Ku-Ring-Gai Municipal Council v Beaini

The Defendant has pleaded guilty to a charge of an offence against the Environmental Planning and Assessment Act 1979, s 125 in that on 19 January 2000 he cut down a number of trees situate on his property at Wahroonga without the consent of the Council, contrary to the Council's Tree Preservation Order (the TPO).

According to the Particulars endorsed upon the Summons, 30 eucalyptus trees were cut down and one eucalyptus tree was pruned.

In a separate judgment delivered in the course of the trial, I held that the maximum penalty prescribed for such offence is $20,000 - see Ku-Ring-Gai Municipal Council v Beaini (2001) NSWLEC 30.

The relevant facts are principally established by the Statement of Agreed Facts (Exhibit 1) but supplemented by affidavits filed on behalf of each of the parties.

The following is a summary of the relevant facts -

1. The Defendant is the co-owner with his wife of two adjoining residential properties known as Nos 66 and 68 Brown's Road Wahroonga.
2. The Defendant has lived with his family at No 68 since 1993.
3. The rear of the Defendant's property abuts Lane Cove National Park, an area of extensive natural bushland.
4. On or about 19 January 2000, the Defendant undertook some clearing work at the rear of his property, including removing vegetation weeds and shrubs and small trees.
5. Some of the trees cut down in that clearing work were dead. However, some 30 live trees were cut down. Many of these trees were regrowth trees that had come into existence since the major bushfires in the area in 1994. In all 30 eucalypt trees, the preservation of which is governed by the TPO, were cut down and one other eucalypt, also covered by the TPO, was pruned. In the case of these 31 trees, the TPO required the prior written consent of the Council for the "ringbarking, cutting down, topping, lopping, pruning, removing, injuring or wilful destruction of any tree having a height greater than 5 metres or a canopy spread of 4 metres". The 31 trees ranged in height from 5 to 12 metres. As such, none had reached maturity.
6. In the unchallenged opinion of Mr Francis Fanning, an environmental consultant (which I accept), the trees that were cut down or pruned were not of sufficient size to support tree hollows or other significant resources for native fauna and the removal of the subject trees has not "imposed a significant or relevant impact upon the natural environment" and there "is no likelihood that any threatened species, populations or ecological communities, or their habitats are dependent upon the site".
7. The Defendant undertook the clearing work because of his concerns at the overgrown nature of the vegetation constituting a bush fire hazard and a haven for rats and snakes with consequent dangers to his three small children when they were present in the rear yard.
8. In undertaking that work, the Defendant had believed that the TPO only applied "to large gum trees and not to the clearing of small trees and shrubs".
9. The Defendant regrets the commission of the offence caused by his inadvertence. He expresses contrition for the incident.
10. The Defendant is a practicing medical practitioner who has never previously been convicted of a criminal offence.
11. The Defendant is a person of excellent professional and personal character and reputation as attested by the character references tendered on his behalf.
12. The Defendant is willing to submit to an order pursuant to the EP&A Act, s 126(3) to provide for re-planting and re-vegetation in replacement for the 30 trees removed.
13. On 20 December 2000, this Court granted development consent to a proposal for the development of 34 x 3 bedroom apartments providing housing for older and disabled persons on four adjoining lots in Browns Road (including the lots co-owned by the Defendant). However, the proposed development does not involve the active use of that part of the development site which was the subject of the tree removal action undertaken by the Defendant. The Defendant had consented to the lodging of the development application which had occurred some five months after he had removed the trees.

The Prosecutor submits that the Court should regard as serious the admitted offence and impose a penalty commensurate with the objective gravity of the offence and the subjective responsibility of the Defendant in committing it.

It was submitted that that responsibility is rightly to be regarded as recklessness on the Defendant's part. He is an educated professional person who was aware of the existence of the TPO and as a resident of Ku-Ring-Gai Municipality for the past seven years, should have consulted the Council before engaging in the clearing activity.

