18 In cross-examination by Ms Cheng's solicitor Mr Sua stated that he understands the nature of TPOs. He also stated that he had made no enquiries with Parramatta City Council regarding the Parramatta TPO, and commenced the Cheng job without making enquiries of the Council. Mr Sua described the job at the Cheng premises as a "middle-sized job" and stated that for larger jobs he would ask to see a permit. He stated his opinion that the trees were in dangerous shape and that cracks in the house were caused by the big tree. He assumed Council would approve removal of the tree because of damage to the house.
19 Mr Sua was shown the affidavit of Matthew Wareing, the Council Landscape Tree Management Officer, dated 16 December 2009 (exhibit F) which sets out the interview with Mr Sua on 23 October 2008. Mr Sua acknowledged that the affidavit was an accurate record of the interview, and stated that "I know it was the wrong thing" to cut down the trees. Mr Sua stated that the work crew had been stopped by Mr Bollard (Council's Landscape Tree Management Officer), and that he was not at Ms Cheng's address at that time but arrived later following a telephone call from his son who was working on the site.
20 Mr Sua recalls having a conversation with Ms Cheng and Timothy Cheng after Mr Bollard had left the site, and acknowledged he said words to the effect that "all will be OK, God will look after us". He stated that he did not provide a written quotation and recalled after prompting that the original quotation was $6,700. Mr Sua stated that he met Ms Cheng on another occasion in Whalan to get Ms Cheng's signature on the application for tree removal, and recalled telling Ms Cheng that maybe Council would just give a warning for breaching the TPO.
21 Photographs of the site before and after the offences occurred were also tendered. The TPO was also tendered and requires Council permission to cut down trees with a height equal to or exceeding 5m.
Issues in evidence
22 There is a difference in the evidence of Ms Cheng and Mr Sua as to when the issue of the lack of a Council permit to cut down trees was raised. This is relevant to whether Ms Cheng can rely on certain events in mitigating the objective circumstances of the offences. Ms Cheng's evidence is that she told Mr Sua when she met him to get a quotation early in the morning on 21 October 2008 that she did not have a Council permit and that he said that he would take care of it. Her written and oral evidence was consistent in that regard. Mr Sua's oral evidence in chief was that he did not refer to nor was the need to get a Council permit raised until after Mr Bollard from the Council came to the property after work had commenced. When asked in cross-examination by Ms Cheng's solicitor whether he recalled Ms Cheng telling him that she did not have a Council permit to remove trees earlier that morning when they met he could not recall. He then said that if Ms Cheng said that she said it he accepted that evidence. Mr Sua's recollection of events appeared uncertain, for example he could not recall what time of day he visited Ms Cheng.
23 Another matter which the Prosecutor attempted to make much of was the lack of a statement by Ms Cheng, according to the Prosecutor, that she was not aware that the work would be done the same day and was surprised when the workers arrived in the afternoon to do the work. At par 15 of her affidavit she states that she was not aware of when the work discussed with Mr Sua (in the morning of 21 October 2008) would be done. She stated in oral evidence in answer to questions from the Prosecutor that she was very surprised when workmen turned up in the afternoon on 21 October 2008. This attempt to suggest that she should have said or done something else to communicate her surprise on the day is an approach made with the benefit of perfect hindsight into events which unfolded quickly on the day. Her evidence establishes that she was very surprised when workmen arrived in the afternoon of 21 October 2008.
24 There is also a disagreement in Ms Cheng's evidence and the affidavit evidence of the Council officer Mr Bollard. The statement attributed to her by Mr Bollard that she wanted the trees removed and that these people could do it straight away (see par 4 above) was disputed by Ms Cheng in her affidavit at par 15 where she also stated that she did not know when Mr Sua would do the work. She was also clear in her oral evidence that she did not say those words. Mr Bollard was not cross-examined on his affidavit.
25 Matters relied on in mitigation must be established by Ms Cheng on the balance of probabilities. I accept Ms Cheng's evidence that she did raise the matter of a Council permit with Mr Sua early on 21 October 2008 in the terms stated by her. I also accept her evidence in par 15 of her affidavit that she did not know when Mr Sua was to do the work and that she was surprised when workmen arrived later on 21 October 2008. Her reaction to events is also confirmed by evidence of Mr Cheng, her son, and Mr Dunn. I therefore consider I can take into account that she believed Mr Sua was to organise Council approval for the tree removal as a mitigating factor, it having been established on the balance of probabilities. The difference in the evidence of Mr Bollard does not prevent that finding when all relevant matters are considered.
Relevant sentencing considerations
26 Section 3A of the Crimes (Sentencing Procedure) Act 1999 (the CSP Act) sets out the purposes of sentencing. Section 3A provides:
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.
27 Subsections (a), (b), (e) and (f) are particularly relevant. The CSP Act (in particular, Pt 3 Div 1) contains provisions relevant to sentencing procedures. Section 21A of the CSP Act sets out aggravating, mitigating and other factors to be taken into account in sentencing.
28 In Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [163] and Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [110] relevant factors to determine the objective gravity of an offence were identified for offences under the EP&A Act. The factors include the maximum penalty, the objective harmfulness of the defendant's actions, the reasons for the commission of the offence and the state of mind of the offender.
29 The statutory scheme in which the offence provision appears is also important. The EP&A Act's objectives include the promotion and orderly and economic use and development of land, s 5(a)(ii), as well as protection of the environment, s 5(a)(vi).
Prosecutor's submissions
30 While there are two offences, these arise from the one course of conduct and should be dealt with under the totality principle. The Prosecutor submitted the offences committed were at the low end of seriousness for this type of offence. The environmental harm caused was minor. It is nevertheless important to punish unauthorised tree clearing activities in urban areas as such actions cumulatively can have a negative impact on the urban environment. The Defendant should have made sure a Council permit had been obtained before the tree contractor Mr Sua, through his business, commenced tree clearing.
Defendant's submissions
31 Ms Cheng's solicitor submitted this is a minor matter which has resulted in minimal environmental impact. The trees were not significant and there are additional remaining trees on her land which contribute to the streetscape, as demonstrated in streetscape photographs tendered at the hearing. The harm caused is well below any other reported decision in this Court. The Defendant's state of mind and reasons for commission of the offence are relevant. She was under significant emotional pressure and was having to deal with a number of overwhelming issues in her life. She genuinely believed that Mr Sua would obtain all necessary permits to allow the clearing of the trees. Her main concern was the removal of the large tree near her house which was causing structural damage and had dropped branches which had damaged roof tiles, resulting in insurance claims. The Council has subsequently permitted removal of that tree.