Warringah Council v Bonanno

Land and Environment Court (NSW)|2012-12-03|Before: Sheahan J

Introduction 1Joseph Bonanno has been charged by Warringah Council with carrying out development without consent, in circumstances where consent was required by s 76A(1)(a) of the Environmental Planning and Assessment Act 1979 ('the EPA Act'), under the terms of Warringah Local Environmental Plan 2011 ('LEP' - see cl 5.9), and the associated Warringah Development Control Plan 2011 ('DCP' - see Part E2). 2The two environmental documents embrace the clearing of vegetation which may be any one or more of "native vegetation", "wildlife corridor", and/or "threatened and high conservation habitat". 3The sentencing hearing yesterday followed the entry of a guilty plea to the charge, but I reserved judgment overnight to consider a strong submission made by counsel for the defendant that the defendant should be dealt with under s 10 (or perhaps s 11) of the Crimes (Sentencing Procedure) Act 1999 ('the CSP Act'). 4The court has been greatly assisted by a comprehensive Statement of Agreed Facts ('SAF' - Exhibit W1), and by comprehensive written submissions, provided to the court in advance by both legal representatives. The SAF is too lengthy to be repeated in this judgment, but the salient features are included. The document itself will remain in the court file. 5The prosecutor supplemented the SAF by reading some short extracts from the filed affidavits of five Council officers (Wheeler, Howard, Peddle, Domanski, and Murray), over some objections from the defendant. The defendant relies upon affidavits from himself and his solicitor (Andrews), and upon unsworn character references.

The orders sought 9The charge is brought under s 125(1) of the EPA Act, which prescribes as the maximum penalty a fine of $1.1M. The summons was issued on 31 July 2012. In cl 3 of the "relief claimed", Council sought not only a fine, but also an order, pursuant to s 126 of the EPA Act, that "the Defendant be directed ... to plant new trees and vegetation, maintain those trees and vegetation to a mature growth, and provide security for those obligations". 10At the first return of the summons, on 14 September, the defendant agreed "in principle" to such a direction (see Biscoe J's SMO), but the details of it have never been agreed, and the prosecutor did not press yesterday for any s 126 order at all. The reason for the failure to agree was the defendant's insistence that the precise form of the order to be sought from the court be the subject of an amendment of the originating summons. 11At all times the defendant has admitted his responsibility for the clearing, and he immediately commenced his attempts to commit to the Council to be responsible for the reparation of the site. Estimates of the cost of repairing the damage caused by the clearing vary from approximately $3,000 to approximately $5,000. In September 2012, the defendant unsuccessfully proffered to the Council a cheque in favour of a quoting contractor for $5,016. The cheque was never accepted by the Council, but the offer to be responsible for the cost of remediation was renewed by counsel for Bonanno at yesterday's hearing. The sticking point in the negotiations about a s 126 order, apart from whether the summons needed to be amended, appears to have been the requirement of the Council that a vegetation management plan of some sort regulate the remediation works. 12The prosecutor also seeks an order for costs, estimated (including the one-day hearing) at $28,800. The defendant accepts that he will be ordered to pay those costs, but has not accepted that estimate.

The Council's "expert" evidence 13Vivien Howard, Council's Senior Environmental Officer (Biodiversity), was the only prosecution witness required for cross-examination. Counsel for the defence urged the court not to accept her evidence, because she is not, in fact, an independent expert, and she did not fully satisfy the requirements of the Code of Conduct contained in Schedule 7 of the Uniform Civil Procedure Rules. Also, the prosecutor was late producing the instructions she was given, and the answers she provided to questions set by the solicitor for the prosecutor, denying the existence of such documents until she was giving her oral evidence of them (see Exhibit D5). 14Counsel for the defence also submitted that Howard's "expert" opinions had no established basis - Wood v R [2012] NSWCCA 21, at [715]ff - and that her evidence was imprecise, calling into some question the value of some of it (in pars 17, 18 and 29) concerning the habitat, wildlife corridor, and fauna protection values of the dune. 15There is, however, no contest about the importance of the vegetation community to the stability and protection of the dune, and to the exclusion of exotic and weed species. 16Howard has been with the Council for many years and been the Senior Environmental Officer (Biodiversity) for much of that period. Her work is mainly in the area of policy, rather than operations. 17She was assigned on 3 May 2012 to assess the environmental impacts of the clearing, and testified that the dune vegetation provides beach habitat and protection for small marsupials, bandicoots, possums, flying foxes, and small birds, such as honeyeaters and the superb fairy wren. It also provides a corridor for small mammals and birdlife, and the loss of the area cleared reduces the available habitat and corridor, and could reduce the number of fauna. 18In cross-examination, she confirmed that she had received no written direction to assess the damage, but that the prosecutor provided her with a list of questions. In answering them, she picked up on earlier work done by her colleague Jillian McIntyre. 19She adhered to her views that revegetation was not as good for that environment as natural regeneration, and that the dune is prone to invasion by exotic and weed species, which plantings would help defeat. Wattle regrows quickly, but Banksia not quite so quickly. She is said (Arch subs par 27) not to have seen any natural revegetation on her site visits 3-4 months after the offence. 20She agreed with defence counsel that it would have been better if the restoration work had commenced earlier, and she confirmed that Dragonfly Environmental ('Dragonfly') had begun work on the subject site prior to the hearing.

