Shoalhaven City Council v Hayes

The legislative breaches

1. The charges allege that Mr Hayes committed breaches of: 1. s 125 of the Environmental Planning and Assessment Act 1979 (the EP&A Act); and 2. s 12 of the Native Vegetation Act 2003 (the Native Vegetation Act).
2. It is to be observed that, although the EP&A Act has had its provisions rearranged and renumbered, with these changes having been effective on and from 1 March 2018, it is appropriate to refer (as Charge 1 does) to the provisions requiring consideration in these proceeding by the numbering system which applied prior to the 1 March 2018 changes.
3. It is also to be observed that, although the Native Vegetation Act was repealed by s 3 of the Local Land Services Amendment Act 2016 with effect from 25 August 2017, the repeal has no effect on the two charges brought against Mr Hayes under the now repealed Act.
4. It is not necessary to set out the two relevant provisions.

The Prosecutor's Statement of Facts

1. The Prosecutor tendered a Statement of Facts (the SOF) and the document became Exhibit B. Although Exhibit B was not an agreed document, Mr Hayes did not object to its tender. Nor, in either of his two short periods of oral evidence, did he cavil with what was set out in the document.
2. As Exhibit B is not a lengthy document, and it provides a sufficient and comprehensive description of the nature of Mr Hayes' offending conduct and the circumstances in which it came to the attention of the Council, it is appropriate to reproduce its terms in their entirety. Exhibit B was in the following terms: 1 Bachar Dib is, and was at all relevant and material times, the registered proprietor of land situated at Catherine Street, Comberton in the state of New South Wales, known as Lot 62 in DP 755928 (Lot 62) and Lots 1 and 2 in DP1008950 (Lot 1 and Lot 2). 2 Between September 2015 and March 2016, Bachar Dib engaged the defendant to carry out work on Lots 62, 1 and 2. 3 The Environmental Planning Instrument that applies to Lots 62, 1 and 2 is the Shoalhaven Local Environmental Plan 2014 (the SLEP). 4 Lots 62, 1 and 2 are split-zoned lots, all of which are zoned part E2 Environmental Conservation and part RU2 Rural Landscape under the SLEP. 5 The prosecutor is a local council and body politic of the State of New South Wales, known legally as Shoalhaven City Council (Council). 6 Lots 62, 1 and 2 are located within the local government area of Shoalhaven. 7 The defendant, Luke Anthony Hayes, is a natural person, capable of being prosecuted for an offence against section 125(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act). Facts relevant to Charge 1 8 Clause 5.9 of the SLEP provides for the 'preservation of trees or vegetation' within the local government area of Shoalhaven. 9 Clause 5.9(2) of the SLEP provides that clause 5.9 will apply to species or types of trees prescribed by a development control plan made by the Council. 10 Clause 5.9(3) of the SLEP prohibits the ringbarking, cutting down, topping, lopping, removing, injuring or wilful destruction of any tree or other vegetation to which any such development control plan applies without the authority conferred by development consent or a permit granted by Council. 11 Shoalhaven Development Control Plan 2014 (the SDCP) was made by Council on 14 October 2014 and Chapter G4 of the SDCP prescribes trees and other vegetation for the purpose of clause 5.9 of the SLEP. 12 The area shown with a patterned overlay on the aerial photograph annexed and marked "A" to the Summons filed in these proceedings, which comprises part of Lots 1 and 2, is mapped by Chapter G4 of the SDCP (Map Sheet No. 20) as an area described as 'Endangered Ecological Community'. 13 Between September 2015 and March 2016, Bachar Dib engaged the defendant to carry out development on Lots 1 and 2. 14 The defendant engaged subcontractors to assist in carrying out the development works, including Russell Kane Willis and Nathan John Behrens. 15 The development included the cutting down and removal of 26 trees from Lots 1 and 2. 16 The 26 trees that were cut down and removed were from within an area mapped 'Endangered Ecological Community' for the purpose of the SDCP. 17 Those 26 trees were prescribed for the purpose of clause 5.9 of the SLEP. 18 It is an offence under section 125 of the EPA Act to remove trees that are prescribed for the purpose of clause 5.9 of the SDCP. Facts relevant to Charges 2 and 3 19 The Native Vegetation Act 2003 (the NV Act) applies to Lots 62, 1 and 2. 20 It is an offence under section 12 of the NV Act to clear native vegetation unless the clearing activity is carried out in accordance with a development consent or a property vegetation plan. 21 Between September 2015 and March 2016, the Bachar Dib engaged the defendant to carry out clearing work on Lots 62. 22 The defendant engaged subcontractors to assist in carrying out the clearing work, including Russell Kane Willis and Nathan John Behrens. 23 The defendant, and/or his servants or agents with his authority, cut down three (3) trees on Lot 62 in the location identified on the aerial photograph annexed and marked "B" to the Summons filed in these proceedings, being of a eucalypt species that existed in New South Wales before European settlement, in breach of section 12 of the NV Act. 24 The defendant, and/or his servants or agents with his authority, cut down and removed 73 trees on Lots 1 and 2 from the locations identified on the aerial photograph annexed and marked "C" to the Summons filed in these proceedings, being of a species that existed in New South Wales before European settlement, in breach of section 12 of the NV Act. 25 The defendant caused or permitted the clearing of the three (3) trees to take place on Lot 62. 26 The defendant caused or permitted the clearing of the 73 trees to take place on Lots 1 and 2.

The evidence

1. The Prosecutor read the whole or relevant parts of affidavits from a number of Council witnesses. The evidence of these witnesses was directed to providing a proper foundation for the material contained in the SOF which had been tendered by the Prosecutor. Those who provided written evidence on behalf of the Council were:

• Nathan Behrens (an employee/sub-contractor to Mr Hayes)
• Elizabeth Dixon (Senior Environmental Planner)
• Angela Jenkins (Threatened Species Officer)
• Phillip McNeice (Compliance Ranger)
• Anthony Pearman (Team Supervisor - Compliance)
• Ian Staples (Compliance Ranger)
• Lauren Turner (Team Coordinator - City Strategy Planning)

1. In addition, because Mr Hayes is an undischarged bankrupt, the Prosecutor also needed to call Ms Olivia Yeatman, a solicitor employed by the Council's legal representatives. Ms Yeatman gave oral evidence concerning a conversation in which she had participated, which conversation was with an employee of the company, PPB Advisory, with which Mr Hayes' Trustee in Bankruptcy is associated. It will be necessary, later in this decision, to deal with the fact of Mr Hayes' bankruptcy and its relevance in these proceedings at a little length.

