the medical evidence does not support a submission that such conditions were relevant to the offending or mitigating on that basis, he submits that it suggests that there is little warrant for any specific deterrence in this case, and he does not present as a suitable person to be used for the purpose of general deterrence.
The potential relevance of evidence of an offender's mental health in the consideration of whether and the degree to which a sentence should properly serve the purpose of general deterrence has been considered in a number of cases, including R v Engert (1995) 84 A Crim R 67 at 68, 70-71, R v Wright (1997) 93 A Crim R 48 at 50-51, De La Rosa at [177]-[178] and Council of City of Shoalhaven v Wilson [2015] NSWLEC 93 at [18], [26].
While there has never been any presumption of distress or anxiety caused by the prospect of a sentence, that does not mean that a sentencing court does not take into account anxiety and distress where it has evidence of those conditions. Notwithstanding the absence of any causal connection between Mr Chia's mental health and the circumstances of the offending, the Court can have regard to Mr Chia's mental health and consider whether, in conjunction with all of the relevant circumstances, his mental health reduces the need for the sentence to serve the purpose of general deterrence, and if so, to what extent.
For environmental offences, the purpose of general deterrence is of central importance, however, in the circumstances, and having regard to Mr Chia's health, I accept that it is appropriate to moderate the need for the sentence to serve the purpose of general deterrence.
As I have found that Mr Chia is unlikely to re-offend on the basis that he is 71 years old, his state of health is poor, he has no prior convictions, the Carnarvon Road property has been sold, and given the toll the proceedings have had on his health and financial position, I accept the prosecutor's submission that the need for specific deterrence is low.

[18]

Consistency in sentencing

In determining the appropriate penalty for the offence, the Court should be consistent with any patterns of sentencing for like offences.
The prosecutor refers the Court to the 17 cases considered in Henlong at [79]-[80].
Mr Chia directs the Court to various penalties imposed for offences involving the clearing of trees as summarised in Gittany at [183]-[187]. The cases therein include Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349, Eurobodalla Shire Council v Wheelhouse [2006] NSWLEC 98, Ku-ring-gai Council v Nettcorp Pty Ltd [2003] NSWLEC 203, Sutherland Shire Council v Nustas [2004] NSWLEC 608, Byron Shire Council v Fletcher [2005] NSWLEC 706; (2005) 143 LGERA 155, Newcastle City Council v Pepperwood Ridge Pty Ltd [2004] NSWLEC 218; (2004) 132 LGERA 388 and Council of Camden v Tax [2004] NSWLEC 448; (2004) 137 LGERA 368. Mr Chia notes that those cases suggested a penalty in the order of $10,000 to $25,000, up to a high point of $68,000 for the removal of up to 164 trees without consent.
Mr Chia also refers to Hurstville City Council v Naumcevski [2011] NSWLEC 226, Cessnock City Council v Bimbadgen Estate Pty Ltd (No 2) [2011] NSWLEC 140, Ballina Shire Council v Watson [2006] NSWLEC 827 and Henlong.
I have had regard to the matters considered and the range of penalties imposed by the Court in the decisions to which I have been referred, including the objective and subjective circumstances in those cases. I am conscious that each case turns upon its particular facts and caution must be exercised in considering other cases as "there is always a difficulty in attempting to compare the penalty in one case with the penalty in another because of the wide divergence of facts and circumstances….": Axer at 366.
The sentence that I consider to be appropriate for the offence committed by Mr Chia is not inconsistent with the sentences imposed in the cases referred to above, nor is it inconsistent with my consideration of the Edgar proceedings.