The defendant's case 21Bonanno is the principal of what has been described as an "internationally recognised and respected market leader in concert and event video production". His business has 20 employees, and he is married with two small daughters. 22He travels overseas regularly, and his travel and overseas visits are assisted by his entitlement to an APEC card, an entitlement which is not available if convicted of a criminal offence (see Exhibit D3). 23At the time of the alleged offence, he was under financial stress for two reasons - his business turnover, and his failure to sell a Collaroy residence before buying the subject property. He was anxious to maximise the quality of the presentation of the subject property, which was then up for a somewhat forced sale. (The evidence indicates that the defendant lost approximately $1M on the sale, which was completed in June 2012). 24He deposes to some history of environmental sensitivity on his own part, and says (par 8) that he thought the area cleared was "safe from coastal sensitivity". He attached photographs which show the dune heath invading the vacant land next door to No 185. 25His case is that his actions were not "pre-meditated" - he set out to tidy up overgrowth on the neighbouring vacant lot and access paths, and went too far, being inattentive to regulatory restrictions, and to the supervision of employees. 26The area of vegetation affected by the charge has been agreed at 123m2. It is parallel to No 185. A chainsaw was used, but Bonanno contends that much of the cleared vegetation was either dead or devoid of foliage (see photo JB3), and that view improvement was not his objective. (The prosecutor presses the court (subs 56-8) to conclude that views were, indeed, the defendant's motivation). 27Bonanno appears to have been frank and cooperative with Council officers immediately the investigation commenced, but he disputes some of the direct speech quotations in the Council affidavits. It is said that he told rangers that he did not know the subject land was Council land, that he was "just thinning the trees", and that he "didn't realise how bad it was until he went upstairs", indicating his reliance upon two non-expert employees. 28In his affidavit he accepts that he "broke the law", and says he wants to make "amends" (see pars 20-22). He obtained the first quote (from Interlink) for restoration works only four days after the clearing ($2,938.75), and provided that estimate to the Council during a record of interview on 30 April. 29Although the initial quote from Dragonfly ($5,016) was provided to Council on 27 March, it was not disclosed to the defendant until Council's evidence was filed, and it was drawn to his attention by his counsel at a conference on 5 September 2012. 30On 7 September 2012, Andrews wrote to the prosecutor, enclosing the defendant's cheque for $5,016, payable to Dragonfly, but offering, in addition: (1) To fund an advertising campaign to educate the public regarding the need for approval before clearing of dune vegetation. (2) To pay the Council's costs to date, and (3) To make a donation of $20,000 to a local environmental charity, all on the basis of Council agreeing to withdraw the prosecution. 31Council declined to take the cheque, and/or, consistent with its view as to the seriousness of the offence, to negotiate the withdrawal of the proceedings. 32Following the mention before Biscoe J on 14 September 2012, the Council sent a form of draft s 126 order to Andrews for consideration (Andrews pp16-17). The draft order required submission of a written plan providing for revegetation planting, clearly delineating the area to be planted. The plan was to follow the prosecutor's published guideline, and to stipulate a timeframe for the replanting and maintenance works, pending mature growth. The defendant would also be required, by the orders, to lodge a security bond in the sum of $5,000. 33In response, the defendant indicated he was prepared to pay an updated Dragonfly quote, but "not amenable however to consenting to unpleaded orders which were not particularised in the prosecutor's pleadings". 34The prosecutor replied that it was clear to him that Biscoe J expected that any orders made by the court would be more detailed than par 3 of the summons. His Honour did not require any amendment of the summons, just an attempt to formulate and agree upon an appropriate form for the direction. 35As the prosecutor correctly noted in his letter of 27 September 2012, "the usual practice before the Court is to include in an originating process a general prayer for relief stating the nature of the orders that are sought, and for the specific terms of any orders that are to be made to be determined by the Court, most commonly at the conclusion of the proceedings". In his letter of 12 October 2012, the prosecutor reiterated a desire for remediation works to be carried out "at the earliest possible date", but his continued view "that the works must be performed within the framework of appropriately specific and legally enforceable orders". 36Regrettably, that argument has meant that there will be no s 126 order made in this matter. 37Council obtained a second quote from Dragonfly on 3 October 2012, in the sum of $3,443 (Andrews p12).