The written evidence supporting Exhibit B

1. I have earlier set out the names and titles of those council employees whose affidavits were read, in whole or part, as providing an appropriate evidentiary framework to permit me to conclude that that which had been set out in Exhibit B had an accurate and sufficient evidentiary basis to found convictions of Mr Hayes on each of the charges which had been laid against him.
2. In order to establish that the evidence did provide such an appropriate foundation, the Prosecutor took me through the relevant portions of each of the affidavits which had been read (whether in whole or in part) from those council employees. The Prosecutor carefully took me to the primary material in the affidavits, as well as to annexed documents, photographs, maps and marked-up air photos which had been annexed to and referenced in relevant portions of the narrative elements of the affidavit evidence.
3. The material to which the Prosecutor took me comprehensively dealt with Mr Hayes' offending conduct on each of Lots 1, 2 and 62.
4. It is unnecessary to traverse, at any length, this material. It is, however, appropriate to deal with four matters arising from this affidavit evidence. Those matters are: 1. The cutting down of three hollow-bearing trees (dealt with in more detail below); 2. The photographic evidence, at Annexure M of the affidavit of Elizabeth Dixon, shows the stumps of each of the trees that had been cut down. These photographs provide a basis for founding Charges 1 and 3. The stumps depicted were each of the size and diameter demonstrating that that which had been cut down was protected by the relevant provisions in cl 5.9 of the Shoalhaven Local Environmental Plan 2014 and Chapter G4 of the Shoalhaven Development Control Plan 2014; 3. The mapping which demonstrated the location of the endangered ecological community present on portion of Lot 62 which had been the subject of clearing activities giving rise to Charge 2; and 4. There was evidence of the threatened/endangered fauna whose habitat and foraging range was likely to have been impacted by the clearing activities with respect to which Mr Hayes had been charged.
5. I turn to the question of whether or not I am satisfied, beyond reasonable doubt, that three hollow-bearing trees were cut down as part of the clearing activities undertaken by Mr Hayes.
6. The affidavit of Elizabeth Dixon included, as Annexure I, three sets of photographs of the tree elements which included hollows suitable in size to the potential habitat. Two of the sets of photographs clearly show that the tree elements depicted had been the subject of clean cuts by some form of saw. Although, with respect to the third set of photographs, a clean-cut end was not depicted, it was the uncontradicted evidence of the deponent of this affidavit that these three sets of photographs came from separate trees and that those trees had been cut down.

Mr Hayes' pleas of guilty

1. On 29 September 2017, Mr Hayes entered pleas of guilty on each of the charges. These pleas were entered before Robson J as the List Judge on that date. There are two matters to be observed concerning Mr Hayes' guilty pleas.
2. First, I am satisfied, on the basis of the SOF and the affidavit evidence read for the Prosecutor during the sentencing hearing, that the guilty pleas entered by Mr Hayes are ones properly made and appropriately founded on the facts supporting the offences charged. I am, therefore, satisfied that it is appropriate to convict Mr Hayes of each of the three offences with which he has been charged.
3. Second, critical to this sentencing process, it is accepted by the Prosecutor that, for the purposes of s 22 of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act), Mr Hayes' pleas of guilty were entered at the earliest possible opportunity. The consequences of this, for the sentencing process, are later expressly dealt with.

Introduction

1. As Mr Hayes was unrepresented, I informed him, at the commencement of the sentencing hearing, that I would assist him by explaining procedural matters as they arose and that I would answer any questions he had concerning such procedural matters. I also expressly advised him that the assistance to be provided to him was so confined and that I was not permitted to provide him with any assistance with respect to the merits of his case.
2. I also explained to him the difference between evidence and submissions, as that distinction would become relevant at two points in the trial: the first being if he elected to give evidence, and the second when it came to him making submissions concerning his personal circumstances and other matters potentially relevant to the determination of the appropriate penalties to be imposed on him.
3. As earlier explained, the prosecution evidence was adduced by affidavit, with none of the deponents having been required for cross-examination. I explained to Mr Hayes his right to object to material in the affidavits upon which the Prosecutor proposed to rely.
4. As the Prosecutor was proposing to take me through the affidavits to establish a proper evidentiary basis for that which was set out in the SOF (as earlier set out), I indicated to Mr Hayes that I would hear any objections to the affidavit material after the Prosecutor had taken me to the relevant portions relied upon to provide a foundation for the SOF. I informed him that the material would not formally be admitted as evidence until after he had had the opportunity to raise any objections.
5. The evidence was then adduced using this process and Mr Hayes raised no objection to any portion of it.

Giving of oral evidence

1. After the close of the Prosecutor's case, I advised Mr Hayes that he was under no obligation to give any oral evidence (Mr Hayes not having filed any affidavit material from himself or any other person) and that, if he chose not to give evidence, no inference would be drawn as a consequence of him not doing so.
2. I also indicated to Mr Hayes that, if he did elect to give evidence, this would automatically trigger the right of the Prosecutor to cross-examine him and that that right was wide-ranging and would not be confined merely to those matters about which he might choose to give oral evidence.
3. Finally, I informed Mr Hayes that I proposed to let him give evidence, if he elected to do so, in narrative form. I explained that the consequence of permitting him to give evidence in this fashion would not require him to make any distinction between elements of what he might say which were evidence and other elements which might properly be categorised as being submissions. I explained that the Prosecutor and I would regard anything he said which was evidence as being such, whilst we would treat anything in the nature of submissions on the basis that they were being made as submissions. The Prosecutor raised no objection to the following of this course.

Mr Hayes gave oral evidence.

