Parramatta City Council v Cheng

Crimes (Sentencing Procedure) Act 1999 s 3A, 10, 21A LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 5(a)(ii), 125(1) Local Government Act 1993 Parramatta Local Environmental Plan (2001)

Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 CASES CITED: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 R v Paris [2001] NSWCCA 83 Willoughby City Council v P and V Masonry Pty Limited [2003] NSWLEC 312

PROSECUTOR Mr T Howard SOLICITOR LEGAL REPRESENTATIVES: Storey & Gough DEFENDANT Mr G McKee (solicitor) SOLICITOR McKee's Legal Solutions

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

50012 of 2010; 50013 of 2010 Parramatta City Council v Cheng

JUDGMENT 1 Her Honour: The Defendant, Ms Cheng, has pleaded guilty to two charges that on 21 October 2008 she committed an offence under s 125(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) in that three trees were cut down on her property in Ermington in breach of a tree preservation order (TPO) made under the Parramatta Local Environmental Plan (2001) (matter no 50012 of 2010) and one tree was lopped in breach of the TPO (matter no 50013 of 2010) being acts forbidden to be done under the EP&A Act. The tree contractor Mr Sua trading as Foxy Tree Services responsible for the cutting down and lopping of the trees the subject of the charges has also been charged with the same offences. The matters were heard together. It was agreed that apart from the Statement of Agreed Facts (the SOAF) the evidence in one matter would be evidence in the other. Separate judgments have been prepared for each Defendant.

2 The maximum penalty applicable for such offences is $1.1 million. As the Defendant has pleaded guilty the Prosecutor can be considered to have proved the essential elements of the offence. It is now necessary to sentence Ms Cheng. The offence is one of strict liability so that no mental element forms part of the elements of the offence. Facts 3 The parties have agreed a SOAF as follows: 1. The Defendant is, and at the time of the commission of the offences was, the owner and occupier of the land being Lot 39 in DP30464, known as 27 Maple Crescent, Ermington ("the Land").

The Prosecutor is a council constituted for the area of the City of Parramatta ("the Parramatta LGA") under the Local Government Act 1993 (NSW) . It is a body politic of the State with perpetual succession and the legal capacity and powers of an individual.

The Land is situated within the Parramatta LGA. .

At all relevant times, the Parramatta Local Environmental Plan 2001 ("PLEP") applied to the Land, which at all relevant times was zoned Residential 2(a) under PLEP.

Clause 33 of PLEP provides, and at all relevant times provided, as follows: "33. A person must not ringbark, cut down, top, lop, remove, injure, poison, or wilfully destroy any tree or indigenous vegetation, or add soil or carry out drainage works around the base of a tree or in bushland, unless authorised to do so by: (a) a development consent; or (b) a permit issued by the Council; or (c) a provision of a tree preservation order made by the Council that does not require consent or such a permit for the activity concerned".

As at the date of the commission of the offences, prior to the offences being committed, there were three (3) Corymbia citriodora and a Eucalyptus sp tree ("the subject trees") located in the front yard of the Land. The Corymbia citriodora tree which was located closest to the existing dwelling on the Land had grown to a height of approximately 15 to 18 metres. Each of the other Corymbia citriodora trees and the Eucalyptus sp tree had grown to a height of in excess of 5 metres.

At 4:30pm on 21 October 2008, Ryan Bollard, a Landscape Tree Management Officer employed by the Prosecutor, attended the Land. At that time he observed a number of tree contractors, including one (1) climber who was in the tree canopy of the large Corymbia citriodora which was located closest to the dwelling on the Land. The climber was in the process of lopping that tree with the intention of cutting it down (the process being halted by the intervention of Mr Bollard). The other two (2) Corymbia citriodora trees and the Eucalyptus sp tree had been cut down.

Whilst at the Property, Mr Bollard spoke to the Defendant who stated that she had engaged a tree removal company to remove the subject trees. The Defendant also stated that she did not have a Tree Permit for the removal of the subject trees.

As at the date of the commission of the offence, the general prohibition set out in clause 33 of PLEP applied to the tree works carried out with the Defendant's authority and none of the exceptions to that prohibition had any relevant application. In particular: a. there was no development consent in force which authorised the lopping or cutting down of the subject trees; and b. the Prosecutor had not issued any permit authorising the lopping and cutting down of the subject trees; and c. the Prosecutor's tree preservation order made no provision for the lopping or cutting down of the subject trees without first obtaining a development consent or a permit from the Prosecutor.

Prior to the subject trees being lopped and cut down, the Defendant did not obtain a Development Consent or a permit from the Prosecutor to authorise the cutting down or lopping of the subject trees.