Consideration 38The sentencing principles and considerations for environmental offences are clearly established, and have been frequently summarised and applied by Judges of this court. They include statutory provisions in, for example, ss 3A and 21A of the CSP Act. I will not repeat all the principles here. I adopt my summary of them in Chief Executive, Office of Environment and Heritage, Department of Premier and Cabinet v Powell [2012] NSWLEC 129 ('Powell' - at pars [111]-[118]), and the cases to which I referred therein.

Prosecutor's submissions 39The prosecutor submits that the defendant's offence was "objectively serious" on all relevant criteria: Council of the City of Gosford v Tauszik [2005] NSWLEC 266 ('Tauszik'). There was substantial harm to the public, including to a priceless public asset which had been comprehensively protected by various instruments. Subjective factors in favour of the defendant were weak. Mr Arch especially asserted the low utility of the defendant's guilty plea, due to his being "caught in the act", and the alleged absence of evidence of any real remorse. He also criticised the defendant for seeking to cast the blame for the continuation of harm upon the Council, because of its failure to allow the defendant to undertake remediation work before now. 40While the area affected may be small in absolute terms, it is most significant in its context, and there was substantial impact on habitat. The relatively low cost estimate for remediation does not indicate any lack of lasting harm, and the evidence supports the contention that the area will never fully recover. The evidence does not support the contention that the quality of the cleared vegetation was poor. 41The acts of the defendant are said to be intentional, or at least reckless, and certainly negligent, e.g. in failing to check the relevant planning instruments, clearly a practical measure available to prevent environmental harm, which harm the defendant should also have foreseen. It was necessary for those cutting the dune vegetation to scale a 1m fence. 42The defendant was in control of the operation, and he had a financial motive. The clearing task was attacked with a chainsaw, and the foliage was cleared to ground level. 43The prosecutor acknowledged that the defendant has no record, but submitted that there is a serious need for general deterrence in respect of offences of this type: Cameron v Eurobodalla Shire Council [2006] NSWLEC 47, (2006) 146 LGERA 349. That objective would not served by granting a s 10, or a "nominal fine": Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34, (2006) 145 LGERA 234. 44The defendant's cooperation was not "full" - there was incomplete agreement on a SAF, and the prosecutor needed to rely on additional evidence which prolonged the hearing. 45The fact that the offence was committed on public land, and involved protected species, a workforce of two, and the use of a chainsaw were aggravating factors. 46The best guide for the amount of pecuniary penalty would be the case of Manly Council v Taheri [2008] NSWLEC 314 ("Taheri"), indicating a fine of at least $50,000.

Defence submissions 47Mr Nagle, on behalf of the defendant, submitted that his client had (1) consistently and sincerely "faced up" to his responsibilities in this matter, (2) not sought to blame those he employed, (3) adhered to the admissions he agreed to in the SAF, (4) volunteered further information about the species that he cleared, (5) obtained an early quote for remediation works, and (6) offered to make additional environmental contributions, as well as "amends". 48His remorse is clear, and the size of the maximum penalty does not prevent the granting of a s 10, to which the defendant is entitled on the grounds of his attempts to remediate, the relatively low environmental harm he had caused, all the circumstances of the case, and his personal circumstances. 49The character references relied upon by the defendant were provided by four apparently reputable male citizens who have known him very well for about 25 years. They use words such as integrity, honesty, moral compass, compassion, sincerity, and trustworthy, and comments that he is both ethical and honourable in business, that he loves the area and the environment, and that he mentors the young. All testified to hearing from him expressions of genuine remorse on the defendant's part. 50As the prosecutor submits, the harm is in the clearing work, not in the lack of any agreement on remediation. The court wonders how the denial of the opportunity to remediate can be seen to reduce the objective seriousness of the offence. However, it is to the credit of the defendant that the offer was made, and it may be that the prosecutor failed to mitigate the damage, but the penalty is arrived at by the "instinctive synthesis" of the objective seriousness of the offence and the subjective circumstances of the defendant.