1. Mr Hayes gave oral evidence in two tranches. The first, at the close of the Prosecutor's case, is set out later and considered as appropriate in my addressing the relevant factors arising from s 22A(3) of the Sentencing Procedure Act.
2. However, it is also to be observed that, when Mr Hayes commenced his closing submissions, it was clear that he proposed to address his personal financial circumstances. I indicated to him that, if he wished to do so, this would only be appropriate if he returned to the witness box to do so. As a consequence, Mr Hayes gave a second tranche of oral evidence. This second tranche is set out and dealt with in my consideration of matters arising in connection with s 6 of the Fines Act 1996 (the Fines Act).
3. It is to be noted that the Prosecutor did not seek to cross-examine Mr Hayes at the conclusion of his giving of either tranche of his oral evidence.

The legislative provisions

1. A number of provisions of the Sentencing Procedure Act are relevant, as is one provision in the Fines Act. As Mr Hayes is an undischarged bankrupt, several elements of s 82 of the Bankruptcy Act 1966 (Cth) (the Bankruptcy Act) also require consideration.
2. The first relevant provision in the Sentencing Procedure Act is s 3A Purposes of Sentencing. This provision is in the following terms: 3A Purposes of sentencing 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.
3. The second provision is s 21A Aggravating, Mitigating and Other Factors in Sentencing. It is not necessary, at this point, to set out the totality of this provision, but it will be necessary to deal with the relevant elements of it in my subsequent sentencing analysis.
4. The final relevant provision of the Sentencing Procedure Act is s 22, a provision that requires me to take into account Mr Hayes' guilty plea. This provision is in the following terms: 22 Guilty plea to be taken into account (1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account: (a) the fact that the offender has pleaded guilty, and (b) when the offender pleaded guilty or indicated an intention to plead guilty, and (c) the circumstances in which the offender indicated an intention to plead guilty, (d) and may accordingly impose a lesser penalty than it would otherwise have imposed. (1A) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence. (2) When passing sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, and make a record of, its reasons for not doing so. (3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions. (4) The failure of a court to comply with this section does not invalidate any sentence imposed by the court.
5. The fourth relevant statutory provision is that contained in s 6 of the Fines Act. This provision is in the following terms: 6 Consideration of accused's means to pay In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount.
6. The second tranche of oral evidence given by Mr Hayes is relevant to my consideration of this provision of the Fines Act.
7. The final relevant provisions are in the Bankruptcy Act and are in the following terms: 82 Debts provable in bankruptcy (1) Subject to this Division, all debts and liabilities, present or future, certain or contingent, to which a bankrupt was subject at the date of the bankruptcy, or to which he or she may become subject before his or her discharge by reason of an obligation incurred before the date of the bankruptcy, are provable in his or her bankruptcy. (1A) …. (2) …. (3) Penalties or fines imposed by a court in respect of an offence against a law, whether a law of the Commonwealth or not, are not provable in bankruptcy.
8. Mr Hayes' evidence concerning his financial circumstances and what is to be made of it, in combination with the statutory provision reproduced immediately above, require later more detailed consideration.

The maximum penalties

1. The maximum penalties applicable to each of the offences for which Mr Hayes has been charged are $500,000. The maximum penalty reflects a public expression by the Parliament of the seriousness of the offence charged (Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698).

Aggravating factors

1. The Sentencing Procedure Act provision in s 21A(2) earlier noted requires me, in s 21A(2), to consider whether there are any aggravating factors requiring to be taken into consideration. The two potentially relevant aggravating factors (contained in s 21A(2)(g) and (o)) require my consideration of whether: 1. the harm to the environment caused by Mr Hayes' unlawful activities was substantial or not; and 2. the offending conduct was carried out in expectation of financial gain.
2. The Prosecutor did not submit that either of these potentially relevant aggravating factors was engaged by Mr Hayes conduct.
3. With respect to the first of them, the extent of the harm to the environment, I have carefully examined the Prosecutor's evidence concerning the nature of, and impact caused by, the vegetation clearing and tree-cutting undertaken by Mr Hayes.
4. Mindful of the fact that, for the establishment of a factor of aggravation, I must be satisfied beyond reasonable doubt to conclude that it is engaged, I am unable, on very fine balance, to be satisfied that the impact of Mr Hayes' conduct caused substantial harm to the environment. Whilst there was undoubtedly a localised habitat impact and a localised impact on an endangered ecological community, I cannot be satisfied on the basis of the Prosecutor's evidence that, in the broader context of the locality beyond the boundaries of the allotments where the offences occurred, that the harm to the environment was substantial.
5. Next, s 21A(2)(o) makes it clear that the commission of an offence for (or, as in this case, anticipation of) financial gain is to be regarded as a factor of aggravation to be taken into account in determining the appropriate sentence for the offence.
6. In this regard, as earlier noted, Mr Hayes expected to receive financial benefit for the removal of these trees, if only by being able to utilise the wood for his firewood business.
7. Mr Hayes also expected to be reimbursed his costs associated with his vegetation clearing and tree-cutting activities he was undertaking at the request of the owner of the three parcels of land involved. This is clear from portion of an e-mail from Mr Hayes to Ms Yeatman of 27 October 2017 (Annexure C to Ms Yeatman's affidavit). Mr Hayes wrote, relevant to the reimbursement arrangement he had with the owner of the land: I was engaged by Mr Dibb (the property owner) to commence work at the property with an agreement for him to pay for materials bought into the job for roads etc... We had sent off invoices for the materials with promises the bills would be paid but never did.
8. It is clear that Mr Hayes anticipated that his costs would be reimbursed and that he would profit from the recovery of firewood from the fallen trees.
9. Although the Prosecutor did not make a positive submission that I should make a finding of aggravation concerning Mr Hayes' expectation of receiving a financial benefit, the Prosecutor also did not submit that I should not make such a finding. I am satisfied that the evidence establishes, beyond reasonable doubt, that such a finding is open to be made.
10. As a consequence, I find that the evidence establishes, beyond reasonable doubt, that Mr Hayes committed the offence in anticipation of financial gain and that this is to be taken as an aggravating factor.