Prosecutor's evidence 4 An affidavit affirmed by Ryan Bollard, Council officer, on 23 December 2009 states that he attended the property at Ermington on 21 October 2008 at 4.30pm in response to a complaint received by the Council that trees were being removed. Mr Bollard states that after Ms Cheng identified herself as the property owner, he asked if she had a permit for the work. Mr Bollard states that Ms Cheng replied "no". Mr Bollard asked Ms Cheng if she had organised for the tree removal, and states that Ms Cheng replied "yes". Ms Cheng told him she was concerned that the tree was causing damage to her house. Mr Bollard states that he told Ms Cheng there was a TPO and that an application for consent was required for tree removal. He states that Ms Cheng said to him she wanted the trees removed and these people could do it straight away. 5 Matthew Wareing, the Council Landscape Tree Management Officer, swore an affidavit dated 16 December 2009 deposing to an interview conducted with Mr Sua at the Council chambers on 23 October 2008. Defendant's evidence Ms Cheng 6 Ms Cheng swore an affidavit dated 30 March 2010 that was read in the proceedings and also gave oral evidence. The affidavit states that she reduced her fulltime employment to three days per week as a primary school teacher in late 2007 to allow her to support and assist her parents, especially in attending their frequent medical appointments. She states that she was experiencing significant stress and bouts of depression associated with marital and property settlement issues. Ms Cheng supports this statement with a report from her general medical practitioner annexed to her affidavit. Ms Cheng also annexed documents from her insurance agent and a contract repair service for two claims for damage sustained to her home in February 2008 and July 2008 due to falling branches from trees near her house. On or about 11 October 2008 Ms Cheng visited a friend, Steve Dunn, and during that visit provided her contact details to a tree contractor door-knocking for business in anticipation of having a quotation organised for work at her property in Ermington. About a week later, via telephone, Ms Cheng organised an early morning appointment with Mr Sua for the purpose of getting a quotation before taking her mother to the hospital to visit her father. 7 When Mr Sua visited her property early on that day (21 October 2008), Ms Cheng gave him a comprehensive inspection of the front yard including a big tree which was causing structural problems to her house. Ms Cheng states that Mr Sua said he would take care of everything, and that he suggested the removal of additional trees to get access to the larger tree. Ms Cheng states that she told Mr Sua that she did not have Council permission. Ms Cheng also states that Mr Sua repeated that he would take care of everything and gave a verbal quotation for $6,700, indicating the funds would be directed to a church-building effort of his congregation. After two o'clock that afternoon three or four men arrived with trucks and tree lopping equipment, followed by more men. Ms Cheng states that she was intimidated by the number of people in her front yard and noted that her neighbours were having difficulty with street access because trucks were all over the street. Ms Cheng states that she was in a panic and hid in her house.

8 Ms Cheng recounts that she was in a distressed state when she was visited by a friend, Christina Hurley, later in the afternoon. Ms Cheng states that she was upset that Mr Sua was not present, and states that she had made a poor decision when she agreed with Mr Sua to do the job. Ms Cheng also recounts that her son telephoned her at about the same time that a Council officer (later indicated to be Ryan Bollard) directed the workers to cease work. Ms Cheng states that she asked her son to stay on the telephone when Mr Bollard approached the house to ask about Council permission for the work and to subsequently advise her that she could be liable for prosecution. Ms Cheng states that Mr Bollard advised her that a TPO required an application for consent to remove trees, and that work must cease. Ms Cheng disputes the account of her verbal exchanges with Mr Bollard as these appear in his affidavit of 23 December 2009. Ms Cheng states (par 15) that Mr Sua never advised her when his team would be ready to commence work.