The Defence submission was that having regard to the existence of many mitigating factors, the Court should not record a conviction against the Defendant by exercising in his favour the discretion conferred upon the Court by the Crimes (Sentencing Procedure) Act 1999, s 10(1) by conditionally discharging him. The mitigating factors may be summarised as follows: (i.) The Defendant not only entered a plea of guilty to the charge at an early stage in the litigation, but from the first time that he was approached by the Council when investigating the incident, he freely admitted what he had done and why he had done it. (ii.) The Defendant's action in clearing his land had been well-motivated, namely to eliminate bush fire risk and to protect his children from the danger from rats and snakes observed in the area there being no suggestion that there was any other ulterior motive or cause for the removal of the trees; (iii.) The Defendant's mistaken belief that the TPO only applied to large trees was neither contrived nor outrageous. (iv.) This is the first environmental or any other criminal offence committed by the Defendant. (v.) The Defendant is willing to submit to an order pursuant to the EP&A Act, s 126(3) for replacement tree planting. (vi.) The expert evidence indicates that the removal of the trees did not produce significant adverse environmental effects because of the youthfulness of the trees (regrowth trees) and their location on the edge of the Lane Cove National Park, an extensive area of natural bushland. (vii.) The Defendant was a person of excellent character and reputation both professionally and personally, who was not likely to re-offend and for whom a criminal conviction would create a profound personal stigma.

Section 10(2) and s 10(3) of the Crimes (Sentencing Procedure) Act 1999 which enumerate considerations relevant to the exercise of the discretion to conditionally discharge a person guilty of an offence provide as follows: (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. (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.

My consideration of each of the factors enumerated in subsection (3) lead me to the following conclusions -

Factor (a) This factor operates in favour of the Defendant who is attested as a person of excellent character and reputation, professionally and personally.

Factor (b) This factor operates against the Defendant insofar as existing authority in this Court and in the Court of Criminal Appeal has consistently regarded the offence the subject of the present charge (and similar charges), as a "serious offence". For example, in Cooper v Coffs Harbour 97 LGERA 125, the Court of Criminal Appeal, dealing with a similar charge to that involved in the present case, made the following observation at p 143 in the judgment of Howie AJ (concurred in by the other members of the Court):

The offence which has been found proved is a serious one even limited as it has been in this appeal. The removal of the trees on the site without the Council's approval was a serious breach of the conditions upon which consent had been given to the development application by the Council. This is so even though approval would have been given for the removal of the vast majority of the trees on the site in order that the development could proceed.

This same passage is cited in the judgment of Lloyd J in Ryde City Council v Calleiga (1998) 99 LGERA 360 at 365 before his Honour stated the following conclusion:

It follows that despite the probability of council approval being given in due course for the removal of those trees, their removal without such consent remains a serious offence

Having regard to those settled observations and to the objective nature of the offence and the maximum penalty prescribed for it (in this case $20,000 as I have earlier held), it is not reasonably open to conclude the offence is " trivial ".

Factor (c) This factor operates against the Defendant because although I accept that the Defendant was well motivated in his action of clearing his land and mistakenly believed that the TPO only applied to large trees and hence did not apply to the regrowth trees he removed, those factors do not constitute " extenuating " circumstances for two reasons - firstly, the offence is an offence of strict liability so that notions of fault are not truly relevant to the offence and secondly, even if they could conceivably constitute " extenuating " circumstances, they are counterbalanced, if not entirely overborne, by the Defendant's negligence or recklessness in acting upon his mistaken understanding of the content of the TPO, when discovery of the true content would have been such an easy task and one that automatically and naturally would commend itself to a person of the Defendant's intelligence and understanding. To hold that the Defendant's motives in removing the trees were " extenuating circumstances " would be tantamount to rewarding ignorance of a nature and kind that could have been ever so readily dispelled by the most simple enquiry made of the Council concerning the true content of the TPO, and of the obligations thereby imposed upon landowners and occupiers, in order to preserve protected trees for the visual and amenity benefits of the entire Municipality.

Factor (d) This factor operates against the Defendant insofar as he asks the Court to excuse a significant lapse of care or a significant inadvertence on his part. For the Court to excuse such a lapse would be apt to give the wrong message to persons bound by the TPO (and indeed, similar planning controls applying for the benefit of preserving and protecting the natural environment) by inevitably encouraging ignorance and a consequent laxity of compliance with their obligations under the TPO. As a result of his residing for at least seven years within the Ku-Ring-Gai Municipality, which is very well known for its existing natural and treed landscape, the Defendant must be taken to have known better than to proceed on his mistaken belief as to the true content of the relevant controls imposed by the TPO.

Moreover, there is the consideration of the general deterrent effect of sentencing in the criminal law so that the community is properly educated in the law's demands, to the proper end that the law will come to be generally known and obeyed. However, in giving effect tot his sentencing policy, care must be taken to avoid imposing upon an individual offender an unfair burden of community education cf Walden v Hensler (1987) 163 CLR 561 at 569/570 per Brennan J.