Introduction

1. The Sentencing Procedure Act provision in s 21A requires me, by s 21A(3), to consider whether there are any relevant, mitigating factors requiring to be taken into consideration. Where a mitigating factor is established, this is to weigh in Mr Hayes' favour in my instinctive synthesis of all the factors requiring consideration in determining the appropriate starting sentence for each offence. A range of matters may require consideration for this assessment. I turn to deal only with those that are here potentially engaged.

Prior convictions (s 21A(3)(e))

1. Mr Hayes has no prior convictions for environmental offences and this is a factor weighing in his favour.

Mr Hayes' character (s 21A(3)(f))

1. No character evidence has been provided on behalf of Mr Hayes and, thus, this factor plays no part in my sentencing consideration.

Contrition and remorse (s 21A(3)(i))

1. Mr Hayes has not expressed any remorse for his unlawful conduct.
2. For completeness, it is to be observed that the transcript records the following (Transcript, 17 April 2018, page 29, lines 36 to 44): NASH: …Your Honour doesn't have any evidence of contrition or remorse, but in any event, as I think your Honour has observed certainly in the past, there's been no offer and certainly no evidence of an attempt to, for example, revegetate the property which would DEFENDANT: We did try. NASH: That hasn't occurred or there's no evidence that has occurred, so I'll leave that to Mr Hayes to address your Honour upon…
3. As Mr Hayes did not return to expand on this interjection during the course of his oral evidence, this exchange provides me with no assistance in addressing the question of whether there was any genuine contrition or remorse on Mr Hayes' part for the unlawful activities he had undertaken.
4. The absence of any expression of contrition or remorse by Mr Hayes is a matter which requires consideration when I come to assess the extent to which it is necessary to incorporate, in the sentences I determine, any element necessary to deter Mr Hayes from undertaking any activities in the future of the nature that gave rise to these offences.

Entry of the guilty plea (s 21A(3)(k))

1. The Prosecutor accepts that Mr Hayes entered his pleas of guilty at the earliest appropriate opportunity and that, as a consequence, these pleas have had significant utilitarian value, entitling Mr Hayes to the maximum discount permissible of 25% of the penalty that would otherwise be appropriate to be imposed (R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 383).

Cooperation with the Prosecutor (s 21A(3)(m))

1. The Prosecutor accepts that Mr Hayes has cooperated, fully and appropriately, to the extent requested by the Prosecutor. This cooperation had been in the making of relevant admissions against his interest in his record of interview with officers of the Council.
2. The Prosecutor conceded that Mr Hayes had not been requested to provide any greater degree of cooperation.

Introduction

1. I have earlier set out the terms of s 3A Purposes of Sentencing of the Sentencing Procedure Act. It provides, in s 3A(b), that one of the purposes to be achieved by sentencing an offender is "to prevent crime by deterring the offender and other persons from committing similar offences". I therefore turn to consider the matters of specific deterrence for Mr Hayes and that of broader, general deterrence.

Specific deterrence

1. In his first tranche of oral evidence, Mr Hayes addressed the basis of the activities he had undertaken giving rise to these three charges. He said (Transcript, 17 April 2018, page 27, lines 11 to 38): Q. What do you wish to say to me? A. I just find there were a few things that I would like to make a little clearer in the way that we got taken upon to do the job. Something that was not looked at the whole time was the fact that we made contact with local land services and we did a drive around with them, around the property. This was my first clearing job that I was engaged to do so James did, Basher Dibb, Mr Dibb, whatever he wants to be called, actually made contact with local land services and we met with Vanessa out on the property. She gave us some paper work and some guidelines for us to follow and as far as I knew that's what we had to do. From my understanding local land services provide the guidelines on what you can and can't do when you're clearing land. I wasn't aware that we needed to go and get a permit off the council. Q. Yes? A. At no stage was I asked to stop work by Mr Dibb and wrapped things up. This job that we had done we never got a cent for from the client. It did put me into financial hardship, did send me into bankruptcy and I've no further to say, your Honour.
2. As earlier noted, the Prosecutor did not cross-examine Mr Hayes concerning this evidence.
3. In an e-mail from Mr Hayes to Ms Yeatman of 27 October 2017 (Annexure C to Ms Yeatman's affidavit), Mr Hayes wrote, relevant to his conduct: I was engaged by Mr Dibb (the property owner) to commence work at the property with an agreement for him to pay for materials bought into the job for roads etc. We had various visits from the property owner throughout the job and he never had an issue with the work we where partaking. … With my significant investment in the job we continued to do our works of selectively cutting down trees for my firewood business. In the meantime the property owner organised a visit from venessa from government agency (Local Land Services). We went for a drive around the property with venessa and her offsider accompanying Mr Dibb and myself to show Mr Dibb where he can and cant cut down trees and also handed out the guidlines to do so.
4. Mr Hayes assumed that no further permits were required. This was incorrect, as these charges clearly lay bare. Although only undertaking the work to harvest trees for his firewood business, Mr Hayes should have independently satisfied himself that all necessary approvals were held prior to him commencing his activities.
5. As these are strict liability offences, his failure to check that all necessary permits and consents had been given for the activities he proposed to undertake, rather than merely relying assumptions that no further approvals were required, provides no excuse.
6. The fact that Mr Hayes has shown no contrition or remorse for his offending conduct provides additional weight to the necessity for penalties to be imposed that will deter Mr Hayes from any repetition of similar offending conduct in the future.
7. It is, therefore, necessary to reinforce Mr Hayes' understanding of this requirement that there be an element of specific deterrence in the sentence to be imposed.

General deterrence

1. It is also necessary to send a broader message of the importance of upholding the integrity of the planning system, generally, and of the development consent system requiring approval for vegetation clearing and tree removal (Mosman Municipal Council v Menai Excavations Pty Limited (2002) 122 LGERA 89; [2002] NSWLEC 132 at [35]). Such reinforcement of the necessity to obtain necessary permits and consent is not only to be directed to others who have firewood harvesting and selling businesses or vegetation removal businesses, but also to the broader public who might contemplate commissioning such contractors to undertake tree removal and/or vegetation clearing activities.

