Ryde City Council v Gavan Guo Xu

SOLICITORS Pike Pike & Fenwick LEGAL REPRESENTATIVES: DEFENDANT Mr. T Hall (Barrister)

SOLICITORS David Kam & Co.

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 50025 of 2003

2 July 2003 Ryde City Council Prosecutor v Gavan Guo Xu Defendant Judgment

1 By summons filed 14 April 2003 the prosecutor ("the council") seeks an order that the defendant answer a charge that he committed an offence against s 125 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") in that the defendant cut down, topped, lopped, injured or wilfully destroyed a eucalypt tree ("the tree") having a height greater than 5 metres without the consent of the council on or about 6 October 2002 at Gladesville. 2 Pursuant to cl 41 of the Ryde Planning Scheme Ordinance ("the RPSO") a Tree Preservation Order ("the TPO") was made by the council on 5 June 1979 which required development consent to be obtained inter alia for the lopping or cutting down of any tree over 3 metres within the Municipality of Ryde. The prosecutor alleges that the defendant breached the provisions of the TPO and that such action was contrary to s 76A of the EP&A Act which prohibits development to be carried out if an environmental planning instrument requires consent. 3 The defendant has pleaded guilty to the charge. Accordingly the Court is only required to determine the appropriate penalty.

The offence 4 Clause 41 of the RPSO authorises the council to adopt a tree preservation order, and relevantly provides:- (1) Where it appears to the responsible authority that it is expedient for the purpose of securing amenity or of preserving existing amenities it may, for that purpose and by resolution, make an order (hereinafter referred to as a "tree preservation order") and may, by like resolution, rescind or vary the order. (2) A tree preservation order may prohibit the ringbarking, cutting down, topping, lopping, removing, or injuring or wilful destruction of any tree or trees specified in the order except with the consent of the responsible authority and any such consent may be given subject to such conditions as the responsible authority thinks fit. … (5) A person who contravenes or causes or permits to be contravened a tree preservation order shall be guilty of an offence. 5 The TPO was published in the New South Wales Government Gazette No. 85 on 11 June 1979 which provided:- MUNICIPALITY OF RYDE - Tree Preservation Order - Notice is hereby given that under the provisions of clause 41 of the Ryde Planning Scheme Ordinance, Ryde Municipal Council has by resolution, dated 5th June 1979, made a Tree Preservation Order with respect to all trees over the height of three (3) metres upon lands within the Municipality of Ryde. Such order prohibits the ringbarking, cutting down, topping, lopping, removing or wilful destruction of a tree or trees without the written consent of Ryde Municipal Council or except as provided in subclause (6) of clause 41 of the said Ordinance. The lands concerned are situated in all those parts of the Municipality of Ryde zoned or reserved under the Ryde Planning Scheme. By order of the Council. K.R.Brown, Town Clerk, Civic Centre, Ryde. 11th June 1979.

6 Notice of the TPO was also published in the Northern District Times on 20 June 1979. 7 The TPO applies to land "situated in all those parts of the Municipality of Ryde zoned or reserved under the Ryde Planning Scheme" which is specified in cl 4 of the RPSO. The offence occurred in Looking Glass Bay Park which is within the City of Ryde as defined in the RPSO.

8 Section 125(1) of the EP&A Act provides:- s 125 (1) Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Director-General, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act. The defendant has committed an offence under s 125(1) of the EP&A Act for failing to comply with s 76A of such Act. The maximum penalty for an offence against the EP&A Act is 10,000 penalty units. Section 17 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act") provides that 1 penalty unit equates to $110. Accordingly the maximum penalty pursuant to s 126 of the EP&A Act is $1,100,000. The Court notes s 126(3) of the EP&A Act which provides that "in addition to or in substitution for any pecuniary penalty imposed" the defendant may be ordered to "plant new trees and vegetation and maintain those trees and vegetation to a mature growth". Facts relating to the offence 9 The defendant was born in China and came to Australia in 1987. The defendant acquired 2 Amiens Street, Gladesville ("the property") in approximately 1999 and has resided at that address since January 2003. The rear yard of the property adjoins Looking Glass Bay Park, which is a public reserve. Looking Glass Bay Park contains fauna subject to the TPO including Australian eucalypt trees.