9 Ms Cheng states that on or about 23 October 2008 she received a voice-mail message from Mr Sua, and later met with him at Steve Dunn's house in Whalan for the purpose of signing a tree removal application form which Mr Sua would lodge at the Council in relation to the big tree damaging her house. Ms Cheng states that she contacted the Council on 9 March 2009 for an update on the tree removal application and was advised that a structural engineer's report was required. A structural engineer's report was provided to Council in May 2009. A further tree removal application was lodged on 29 May 2009 as the original application had expired. This application and subsequent Council approval notice dated 2 November 2009 for the removal of four trees including the big tree damaging the house are annexed to the affidavit. A number of photographs are annexed which show structural damage to the house. Ms Cheng states that she decided to suspend her employment for the 2009 school year without pay because of her circumstances, including the need to continue supporting her parents with their health requirements. She states she is sorry for doing the wrong thing, and was shocked to be summonsed by Council after a year of assessment and final permission to remove the big tree. 10 Ms Cheng gave oral evidence. She is the owner of the premises and is employed as a school teacher. Ms Cheng stated that she told Mr Sua early on 21 October 2008 when he came to give a quotation that she did not have Council permission to cut down any trees, and that he said the quotation would include getting consent. She stated that the conversation she had with Mr Sua that morning about the proposed tree services included mulching and stump grinding and that Mr Sua "would take care of everything". When the very large work team arrived in the afternoon of 21 October 2008 Ms Cheng stated that she hid in her house because she had had a very distressing day taking her mother to the hospital to visit her very ill father. She stated that she had not been approached by the Council after the day of the offence to provide a statement. Ms Cheng read a prepared statement to the Court (later tendered as exhibit 1) in which she stated she was experiencing difficult personal and emotional circumstances at the time of the event, and was sorry for her lack of attention to the situation as it arose on 21 October 2008. She is embarrassed that she did not go out and confront the workmen on her property in the afternoon. Ms Cheng also stated that she has replanted the area where trees were removed with two crepe myrtles and a frangipani to add to her otherwise extensive garden and arbor.

11 In cross-examination by the Prosecutor's counsel, Ms Cheng stated that she did not expect the workers to arrive on the same day as the quotation had been negotiated with Mr Sua. She stated that she had spoken with Mr Bollard on the afternoon of 21 October 2008 in her home and that Mr Bollard questioned her about the lack of consent, her contractual arrangement with Mr Sua for tree lopping, and her concerns about building damage from the large tree. Ms Cheng acknowledged that Mr Bollard drew her attention to the local TPO and the possibility of prosecution for breach of that TPO. She stated she had previously received a letter from her insurance company regarding an earlier insurance claim which confirmed damage to her home had been caused by falling tree branches.

12 In cross-examination by Mr Sua's solicitor, Ms Cheng stated that she agreed that the smaller trees could be removed to get access to the larger tree if that was Mr Sua's view. She also stated the quotation was for the large tree which was the focus of her concerns. She stated her belief that Mr Sua's agreement to "get everything done" included getting the Council consent to cut down the trees. She stated she agreed to have the work done because it would be "one less thing on her plate" and the quotation given by Mr Sua was a good one. 13 An affidavit affirmed by Timothy William Cheng on 30 March 2010 states that he arrived at his mother's house on 21 October 2008 to see about twelve Samoan men sitting on the nature strip. He describes his mother as being very distressed. Mr Cheng recalls his mother saying "we are in big trouble". He also recalls that Mr Sua said "it will be OK, I'll take care of everything, God will look after us". Mr Cheng stated his belief that his mother was convinced Mr Sua would take care of everything, including the Council permit. He describes his mother's behaviour as totally out of character and that she was in a depressed state due to serious family circumstances at that time. Mr Cheng states that he made a $4,000 cheque payment to Mr Sua on 31 December 2008 for work completed, with the balance of the quoted amount to be made when the big tree was removed. 14 The affidavit sworn by Stephen Dunn and dated 30 March 2010 states that he is a friend of Ms Cheng and was aware she had made two insurance claims recently due to damage to her house from falling tree limbs. Mr Dunn states that he provided to Ms Cheng a contact to get a quotation for tree removal at her home while she was visiting his house on 11 October 2008. He states that on 21 October 2008 at about 7.00pm he received a telephone call from Ms Cheng. He states that she said "I am in trouble" and "I was getting the big tree cut down and then the Council came and stopped the guys and asked me if I had a tree permit. Sua was supposed to get it". Mr Dunn states his observation that Ms Cheng was sobbing on the telephone and opines that Ms Cheng was extremely distressed. Mr Dunn states that around 23 October 2008 he received another telephone call from Ms Cheng asking if she could meet with Mr Sua at Mr Dunn's home for the purpose of signing the tree removal application. Mr Dunn recalls that Mr Sua and Marie Sua (Mr Sua's wife) came to his home on a Saturday afternoon or Sunday for the purpose of Ms Cheng signing the application. Mr Dunn also recalls both Mr Sua and Mrs Sua saying they were very sorry for the trouble that had been caused and that Mr Sua said he had apologised to the Council. He recalls that Mr Sua said he "would take care of everything, that is in terms of the new tree removal application form and that God would look after us". Mr Dunn states that at some time in the next week or two he offered to "chase Sua and ring the Council guy and talk to him". Mr Dunn states he was aware of Ms Cheng's responsibilities regarding the deteriorating health of her father. Mr Dunn opines that Ms Cheng was constantly under pressure and breaking down often. Mr Dunn also opines that Ms Cheng was not thinking straight. He states his knowledge that Ms Cheng regrets her choice to get the tree(s) removed. Mr Dunn opines that Ms Cheng expected Mr Sua to get Council permission before doing the work. Mr Sua 15 Mr Sua gave oral evidence at the hearing. He stated that he arrived in Australia in 1986 and established a tree lopping business in 2002 called Foxy Tree Services. He conducted the business since 2005 after returning from living in New Zealand for three years. The business solicits tree lopping jobs by word-of-mouth and door-knocking activities. On 21 October 2008 he was contacted by Ms Cheng after she was forwarded his details following a door-knock by an employee in the Whalan area. Ms Cheng showed Mr Sua one large tree near her house which was causing structural damage to her house. Mr Sua gave Ms Cheng a quotation, which was agreed, and he commenced work that day. The quotation was for $8,000 or $4,000. He stated that there were also two smaller trees less than 10m tall under the larger tree, and he said that they should be removed to provide safe access to the larger tree. He also considered these trees were near power wires. 16 Mr Sua stated that he understood the usual practice is that property owners must get council consent for tree lopping works, and that he also knows he has a responsibility to check that consent has been granted. Mr Sua stated that he did not ask Ms Cheng if consent was given by the Council when they first met. After Mr Bollard from the Council came to the property after work had commenced he told Ms Cheng he would apply for a permit from the Council. Mr Sua stated that he knows he has done a wrong thing and apologises to the Court, to the Council and to Ms Cheng. His son now runs the business. It remains registered in Mr Sua's name. He works up to two days per week, and is paid approximately $500 a week for that work.