Section 10 or 11 51Mr Nagle submitted that the defendant should have a s 10 order, but that, if the court upholds the contention that the defendant should have been given the opportunity to remediate, I should look at granting him relief under s 11. 52Mr Nagle asked the court to dismiss the charge, without proceeding to a conviction, pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999. To make such an order is a gesture of mercy. As Windeyer J said in Cobiac v Liddy (1969) 119 CLR 257: The whole history of criminal justice has shewn that severity of punishment begets the need of a capacity for mercy. ... [A] capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice. 53One factor listed as relevant, in s 10(3), is the "trivial" nature of the offence. The relevant authorities in this court, such as Biscoe J's judgment in Blue Mountains City Council v Carlon [2008] NSWLEC 296 (at [67]-[74], do not support exercising the discretion where the offence is not "small". As this offence is far beyond trivial, in order for the defendant to obtain a s 10, the court would have to be satisfied of some relevant "personal characteristics of the defendant", some extenuating circumstances, or some "other matter that the court thinks proper to consider" (see Lloyd J in Blue Mountains City Council v Tzannes [2009] NSWLEC 19 ('Tzannes'), at [47]ff). 54Spigelman CJ indicated, in Thorneloe v Filipowski [2001] NSWCCA 213; 52 NSWLR 60 (at [165]-[184]) that the discretion should be rarely invoked in environmental matters, and not where aversion of the harmful event was within the power of the offender. 55Again in this matter, as in Powell, I affirm my agreement with Spigelman CJ and Biscoe J, and I reject the submission, despite what can be put in favour of the defendant: see Thewlis v R [2008] NSWCCA 176, at [40]-[42]. I note also that I am conscious that the defendant has committed to pay costs: see Tzannes, and Environmental Protection Authority v Barnes [2006] NSWCCA 246, at [88].

Conclusion 56My conclusions are that: (1) The offence is "objectively serious", with some "aggravating" features, and a conviction, fine and costs order are called for. (2) The environmental harm occasioned was substantial, and is likely never to be fully remediated. (3) That level of harm was foreseeable by the defendant, as an environmentally aware and sensitive person, even if it was not intentional or premeditated, and he ignored practical measures at his disposal to avoid it. (4) The defendant had control of the operation constituting the offence. (5) The defendant was motivated by his need, and desire, to maximise the sale price he achieved on his property adjacent to the clearing site. There is evidence of financial stress, but no evidence of any resulting financial gain. (6) The defendant is a family/business-man of very good character, with no previous convictions. (7) His very early plea of guilty is entitled to the full Thomson/Houlton discount (25%): see R v Thomson; R v Houlton [2006] NSWCCA 309, (2000) 49 NSWLR 383, and R v Sutton [2004] NSWCCA 225. (8) His frank admissions, willingness to remediate and to fund other initiatives, and the observations of his referees, in addition to the plea, and his cooperation with the prosecutor, satisfy the court of his contrition and remorse, and that he will not offend again: Powell at [133]. (9) The offers he made to the prosecutor at an early stage of the matter indicate that he has the means to pay the fine and the costs ([30]). (10) The fine I propose is consistent with the penalties relevantly imposed by this court in comparable cases, e.g. the public land component in Taheri. (11) There is no justification for an order under either s 10 or s 11 of the Crimes (Sentencing Procedure) Act 1999. 57I have concluded that the appropriate level of fine, before discount, is $50,000, so the defendant will be fined $37,500.

Orders 58The orders of the court are: (1) Joseph Bonanno is found guilty and is convicted of the offence charged in the summons. (2) The defendant Bonanno is fined $37,500, and ordered to pay the prosecutor's costs and appropriate investigation expenses, as agreed or assessed. (3) Exhibit W1 is to remain in the court file, but all the defendant's exhibits are returned. 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: 05 December 2012

(2006) 145 LGERA 234

(2006) 146 LGERA 349

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