[19]

Parity

I accept that the parity principle arises as a relevant consideration in these proceedings. As such, I have had regard to the penalty imposed on Mr Edgar in the Edgar proceedings.
In Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 at 609, Gibbs CJ explained the principle as follows: … It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account.
In Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49 at [28]-[29], French CJ stated (footnotes omitted): [28] …Consistency in the punishment of offences against the criminal law is "a reflection of the notion of equal justice" and "is a fundamental element in any rational and fair system of criminal justice". It finds expression in the "parity principle" which requires that like offenders should be treated in a like manner. As with the norm of "equal justice", which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances. [29] General concepts of "systematic fairness" and "reasonable consistency" in sentencing, as an aspect of the administration of federal criminal justice, were discussed in Hili v R. They apply to persons charged with similar offences arising out of unrelated events. The consistency they require is "consistency in the application of the relevant legal principles, not some numerical or mathematical equivalence." That kind of general consistency is maintained by the decisions of intermediate courts of appeal. The consistency required by the parity principle is focussed on the particular case. It applies to the punishment of "co-offenders", albeit the limits of that term have not been defined with precision.
The prosecutor submits that there are a number of factors which the Court would take into account in determining how to apply the parity principle between Mr Chia and Mr Edgar: 1. Mr Edgar was sentenced on the basis that he did what he was directed to do by Mr Chia, suggesting Mr Chia should receive a heavier penalty than Mr Edgar; 2. In Edgar, Moore J determined that Mr Edgar's offending was of moderate objective seriousness, such that a starting fine of $45,000 was appropriate. That amount was discounted to $30,000 in light of subjective factors, including Mr Edgar's early guilty plea, his contrition, and cooperation with the prosecutor. The fine was further discounted to $16,000 in light of Mr Edgar's financial circumstances. A starting fine in respect of Mr Chia would logically be higher than the starting fine applicable for Mr Edgar, and Mr Chia should not be entitled to any discount for pleading guilty, for contrition, or cooperation with the prosecutor; and 3. Moore J further reduced the quantum of the fine imposed on Mr Edgar based on cogent evidence that he was incapable of paying a substantial fine. There is no proper basis for any finding to be made that Mr Chia does not have the capacity to pay a substantial fine.
In light of the above, the prosecutor submits that a significantly higher penalty should be imposed on Mr Chia relative to that which was imposed on Mr Edgar.
Mr Chia notes that the principal contractor in these events, Mr Edgar, pleaded guilty and was fined $16,000 after a series of discounts. Mr Chia acknowledges that he is not entitled to the discounts which Mr Edgar received arising from a guilty plea, contrition, and assistance to authorities. Further, Mr Chia notes that Mr Edgar's limited means to pay a fine were taken into account, despite heavy criticism of the adequacy of the evidence in support of this by the prosecutor. In all the circumstances, Mr Chia submits that any penalty should not exceed that which was imposed on Mr Edgar. Further, in Edgar, the Court found that Mr Edgar should have been aware of the necessity to obtain permits and consents and that he committed the offence for financial gain, and that these are matters which should be taken into account.
I have closely considered the judgment of Moore J in Edgar, particularly the different subjective circumstances therein, and I have taken those matters into account when determining the appropriate sentence in the present matter.

[20]

Section 10 application

At the hearing, Mr Priestley indicated that he had received instructions to submit that the matter of penalty be dealt with under s 10 of the Sentencing Act and that the factors in s 10(3)(a) should be considered in relation to any order under s 10.
Section 10 of the Sentencing Act relevantly provides: 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, ... (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. ... (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. ... (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 application of s 10(3) was considered by Simpson J (with Ipp AJA and Wood CJ at CL agreeing) in R v Paris [2001] NSWCCA 83 ('Paris') at [42] as follows: [Section 10(3) of the Sentencing Act] requires the court to have regard to the four factors listed. This is not intended to preclude the court having regard to any other relevant factors but it does require express regard to those matters identified…It is not necessary to the application of s10 that the offence be characterised as trivial; the four factors mentioned in [s 10(3) of the Sentencing Act] are, in my view, intended to be disjunctive and nonexhaustive.
The application of s 10 in this Court was also considered by Biscoe J in Blue Mountains City Council v Carlon [2008] NSWLEC 296 at [67]-[71]. His Honour identified the following four principles (citations omitted): 1. The Court's power to dismiss charges under s 10 reflects the willingness of the legislature to provide first offenders, in certain circumstances, a second chance to maintain a reputation of good character: R v Van Nam Nguyen [2002] NSWCCA 183 at [50]; 2. All of the criteria in s 10(3) must be taken into account and no criterion alone is conclusive: Paris at [43], [48]-[49]; 3. It is not necessary that the offence be "trivial" in nature because the criteria in s 10(3) are intended to be disjunctive: Paris at [42]; and 4. In the case of a strict liability offence, it is unusual for a defendant to receive the benefit of s 10, even in circumstances where they believed the prohibited activity could be lawfully undertaken.
Having regard to the criteria provided for in s 10(3) of the Sentencing Act, although I have found that Mr Chia is otherwise of good character, and as I have some evidence of other factors including his antecedents, age, health, and mental condition (as noted above), I find that the offence could not on any view be described as "trivial", and I do not consider that the circumstances involved in the commission of the offence can properly be described as "extenuating".
I find that despite the matters that I have noted in favour of Mr Chia above, in light of the objective seriousness of the offence, an order pursuant to s 10 of the Sentencing Act is inappropriate.