17 In cross-examination by the Prosecutor Mr Sua stated that he understood the written application process required by councils for tree lopping and removal. He stated that it was his understanding that trees less than 10m in height did not require council approval for lopping, or pruning of less than 10 per cent. Mr Sua stated that he had such belief because this was the information that had been provided to him by council staff from the Warringah shire. He understood that there was no time to get Council approval on the day of the offences before work commenced.

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.

Objective seriousness of the offence 32 In terms of the objective circumstances of the offence, the Court is to have regard to the maximum penalty applicable, as this is an expression of the seriousness Parliament attributes to the offence: see Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 and 701 respectively 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… ..the more serious the lasting environmental harm involved the more serious the offence and, ordinarily, the higher the penalty. 33 The maximum penalty for an individual is $1.1 million, having been increased from $110,000 in 2000. As recognised by Bignold J in Willoughby City Council v P and V Masonry Pty Limited [2003] NSWLEC 312 there is a broad spectrum of matters which can give rise to an offence under s 125 of the EP&A Act. This is clearly at the less serious end of that spectrum. In the discussion of relevant cases to consider on sentencing, the Prosecutor's counsel agreed this was the least serious circumstance concerning unauthorised tree removal before this Court that he was aware of. That is my view also in relation to the reported cases on matters before this Court. 34 The level of environmental harm is minor. The trees cut down were not of particular significance but would have contributed generally to the streetscape in the immediate local area. The big tree near the house has since been permitted to be removed due to the structural damage it was causing to it. 35 Ms Cheng wished to have the big tree causing damage to her house removed. She has established by her evidence which I have accepted that she did not intend that this be done without Council permission and did not expect that the tree removal would take place on the same day as the quotation provided by Mr Sua. The removal of the smaller trees came about because of Mr Sua's suggestion that these should be removed in order to remove the larger tree next to the house. She did not gain any development potential as a result of the tree removal nor was she trying to preserve a view. Her confused state of mind is amply demonstrated in her written and oral evidence and confirmed by that of Mr Cheng and Mr Dunn. Deterrence 36 Sentences made in relation to environmental offences must embrace powerful considerations of general deterrence: see Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357, per Badgery-Parker J at 367. In Axer, Mahoney J stated at 359: The quantum of the fines which the legislation allows to be imposed has no doubt been fixed not merely to indicate the seriousness with which such pollution is regarded but also to deter those engaged in such activities and to procure that they will take the precautions necessary to ensure that it does not occur. This is an important consideration in matters of unauthorised tree removal as such practice if widespread across the Sydney urban area would have a substantial negative impact on the amenity of the urban environment.