10 On 6 October 2002 Senior Constable Jordan and Probationary Constable Andrew Hubbard of Gladesville Police Station were called to Looking Glass Bay Park. On arrival the two police officers observed the defendant and two females in the park. The defendant was holding a hand saw and standing on an extension ladder which was propped against the tree. It was observed that the top portion of the tree had been recently cut off and was on the ground next to the tree. The council submits that such portion of the tree was approximately 7.2 metres in height. 11 The police officers asked the defendant what he was doing. In reply the defendant said that he was making the tree "lower, flatter" and made a motion with his hands to indicate his intention to lower the tree. The defendant ceased cutting the tree when the police arrived. 12 The defendant admits that he lopped the top portion of the tree but that the size of the removed portion was 2.2 metres. 13 No excuse is offered for the defendant's conduct. The Court finds that the commission of the offence took place for the purpose of enabling the defendant to obtain improved views of Looking Glass Bay from his residence. The defendant did not suggest that he was unaware of the requirements of the TPO. The Court considers that the conduct of the defendant in lopping the tree on a council reserve to be a serious matter. The Court also draws the inference that the defendant ceased his illegal activities only because of the intervention of the police.

Sentencing considerations 14 The Court notes the purposes of sentencing an offender as provided in s 3A of the Sentencing Procedure Act. A sentence should contain an element to deter others from committing a similar offence (s 3A(b) of the Sentencing Procedure Act), to denounce the conduct of the defendant (s 3A(f) of the Sentencing Procedure Act) and to acknowledge the harm to the environment and the community (s 3A(g) of the Sentencing Procedure Act). Mitigation

15 In determining the appropriate sentence the Court takes into account the following mitigating factors pursuant to s 21A(3) of the Sentencing Procedure Act.

16 The Court must take the defendant's guilty plea into account (s 22 and s 23A(3)(k) of the Sentencing Procedure Act) but it is not mandatory for the Court to exercise its discretion to provide a reduction in sentence for a guilty plea: see Cameron v R (2002) 76 ALJR 382 per Kirby J at p 393. The Court will consider the circumstances of each case and decide whether the plea reflects genuine remorse and has been beneficial from a utilitarian perspective: see R v Thomson; R v Houlton (2000) 49 NSWLR 383 at p 415. 17 The Court notes that the plea of guilty was entered at an early stage of the proceedings, namely on the first return date of the summons. In these circumstances a reduction in penalty will be allowed. Good character 18 The Court must determine whether the defendant is "of otherwise good character" and if established take such consideration into account as a mitigating factor in the sentencing process: see Ryan v The Queen (2001) 206 CLR 267 per McHugh J at p 275 and p 278; s 21A(3)(f) of the Sentencing Procedure Act. 19 The defendant has no previous convictions (s 21A(3)(e) of the Sentencing Procedure Act) and is unlikely to re-offend (s 21A(3)(g) of the Sentencing Procedure Act). Three character references have been tendered in evidence which also establish that the defendant is "of otherwise good character".

Fines Act 1996 20 No evidence of the means of the defendant has been adduced. In these circumstances the Court can make no findings pursuant to s 6 of the Fines Act 1996. The Court notes however that the defendant holds a senior position, namely that of Deputy General Manager of Aims Home Loans. The Court therefore infers that the defendant will be able to pay a penalty imposed for the offence.

Penalty 21 The defendant has requested that he be granted the benefit of s 10 of the Sentencing Procedure Act. A breach of the TPO is a serious offence: see Holroyd City Council v Skyton Developments Pty Ltd (2002) 119 LGERA 225 at p 229. The offence did not result from inadvertence, but resulted from deliberate conduct upon a tree apparently in good condition. Although the environmental damage sustained was not major, the Court considers that the culpability of the defendant is not sufficiently low to warrant the exercise of the Court's discretion in favour of the defendant: see Penrith City Council v Re-Gen Industries Pty Ltd (2000) 107 LGERA 331 at p 336. For these reasons the Court rejects such application. 22 The Court notes that only one tree was damaged and that is regenerating. Accordingly the penalty will reflect the fact that only minor damage was sustained. Nevertheless the Court is mindful that there "must be an element of general deterrence in dealing with significant breaches of the planning laws": see Cooper v Coffs Harbour Council (1997) 97 LGERA 125 per Howie AJ at p 143; Ryde City Council v Calleija (1998) 99 LGERA 360 per Lloyd J at p 366. 23 The Court considers that the appropriate penalty is $10,000. Although only one tree was damaged such penalty recognises that the conduct of the defendant was deliberate and took place on a public reserve. In view of the early plea of guilty the penalty is reduced to the sum of $7,500. The Court considers, that it is unnecessary to make an order pursuant to s 126(3) of the EP&A Act. Costs 24 The defendant is ordered to pay the council's costs.

1. The defendant is convicted as charged;
2. The defendant is ordered pay a penalty of $7,500;

3. The defendant is to pay the prosecutor's costs in such sum as may be agreed or otherwise assessed in accordance with the regulation made pursuant to the Land and Environment Court Act 1979;

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.