Introduction

1. The appropriate process to be undertaken in sentencing Mr Hayes is one which requires me to perform an instinctive synthesis of all relevant factors, objective and subjective, in order to determine what might be appropriate starting penalties to punish Mr Hayes' offending conduct (Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25). This instinctive synthesis requires me to have regard to whereabouts within a range of seriousness the offending conduct for each charge should be regarded as falling, having regard to the maximum penalty of $500,000 for each offence.
2. Camilleri's Stock Feeds (at [698]) confirmed 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. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the scale of penalty set by the legislature from zero to the maximum.
3. The upper limit for the range within which the sentence for each offence falls must not exceed that which is proportionate to the gravity of the offence in light of its objective circumstances (Veen v The Queen (No 2) 164 CLR 465; [1988] HCA 14). The lower limit is fixed to permit allowance for subjective factors, as those relevant to the offender cannot produce a sentence that fails to reflect the objective seriousness of each of the offences.

Introduction

1. Consistent with this, it is necessary to categorise the objective seriousness of the behaviour constituting the offence, in these proceedings, as falling somewhere within a range between the "least bad case" and the "worst category" of such conduct.

The Prosecutor's submissions

1. The Prosecutor dealt with the question of how it submitted I should characterise the offending conduct, saying, in the written submissions: 17 The offences are objectively serious. The facts show that the defendant engaged in at least negligent conduct in carrying out the tree removal and clearing work without development consent. 18 The offences caused actual harm to the environment. A total of 102 trees [corrected to 77 trees in oral submissions] were cut down and removed from the Land. This is not an insignificant number of trees. 19 Further, the defendant was engaged on a commercial basis to carry out the tree removal works. In other words, the defendant profited [corrected to be "expected to profit" in oral submissions] from the carrying out of the offences. 20 Taking all of these matters into account, the prosecutor accepts that the offence may be treated as within the lower to middle range, but not at the lowest level of objective seriousness.

Consideration

1. I have earlier noted that s 21A(2)(g) of the Sentencing Procedure Act required consideration of whether the harm occasioned by the vegetation clearing (including vegetation in an endangered ecological community) which also encompassed the cutting down of the 77 trees (including three hollow-bearing trees) was substantial or not for the purposes of constituting a factor of aggravation.
2. The map and photographic evidence adduced by the Prosecutor clearly demonstrate the nature and extent of the tree-cutting/clearing involved for each charge.
3. Although the area cleared on Lot 62 did not comprise either of the endangered ecological communities in the vicinity, nonetheless, the area cleared was of the order of 300 metres by 150 metres and included three hollow-bearing trees. It was Ms Dixon's evidence that: Hollow-bearing trees are generally mature trees of 100 years or more. They provide important breeding and sheltering habitat for a range of threatened species known to occur within a 5 km radius of lot 62.
4. Ms Dixon estimated that the area cleared on Lot 62 was approximately 5.2 hectares ([25] of her affidavit).
5. Ms Dixon explains, in [40] of her affidavit, why she concluded that Lots 1 and 2 were within the home range of Yellow-Bellied Gliders, a threatened species.
6. Unlike the activity which had taken place on Lot 62, the activity which had taken place on Lots 1 and 2 appeared to be selective tree removal over an area of 40 to 50 hectares (at [49] of her affidavit).
7. The map at Annexure Q to Ms Dixon's affidavit shows the extent of the area within which trees had been cut on Lots 1 and 2. The map at Annexure O showed the location of the tracks made to facilitate the tree-cutting and the location and general diameter of the trees cut. It is clear from these maps that tracks were driven into, and trees cut in, areas of two endangered ecological communities (Swamp Sclerophyll Forest on Coastal Floodplains and Swamp Oak Floodplain Forest).
8. As a consequence, although each of the three offences with which Mr Hayes has been charged can be, in a specific sense, differentiated, they are, in my view, nonetheless, of equal culpability when regard is had to the nature, location and extent of the activities giving rise to each charge. It is not appropriate, in this context, to endeavour to impose differential penalties with respect to each of the three charges (particularly in the context that all these activities arose during a single course of conduct).
9. Although not constituting a factor of aggravation, the cutting down of such a large number of substantial trees (as able to be seen in the photos of the stumps); clearing of vegetation in an endangered ecological community; and potentially impacting on the habitat of endangered fauna could not be regarded as of minor impact. The conduct was not inadvertent.
10. On the other hand, although not to provide an excuse, the presumption by Mr Hayes that the clearing was endorsed by "venessa" from Local Land Services does provide some understanding for the presumption he made.
11. As a consequence, I am satisfied that: 1. The conduct giving rise to each charge is of equal seriousness - as the conduct arose in the course of a single sequence of events (despite the fact that the time period founding Charge 2 fell within but did not cover the whole of the time period founding Charges 1 and 3); and 2. The conduct should only be characterised as being at the upper end of the low range of seriousness (this finding being consistent with but not in the same terms as was submitted by the Prosecutor).

The Prosecutor's legal costs and investigation costs and expenses

Legal costs

1. Before turning to consider Mr Hayes' subjective financial circumstances, it is also appropriate to note that the Prosecutor has sought an order that Mr Hayes pay the Prosecutor's costs, an ordinarily appropriate order to make in proceedings such as these.
2. The power to make such a costs order is conferred by s 257B of the Criminal Procedure Act 1986. Absent agreement between the Prosecutor and Mr Hayes as to the quantum of those costs (as there is no such agreement), costs are to be as assessed if no subsequent agreement is reached (s 257G).
3. The estimate provided to me of the Prosecutor's costs (excluding investigation costs - although such costs are also relevantly applicable as elsewhere discussed) is of the order of $80,000 to $90,000. The extent to which a convicted person will be liable for the Prosecutor's costs is a matter to be taken into account when determining the appropriate penalty otherwise to be imposed (EPA v Barnes [2006] NSWCCA 246).
4. In these proceedings, there is no valid reason to depart from the usual approach and a costs order is to be made.