[22]

Costs

The prosecutor seeks an order that Mr Chia pays its costs as agreed or assessed. The prosecutor notes that such costs (which it estimates at $400,000) are of the high order of magnitude given that the trial ran for approximately 25 days and written submissions were prepared by reference to the transcript.
The prosecutor says what weight the Court decides to give to that factor is a matter for the Court, however, the Court would properly take into consideration that the high quantum of costs was a predictable consequence of the forensic decisions made by Mr Chia in the conduct of, and associated with, the trial.
Mr Chia submits that having regard to his limited capacity to pay, and noting that consideration of s 6 of the Fines Act can also be applied to costs, in accordance with the definition of "fine" in s 4 of that Act, it would be appropriate to order that each party pay its own costs. Alternatively, in determining the appropriate penalty, Mr Chia contends that the Court should take into account any order against him for payment of the prosecutor's costs and the Court can readily conclude that the costs on both sides have been substantial.
In considering the financial means of the offender, in addition to the fine imposed, the Court may have regard to the prosecutor's legal costs of the proceedings: Environment Protection Authority v Barnes [2006] NSWCCA 246 at [78], [88] and Hanna at [176].
While Mr Chia submits that in determining the appropriate penalty, the Court should take into account any order against him for payment of the prosecutor's costs, I am conscious of the comments of Preston J in Turnbull at [260] that: …It is true that any costs payable are considered to be a fine for the purpose of the Fines Act and also part of the penalty imposed on the offender: see Environment Protection Authority v Barnes at [88]. However, a fine and a costs order serve different purposes. A fine serves the purposes of sentencing for the offence committed by the offender, including punishment of the offender. A costs order serves to compensate the prosecutor, not punish the offender: see Latoudis v Casey (1990) 170 CLR534 at 569; [1990] HCA 59 and Environment Protection Authority v Taylor (No 4) [2002] NSWLEC 59 at [45].
Although the quantum of costs incurred raises a matter of some nicety, in the circumstances, I do not necessarily consider the fact that Mr Chia will be ordered to pay the prosecutor's costs of the proceedings to be a reason to impose a lesser fine than is otherwise appropriate. As submitted by the prosecutor, I consider that Mr Chia made a series of forensic decisions to conduct the hearing in the manner in which it ultimately proceeded, and, while I am conscious of the high order of costs in the matter, on the evidence, I do not consider that Mr Chia has established that he will be unable to pay both the fine and the prosecutor's costs.
If I was of the view that Mr Chia would not be able to pay the aggregate sum of the fine and the costs order, I could impose a lesser penalty, however, ordinarily, it would be more appropriate to reduce the amount of costs payable rather than the amount of the fine: Turnbull at [261]. This is because, as noted above, fines and cost orders serve different purposes, and, should the fine be substantially reduced, it may not serve as a sufficient general deterrent to others: Turnbull at [260]-[261]. As stated at [111] above, in circumstances where Mr Chia made a series of forensic decisions over a protracted period throughout the course of the trial, I do not consider it appropriate to reduce the amount of costs otherwise payable. In light of the evidence in relation to Mr Chia's capacity to pay, it follows that the penalty imposed should similarly not be reduced so as to achieve the purposes of sentencing.

Ku-ring-gai Council v John David Chia

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