37 There is no need for specific deterrence in this case as this Defendant is highly unlikely to reoffend. Section 10 Crimes (Sentencing Procedure) Act 1999 38 Section 10 of the CSP Act relevantly provides: 10(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make either 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 … 39 In deciding whether to make an order referred to in s 10(1), the Court is to have regard to the following factors (s 10(3)): (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 40 Ms Cheng's solicitor submitted in the circumstances of this case, a dismissal of the charges pursuant to s 10 should be considered and may be appropriate for the following reasons: (a) the Defendant is a person of good character as set out in the character references tendered (b) the Defendant has never been before a court of any kind and will not reoffend; (c) the Defendant is 57 years of age and in the process of putting the pieces of her life back together after the loss of her father and the breakdown of her marriage; (d) the Defendant is a school teacher held in high regard and is a justice of the peace; (e) due to the absence of any environmental harm and the ability to remedy the impact from the tree removal, the offence is at the lowest end and potentially could be considered trivial; (f) if contrary to this submission the Court is of the opinion that the offences are not trivial, this fact alone does not preclude the operation of s 10.

Finding on section 10 order 41 Section 10 orders can be made in relation to matters which are not trivial per Simpson J (Ipp AJA and Wood CJ at CL agreeing) in R v Paris [2001] NSWCCA 83 at [42]. This matter is correctly described as minor but not trivial given the cutting down of trees and lopping of a fourth tree without the authorisation required under the EP&A Act. The environmental harm is minor given the loss of some trees in the streetscape. The trees were of moderate size. 42 The antecedents age, health and mental condition of Ms Cheng as submitted by her solicitor and stated in her affidavit and oral evidence are highly relevant. Ms Cheng is clearly of good character, attested to in numerous written character references both personal and professional tendered to the Court, holds a responsible position in the community and is a justice of the peace. Other relevant matters are that she pleaded guilty early and has no prior convictions of any sort. 43 The circumstances in which the offences were committed suggest strongly that Ms Cheng found herself in unusual circumstances in relation to which her judgment was impaired on the day of the offences due to difficult and serious personal circumstances outlined in her evidence both written and oral. Those circumstances are confirmed in the affidavit evidence of Mr T Cheng, her son, and Mr Dunn. I have held above in par 25 that I accept her evidence in relation to the conversations with Mr Sua early on the morning of 21 October 2008 to the effect that she raised with him the lack of a Council permit and he said he would take care of that and that she relied on that statement by him. I also accept her written and oral evidence that she was very surprised when the workmen from Mr Sua's business turned up in large numbers in the afternoon of the same day and commenced work. 44 It is also important to consider that the big tree near the house about which she was primarily concerned when she contacted Mr Sua has since been permitted to be removed by the Council because a structural engineer's report confirmed that it was damaging the house. The other trees were removed because that was Mr Sua's suggestion to her that this would need to occur in order to remove the big tree. 45 All these matters suggest that I should exercise the discretion I have to make an order under s 10(1)(a) of the CSP Act. 46 As raised with the Prosecutor at the hearing, it is concerning that these proceedings were commenced in the Land and Environment Court against this Defendant given the relatively minor nature of the offences. All the cases referred to by the parties where a breach of a TPO has been prosecuted in this Court were objectively more serious. Costs of pursuing the matter in this Court are likely to be higher than if the matter had been pursued in the local court or a penalty infringement notice issued. The maximum penalty for a penalty infringement notice is $1,500. The Prosecutor seeks its costs of the proceedings from the Defendant as it is entitled to do under s 257B of the Criminal Procedure Act 1986 and I note that the parties have reached agreement that an amount of $10,000 for the Prosecutor's costs are to be paid. That is a substantial sum for this Defendant in any event, accepting the information about her means from her solicitor for current purposes, and she is liable for that sum regardless of the making of an order under s 10(1)(a).

47 Further, the Council did not obtain a statement from Ms Cheng before commencing these criminal proceedings against her about the circumstances of the offences. Its decision to prosecute her in this Court was presumably made without awareness of the circumstances surrounding the offence that I have had regard to. That is unsatisfactory given the serious impact a prosecution can and did have on this (or any) individual defendant. In this case the offence occurred on 21 October 2008 and there was no further contact about the offences from the Council until the two summonses were served in February 2010. I was told in Court that since these offences the Council has implemented an enforcement policy to guide its decisions on prosecutions, for which it is to be commended, and I trust these matters have been considered in it.

Orders 48 The Court orders that in matter no 50012 of 2010:

1. The offence is proved but no conviction is recorded and the proceedings are dismissed.
2. The Defendant must pay the Prosecutor's costs of the proceedings of $10,000.
3. The exhibits may be returned. 49 The Court orders that in matter no 50013 of 2010: 1. The offence is proved but no conviction is recorded and the proceedings are dismissed. 2. The exhibits may be returned.

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