Consistency in sentencing
35The principle of evenhandedness requires that the Court consider if there is any general sentencing pattern for like offences in order to determine a consistent approach to penalty. This principle must always be applied subject to the particular circumstances of the case before the Court, mindful of the different circumstances leading to penalty in other cases. An appropriate sentence is to be determined mindful that:
... a basic principle of sentencing law is that a sentence...imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances (see Veen v. The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465, at pp 472, 485-486, 490-491, 496).
per Hoare v R [1989] HCA 33; (1989) 167 CLR 348 at 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ).
36In relation to the need for care in considering sentencing patterns, if any, I adopt the following reference to Hili v R; Jones v R [2010 ] HCA 45; (2010) 204 A Crim R 434 at [54] of Pepper J in Environment Protection Authority v Big River Group Pty Ltd [2011] NSWLEC 80 at [118]:
In Director of Public Prosecutions (Cth) v De La Rosa , Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: "Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts." But the range of sentences that have been imposed in the past does not fix "the boundaries within which future judges must, or even ought, to sentence". Past sentences "are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence " (emphasis added). When considering past sentences, "it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned".
37Numerous cases of vegetation removal are referred to in Cameron at [105] most having objective circumstances far more serious than this matter. Possibly most relevant are Ryde City Council v Craig Fry [2007] NSWLEC 253 where the defendant trimmed branches overhanging his house from a local park without council consent. The fine was $1,500 and prosecutor's costs $4,500. The defendant's financial circumstances were taken into account. In Ryde City Council v Xu [2003] NSWLEC 146 the defendant committed an offence against s 125(1) of the EPA Act by lopping the top off a tree protected by a tree preservation order and located on a public reserve, without the council's consent. O nly one regenerating tree was damaged but the Court did not consider that the defendant should benefit from s 10 of the CSP Act because the offence was a result of deliberate conduct upon a tree in good condition. The defendant had no prior convictions. The Court considered that the appropriate penalty was $10,000 but reduced the sum to $7,500 in view of the early guilty plea.
38No application has been made under s 6 of the Fines Act 1996.
39I note that the Defendant agrees to pay the reasonable costs of a suitable replacement tree to be chosen in consultation with the Council and representatives of the school.