Having regard to my findings in relation to the matters enumerated in the Crimes (Sentencing Procedure) Act 1999, s 10(3), I am of the opinion that the Defendant has not made good his case for his conditional discharge.

In Cooper, where the Court of Criminal Appeal determined for itself the ultimate issue and found the amended charge to be proved beyond reasonable doubt, the Court was asked to record no conviction by applying the provisions of the Crimes Act 1900, s 556A.

In rejecting such an appeal, Howie AJ, on behalf of the Court said:

It has been submitted that no conviction should be recorded by applying the provisions of s 556A of the Crimes Act 1900 (NSW). I do not believe that course would be appropriate notwithstanding the good character of the appellant. The offence is not a trivial or technical one and there is nothing in the circumstances in which it was committed which justifies dealing with it in that way. There is no matter that I can discern which would justify the Court in declining to convict and punish the appellant for the offence. There must be an element of general deterrence in dealing with significant breaches of the planning laws.

My analysis of the relevant considerations enumerated in the Crimes (Sentencing Procedure) Act 1999, s 10(3) has proceeded upon similar lines of reasoning producing a similar result to that reached in Cooper.

In my judgment, the present case calls for conviction and sentence having regard to all the circumstances that I have earlier outlined concerning the objective gravity of the offence and the Defendant's criminal and moral responsibility in the commission of the offence, but also giving effect to the mitigating factors which operate in favour of reducing the sentence that would otherwise be imposed. Consistent with principle, the combined force of these mitigating factors justifies, in my judgment, a 50% reduction in penalty.

In Calleiga, Lloyd J made the following relevant observations on sentencing at 367 -

The penalties imposed by this Court for offences such as this have varied considerably and are largely dependent on the particular circumstances of the offence. Those penalties generally range from no financial penalty to $15,000. A common fine is between $10,000 and $15,000. Talbot J in Power v Coopers Construction Pty Ltd and Power v Cooper effectively fined the defendant in those proceedings $15,000, although the Court of Criminal Appeal in Cooper v Coffs Harbour City Council reduced that fine to $5,000. It is instructive to note that the latter court in reducing the penalty did so because of the less serious nature of the charge which was before it (at 143). It said nothing of the appropriateness of the penalty issued by Talbot J on the facts before him.

More recently, in the Gumland prosecution, involving the same offence as is charged in the present case, Lloyd J imposed a fine of $8,000 and additionally made an order for extensive replanting and rehabilitation pursuant to the EP&A Act, s 126 (3). Of importance to the present case is the fact noted in my earlier judgment in the proceedings, that Lloyd J accepted the parties' joint submission that the maximum penalty for the offence was $20,000. In that case the defendant had pleaded guilty to the charge which particularised the cutting down of some 55 trees.

The facts of the present case are somewhat similar to the facts in Gumland, although the number of trees removed in that case was 55 compared with 31 in the present case.

In the present case, the Prosecutor, exceptionally, does not seek any order for replacement trees pursuant to the EP&A Act, s 126(3) on account of the fact that in the development consent granted for the housing for older and disabled persons that I have earlier mentioned, there are conditions of consent requiring the appropriate landscaping of the development site.

However, since the Defendant is willing to submit to an order pursuant to the EP&A Act, s 126(3), he should not, of course, be penalised by virtue of the fact that the Prosecutor, for the reasons given, does not seek any such order.

Accordingly, when comparing with the present case, the overall penalties imposed by Lloyd J in Gumland, the fact that an order pursuant to s 126(3) was imposed carries no significance for the sentence, by way of fine only, to be imposed in the present case.

In all the circumstances of this case, but for the influence of mitigating factors, I would regard as appropriate a fine of $12,000 reflecting 60% of the maximum penalty. However, that amount should be reduced by 50% to reflect the maximum combined effect of mitigating circumstances.

24. The Defendant has agreed to pay the reasonable costs of the Prosecutor in the sum of $6,500.

25. Accordingly, and for all of the foregoing reasons, I make the following orders -
26. The Defendant is convicted of the offence charged.
27. A penalty of $6,000 is imposed in respect of that conviction.
28. The Defendant shall pay the Prosecutor's costs in the agreed sum of $6,500.
29. Exhibits to be returned, except for Exhibit 1 which will remain on the Court file.

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