Investigation costs and expenses

1. I pointed out to the Prosecutor that any order that Mr Hayes pay the Council's investigation costs and expenses was necessarily subject to my satisfaction as to the availability of power to make such an order with respect to each of the charges.
2. I raised this matter because I was aware that the incorporation into the EP&A Act, by reference in s 126(2A), of the range of additional order-making powers in Pt 8.3 of the Protection of the Environment Operations Act 1997 (the POEO Act) had occurred prior to the date of commission by Mr Hayes of the offences with which he had been charged pursuant to s 125(1) of the EP&A Act. However, I indicated to the Prosecutor that I would need to establish whether or not there had been any similar insertion by reference into the Native Vegetation Act.
3. The relevant provision of the POEO Act is s 248. It is in the following terms: 248 Orders regarding costs and expenses of investigation (1) The court may, if it appears to the court that a regulatory authority has reasonably incurred costs and expenses during the investigation of the offence, order the offender to pay to the regulatory authority the costs and expenses so incurred in such amount as is fixed by the order.
4. The offences with which Mr Hayes has been charged took place between September 2015 and March 2016 and between September 2015 and October 2015.
5. The relevant changes to s 126 of the EP&A Act were made by the Environmental Planning and Assessment Amendment Act 2014 No 79, which commenced 31 July 2015. Section 126(2A) of the EP&A Act now provides: Part 8.3 of the Protection of the Environment Operations Act 1997 (Court orders in connection with offences) applies to an offence against this Act or the regulations in the same way as it applies to an offence against that Act or the regulations under that Act, but only in relation to proceedings before the Court and subject to any modifications prescribed by the regulations under this Act.
6. The Native Vegetation Act did not expressly address investigation costs, but simply provided, in s 12(2): A person who carries out or authorises the carrying out of clearing in contravention of this section is guilty of an offence and is liable to the maximum penalty provided for under section 126 of the EPA Act for a contravention of that Act.
7. As can be seen, there has been no importation by reference of the relevant element of the POEO Act into the Native Vegetation Act.
8. The position that therefore applies with respect to investigation costs and expenses is that the power exists to make such an order with respect to the activities undertaken on behalf of the Prosecutor for the purposes of establishing a proper evidentiary basis for the charge laid under the EP&A Act, but no such basis was available under the Native Vegetation Act. Therefore, that portion of the investigation costs and expenses relating to the charges under the Native Vegetation Act cannot be ordered to be recoverable from Mr Hayes.
9. It is clear from the affidavit evidence in these proceedings that the investigation activities concerning all three charges laid against Mr Hayes were necessarily intertwined.
10. It seems to me that, in order to avoid unnecessary further expense in dissecting the Prosecutor's investigation costs and expenses and assign them to each of the charges for the purposes of establishing what should be Mr Hayes' liability to contribute toward reimbursing the Prosecutor for those investigation costs, I should take a pragmatic view to the apportionment of those costs and expenses in the order to be made with respect to them.
11. As a consequence, as only one of the three charges laid against Mr Hayes, and for which he is to be convicted in these proceedings, was a charge laid under the EP&A Act, the appropriate order for me to make is that Mr Hayes is to be liable to reimburse the Prosecutor for one-third of the Prosecutor's investigation costs and expenses.

Mr Hayes' financial capacity

1. As earlier noted, after the conclusion of the prosecution's closing submissions, Mr Hayes gave oral evidence concerning his financial circumstances. It is appropriate to reproduce that brief evidence in full. Mr Hayes said (Transcript, 17 April 2018, page 34, lines 3 to 11): DEFENDANT: So my financial situation is that I work for a company. They supply me with this work all the time. I only get around $400 a week which allows me to live pretty well. I don't have a lot of assets to my name. The bankruptcy took quite a lot of it. They left me with the small things and I don't have any way of really coming up with a whole lot of money straightaway like that. The bankruptcy doesn't allow me to come up with a lot of money like that either, that's the other side of things. I have one dependent, she stays with me every weekend and Monday. So I have a child support bill there as well. Yes, there's not a lot leftover.
2. I have earlier noted that Mr Hayes had not provided any affidavit, or other written material, upon which he proposed to rely. The consequence of this was that I had no documentary evidence whatsoever that would provide any verifiable basis upon which I could consider whether or not any amelioration of penalty pursuant to the discretion vested by s 6 of the Fines Act might be appropriate.
3. Unlike the position in either Ku-ring-gai Council v Edgar [2017] NSWLEC 49 (Edgar) or Wollongong City Council v Eldridge [2017] NSWLEC 35 (where, in each instance, bank and tax records were put in evidence), no such material has been provided by Mr Hayes. Even taking his oral evidence at its highest (and I do so, as it is unchallenged), there is simply insufficient basis to permit me to conclude that I should moderate the penalties which would otherwise be appropriate to be imposed on Mr Hayes. Although his statement concerning his income shows the modesty of his cashflow, I have no information of what other assets (if any) he may have been left with as consequence of his bankruptcy. Whilst his evidence may give rise to sympathy, the absence of evidence is no basis upon which to exercise the s 6 Fines Act discretion. However, it is open to Mr Hayes to make an application to pay his fines by instalments and it is possible that that can be over an extended period of time.
4. I have earlier set out the terms of s 6 of the Fines Act, a provision that invests me with discretion to take into account Mr Hayes' financial circumstances in determining what would be an appropriate penalty to impose.
5. I am satisfied, after taking into account "such information regarding the means of the accused" (s 6(a) of the Fines Act), that the unsupported evidence of Mr Hayes is not sufficient to enable me conclude that I ought exercise the discretion given to me by s 6 of the Fines Act to consider reducing the penalties that might otherwise be imposed on Mr Hayes.

The statutory position concerning fines

1. I have earlier set out the terms of s 82(3) of the Bankruptcy Act. It makes it clear that any penalties which I impose on Mr Hayes, by way of fining him for each of the three offences with which he has been charged and to which he has pleaded guilty, will not be subsumed in his bankruptcy. As a consequence, the fines will remain as liabilities on Mr Hayes.
2. To the extent that they are not paid off prior to his discharge from bankruptcy, they will remain as liabilities falling fully upon him after his discharge from bankruptcy.

