Parramatta City Council v Sua trading as Foxy Tree Services

Parramatta City Council v Sua trading as Foxy Tree Services - [2010] NSWLEC 93 - NSWLEC 2010 case summary — Zoe

[29]

10 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 knowing the details of the Parramatta TPO. Mr Sua described the job at the Cheng premises as a "middle-sized job" and stated that for larger jobs he would seek consent. 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 the removal of the tree because of damage to the house. 11 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. 12 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 paperwork for the tree removal, and recalled telling Ms Cheng that maybe Council would just give a warning for breaching the TPO. Ms Cheng 13 The affidavit sworn by Ms Cheng dated 30 March 2010 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 the statement with a report from her general medical practitioner annexed to her affidavit. Ms Cheng also annexed documents from her insurance agency and a contract repair service for a claim 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. 14 When Mr Sua visited her property early on that day (21 October 2008) at some time before 8.30am, 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.

[37]

25 The relevant statutory context for sentencing occurs includes the EP&A Act's objectives of the promotion and orderly and economic use and development of land, s 5(a)(ii), and the protection of the environment, s 5(a)(vi). The protection of vegetation is part of that statutory regime. Prosecutor's submissions 26 While there are two charges, these arise from the one course of conduct and should be dealt with together under the totality principle. The objective gravity fixes the upper limit of a sentence which should never exceed that which can be justified as appropriate in light of the gravity of the crime, Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465. The unlawful removal of trees in Sydney urban areas undermines the regulatory system for control of development and reduces urban amenity. The harm caused was relatively minor in nature, the trees being of moderate size and not having particular heritage significance. The larger tree near the house which was lopped was later removed with the permission of the Council as it was located close to the house on the land and was causing some structural damage to parts of the house. 27 Mr Sua's business is tree lopping and he must be taken to be aware that Council permission is required before a tree can be cut down. His evidence that he was raising money for his church is accepted which takes the object of commercial gain outside the desire for personal financial gain and suggests he is a community-minded person. The Prosecutor submitted the offence committed was at the low end of seriousness for this type of offence. Defendant's submissions 28 Mr Sua was contracted to undertake tree removal by Ms Cheng and did so. The big tree near the house was damaging the house and he considered it was dangerous. The Council later gave consent for it to be removed. He also gave evidence that other trees were leaning near the electricity wires. The trees did not have particular significance. The commission of the offence is minor. Mr Sua is truly remorseful and has fully co-operated with the Prosecutor including making a voluntary statement after being cautioned. Objective circumstances of the offence 29 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. 30 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. These offences are at the less serious end of that spectrum.

[40]

33 In relation to his state of mind on the day of the offences, his evidence is that he knew he needed to see that the Council had given consent for the removal of the large tree near the house and went ahead with the work of getting that tree lopped in preparation for its removal without ensuring that there was such permission. His actions in that regard were deliberate. In relation to the other trees he caused to be removed by employees of the business, his oral evidence is that he considered trees under 10 m could be removed without Council permission, an erroneous belief not based on having made any inquiries at the Council about controls on tree removal. In regard to those trees his actions were careless at best. General deterrence 34 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 this matter given that the preservation of trees in an urban environment is addressed by the making of TPOs by local councils in most metropolitan areas. The importance of preserving urban vegetation has been referred to in a number of cases, for example, Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349 and Manly Council v Taheri [2008] NSWLEC 314. Specific deterrence 35 Consideration as to whether specific deterrence for this Defendant is necessary arises. Mr Sua was engaged in the business of tree lopping at the time of the offences and continues to be so on a part-time basis. Mr Sua gave oral evidence about his understanding of council tree controls generally and his knowledge appeared poor given that at the time of the offence he was engaged in the business of tree lopping full time. His evidence was that he had made no inquiries of the Council and had no specific knowledge of the relevant controls which apply in the Council area. The TPO has the effect that trees over 5m in height require a permit from the Council before their removal. His business is now operated largely by his son but he continues to be involved part-time and the business continues in his name. The events giving rise to the offences demonstrate the importance of a proper understanding of the controls for tree removal in a particular local council area by those engaged in the business of tree removal. 36 Further Mr Sua caused the work to be done by employees of his company without checking that the necessary Council approval had been obtained. Providing a quotation in the morning and doing substantial work involving over ten workers in the afternoon of the same day is very unlikely to enable necessary Council approval to be obtained. Specific deterrence is a relevant factor in this case as there was no clear evidence from Mr Sua suggesting to the Court that there would not be a further similar offence committed. He acknowledged that he would be sure to check that the relevant permit had been obtained in the future. He knew on the day of these offences that it was necessary for that permission to be obtained before cutting down the big tree at least. He had already been in the tree lopping business since 2005 and should have known better. He quoted $6,700 to do the work and on the evidence has been paid at least $4,000 by Ms Cheng. The level of penalty must be more than nominal so that there is a financial disincentive against the commission of such an offence.

[41]

Evenhandedness 37 A principle of sentencing is consistency of sentencing so that like cases should receive like penalties. Consideration of similar cases can be of assistance in informing the range of penalty which should be considered, subject always to the need to consider the individual circumstances of a particular case. There is a useful survey of cases in Cameron v Eurobodalla Shire Council at [105]. All of the cases appear to have more serious objective circumstances than this matter. The least serious such as Holroyd City Council v Skyton Developments Pty Limited [2002] NSWLEC 32; (2002) 119 LGERA 225 and Sutherland Shire Council v Nustas [2004] NSWLEC 608 imposed penalties of $15,000 and $11,000 respectively. Some cases referred to impose penalties for events before 2000 when the maximum penalty increased from $110,000. In Cameron a tree was removed from a public reserve and another lopped to enhance views from the defendant's house. In an appeal from the local court, this Court upheld the penalty of $10,000 imposed. 38 In Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 the importance of persons engaged in the tree lopping business being aware of relevant council controls and complying with these was emphasised. In that case two trees on private land the subject of development consent for subdivision but without consent for tree removal were removed by an arborist at the request of the landowner. A penalty of $11,000 was imposed. Mitigating factors 39 There are a number of mitigating factors that should be taken into account to reduce any penalty, as referred to in s 21A(3) of the CSP Act. Guilty plea (s 21A(3)(k) and s 22 of the CSP Act) 40 Mr Sua pleaded guilty at the earliest opportunity, being the first return date of the summonses on 5 March 2010. A plea of guilty entitles the defendant to a discount in penalty under s 22 of the CSP Act in the range of 10-25 per cent: R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; and R v Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300. Contrition and remorse (s 21A(3)(i) of the CSP Act) 41 I accept that Mr Sua has shown complete contrition and remorse for the offences including on the day of the offences. Cooperation with the Prosecutor (s 21A(3)(m) and s 23 of the CSP Act) 42 The Prosecutor submitted and I accept that Mr Sua cooperated with the Prosecutor in providing a statement.

At a glance

Court

Decision date

Before

Source

Judgment (45 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (25)

Cited By (1)