The Prosecutor's costs

1. The Prosecutor has sought an order that Mr Hayes pay the Prosecutor's costs arising from the bringing of these proceedings. The estimate provided to me by the Prosecutor was that these costs would be of the order of $80,000 to $90,000 (excluding investigation costs and expenses dealt with below, and, separately in more detail, later). The investigation costs and expenses, the Prosecutor indicated, were likely, in themselves, to be substantial.
2. However, it is long-established that orders for costs are designed to provide a basis to recompense for the legal costs of bringing the proceedings. Such a costs order, whether in criminal or civil proceedings, is not made for any punitive purposes, but purely for compensatory ones (Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59).
3. In Chief Executive of the Office of Environment and Heritage v Cory Ian Turnbull [2017] NSWLEC 140 (Turnbull), Preston CJ considered the potential for tension between the appropriate penalty and the recovery of the Prosecutor's costs should that arise from consideration of s 6 of the Fines Act issues. Relevantly, he said: 260 I do not consider that the fact that Mr Turnbull will be ordered to pay the prosecutor's costs of the proceedings is a reason to impose a lesser fine than is appropriate. It is true that any costs payable are considered to be a fine for the purpose of the Fines Act and also part of the penalty imposed on the offender: see Environment Protection Authority v Barnes at [88]. However, a fine and a costs order serve different purposes. A fine serves the purposes of sentencing for the offence committed by the offender, including punishment of the offender. A costs order serves to compensate the prosecutor, not punish the offender: see Latoudis v Casey (1990) 170 CLR 534 at 569; [1990] HCA 59 and Environment Protection Authority v Taylor (No 4) (2002) 120 LGERA 414; [2002] NSWLEC 59 at [45]. 261 If a court considered that an offender would be unable to pay the aggregate of the amount of the fine and the amount of the costs order, the court, exercising the discretion under s 6 of the Fines Act, can impose a lesser penalty. However, in order to do so, ordinarily it will be more appropriate to reduce the amount of costs payable rather than the amount of the fine. A reduction in the amount of the fine may impact on the achievement of the purposes of sentencing for which the fine, in the amount fixed as appropriate, was imposed. For example, if the amount of the fine were reduced significantly, perhaps by the amount of costs payable, it may no longer act as a general deterrent to others tempted to commit similar offences. It is the public punishment of the fine that acts as the deterrent not the private compensation of the costs order. There is no basis in any of the material before me in these proceedings that could cause me to conclude that it was not appropriate to make a costs order in the Prosecutor's favour.
4. As can be seen, he observed that "that any costs payable are considered to be a fine for the purpose of the Fines Act".
5. The definition of "fine" in s 4 of the Fines Act specifically folds in: (f) any costs (including expenses or disbursements) payable by a person under an order made by a court in proceedings for an offence that were brought by a law enforcement officer
6. The position applied in Turnbull because the prosecution was commenced in the name of the "Chief Executive of the Office of Environment and Heritage" - a nominated position thus falling within the definition of "law enforcement officer" in s 3(1) of the Fines Act. The relevant element of that definition for the purposes of these proceedings is: law enforcement officer means a person exercising law enforcement functions in the official capacity of any of the following: (a) … (b) … (c) … (d) … (e) … (f) a member or an employee of a local council, (g) … (h) … (i) …
7. However, these proceedings have been commenced in the name of the body corporate known as Shoalhaven City Council. This is permitted as a consequence of s 684 of the Local Government Act 1993 (the Local Government Act) which provides, relevantly: 684 Laying of informations In any proceedings for an offence, the information may be laid: (a) in the name of the council, if not required to be made on oath, or (b) …, or (c) …, or (d) …, or (e) ….
8. The consequence of this would appear to be that the order to pay the Prosecutor's costs will not cause the deeming of those costs to be a fine.
9. As a further consequence, it would seem to me that s 82(3) of the Bankruptcy Act is not likely to act to shield the debt which will arise from my making of such a costs order from being encompassed as forming part of the liabilities of Mr Hayes for the purposes of s 82(1) of the Bankruptcy Act.
10. I have earlier noted that Ms Yeatman gave oral evidence concerning a conversation in which she participated informing the firm associated with Mr Hayes' Trustee in Bankruptcy of these proceedings. Her oral evidence was concise. Her evidence was in the following terms (Transcript, 17 April 2018, page 24, lines 19 to 38): Q. Ms Yeatman, can I show you a document. Do you recognise that document? A. Yes, I do. Q. Could you please tell his Honour what that document is? A. It is my file note from my telephone or our telephone conversation with Mary Arglellis of PPB Advisory from today. Q. If you could just tell his Honour what the conversation included? A. Yes, the conversation was facilitated on Mr Nash's mobile phone. Mr Hayes was present, as was I, and the phone was on the speaker phone. We called PPB Advisory by the normal number and were referred to Mary by reception. Mr Nash explained to Mary that we were with Mr Hayes who was in the room, that we were in court, and that Mr Hayes was being prosecuted by the local council and that the council wanted to notify the trustee that there were proceedings on foot and whether or not they required any input given that they were the trustee. May said that she would speak to her manager and will all us back. Mary called us back shortly afterwards and said that the trustee had no need to be involved in the proceedings and that she would send a follow up e-mail which we have not yet received.
11. The file note to the contents of which Ms Yeatman adverted was tendered by the Prosecutor, becoming Exhibit C.
12. Obviously, the question of whether or not any costs order (or indeed, investigation costs and expenses order) I might make has any impact on Mr Hayes' bankrupt estate is not a matter for this Court. However, I am satisfied that it is appropriate, in the orders that I make in these proceedings, that I require the Prosecutor to draw to the attention of Mr Hayes' Trustee in Bankruptcy the terms of these remarks as well as the costs and investigation costs and expenses orders forming part of the outcome of these proceedings.

The Prosecutor's investigation costs and expenses

1. The above position concerning legal costs applies equally with respect to the investigation costs and expenses that are to be ordered as partial compensation to the Council for the expenses of its investigation prior to the commencement of these prosecutions of Mr Hayes. The order that the Prosecutor notify Mr Hayes' Trustee in Bankruptcy will, therefore, also encompass notification of the order made concerning investigation costs and expenses.

Introduction

1. I have earlier explained why I am satisfied that the Prosecutor's evidence provides a proper basis to find that Mr Hayes has committed the offences to which he has entered pleas of guilty and, therefore, to convict him of each offence.
2. The fact that Mr Hayes carried out the clearing and tree removal in anticipation of financial reward constitutes a factor of aggravation to be taken into account (s 21A(2)(o) of the Sentencing Procedure Act).

Consistency in sentencing

1. In the course of his written submissions, the Prosecutor took me to a limited list of cases which were supplied for purposes of possible comparability as to circumstances and penalty.
2. In the course of his oral submissions, the Prosecutor noted that two recent decisions of my own - Edgar and Willoughby City Council v Rahmani [2017] NSWLEC 166 (Rahmani) - were the most recent relevant cases of some comparability. In both cases, the defendants had pleaded guilty at the earliest occasion (as is here the case) and therefore received the maximum discount on penalty for the utilitarian value of the plea.
3. In Edgar, I imposed a fine of $16,000 in circumstances where the vegetation and trees did not have the same intrinsic ecological values as in these proceedings and where there were powerful ameliorative financial factors, in a s 6 of the Fines Act fashion, weighing in his favour. The otherwise appropriate starting penalty was $45,000.
4. In Rahmani, there was a single charge involving three mature trees from within a critically endangered ecological community. I determined that the appropriate starting penalty was $90,000. Mr Rahmani was entitled to a total discount of one-third.
5. In these proceedings, Mr Hayes has pleaded guilty to three charges - the seriousness of which is generally comparable with the extent of clearing in the Edgar case but more akin to the quality of the vegetation in the Rahmani case. It seems to me that a lower penalty for each charge than in Rahmani would be appropriate but that this would only be appropriate because there are here three charges and issues of totality and accumulation will arise so a higher total penalty will follow.

Starting penalties

1. I have earlier explained why Mr Hayes' offending conduct is to be regarded, within the broad range of consideration of such conduct, as being at the upper end of the low range of seriousness. The offences were also committed in circumstances of aggravation - namely, in anticipation of financial gain.
2. Having undertaken the process of instinctive synthesis (encompassing all matters required to be considered) to determine the appropriate penalty to be imposed, I have concluded that a starting fine for each offence charged of $45,000 would appropriately reflect the culpability of his conduct.

Discounts

1. However, I consider that each penalty should, initially, be discounted by 30% to $31,500. This discount reflects Mr Hayes' limited relevant positive subjective circumstances and incorporates the maximum discount of 25% for Mr Hayes' entry of a plea of guilty at the earliest opportunity to each charge.
2. I have also taken into account the order that is to be made that Mr Hayes is to pay the Prosecutor's costs, costs as earlier discussed that themselves will be of a not inconsequential financial burden upon him. Similarly, I have had regard to the order to be made which requires Mr Hayes to pay one-third of the Prosecutor's investigation costs and expenses.

Accumulation and totality

1. Although Mr Hayes has been charged with three offences spanning two statutory regimes, they arose out of a single course of conduct. In these circumstances, the penalties to be imposed are not to stand alone but should reflect the interrelationship of the offences arising from this single course of conduct.
2. It is also necessary to have regard to the totality of the overall penalty to be applied in order to ensure that this is appropriately proportionate to the nature of the offending conduct giving rise to the charges. I have, similarly, structured the sentences to be imposed to have regard to this factor.
3. I have therefore concluded that the fines to be imposed should be: 1. Charge 1 - $31,500; 2. Charge 2 - $25,200; and 3. Charge 3 - $18,900.
4. As a consequence, the total penalty to be imposed on Mr Hayes is to be $75,600.

Orders

1. It therefore follows that the orders of the Court are: 1. Luke Anthony Hayes (the Defendant) is convicted of an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 in that, between September 2015 and March 2016, at Lots 1 and 2 in Deposited Plan 1008950, he carried out development on Lots 1 and 2 without development consent, in circumstances where development consent was required prior to the carrying out of the development, contrary to s 76A(1)(a) of the Environmental Planning and Assessment Act 1979; 2. The Defendant is fined the sum of $31,500; 3. The Defendant is convicted of an offence against s 12 of the Native Vegetation Act 2003 in that, between September 2015 and October 2015, at Lot 62 in Deposited Plan 755928, he cleared native vegetation from the land without development consent granted in accordance with the Native Vegetation Act 2003 or a property vegetation plan. 4. The Defendant is fined the sum of $25,200; 5. The Defendant is convicted of an offence against s 12 of the Native Vegetation Act 2003 in that, between September 2015 and October 2015, at Lots 1 and 2 in Deposited Plan 1008950, he cleared native vegetation from the land without development consent granted in accordance with the Native Vegetation Act 2003 or a property vegetation plan. 6. The Defendant is fined the sum of $18,900; 7. The Defendant is ordered to pay the Prosecutor's costs as agreed or assessed; 8. The Defendant is ordered to pay one-third of the Prosecutor's costs and expenses incurred during the investigation of the offences; and 9. The Prosecutor is to provide a copy of this judgment to the Defendant's Trustee in Bankruptcy.

Amendments 01 June 2018 - Catchwords updated to correctly reflect penalties contained in the orders, as follows:

PENALTIES - discount for early plea - Defendant to be convicted of each charge - need to provide for both specific and general deterrence - indicative starting sentence of $45,000 fine for each offence - discount of 30% for each offence (including discount for the early guilty pleas) results in an appropriate starting penalty of $31,500 for each offence - offending arising from one course of conduct - consideration of accumulation and totality - adjustment of penalties for Charge 2 (to $25,200) and Charge 3 (to $18,900) - total penalty of $75,600 imposed. 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. Decision last updated: 01 June 2018