Willoughby City Council v Rahmani

The trees which were removed

1. The trees which Mr Rahmani had removed were all mature specimens that had been assessed by Mr Smith, the consulting arborist who had provided a report for the purposes of Mr Rahmani's development application, as having a Safe Useful Life Expectancy in the A1 category, this being the designation classifying the three trees as being mature specimens worthy of protection. There were no outward signs of any defect with any of the trees that would warrant them being removed, according to this report.
2. Mr Rahmani had the stump of Tree 9 examined by Mr Smith, for the purposes of these proceedings, because that stump, in the section now displayed after its removal, showed the presence of a significant hollow which had existed at the time of its removal. However, it was Mr Smith's opinion (his affidavit of 13 November 2017) that the hollow did not evidence any structural defect which, if it had been found, would have warranted removal of this tree.
3. In any event, given that there was no evidence that this central hollow was in any way able to be detected, visually, before the tree was removed and there is no suggestion that testing with a resistograph or a sonic tomograph (these tools being equipment conventionally used by arborists to detect internal defects of trees) had been deployed for the assessment of Tree 9, the presence of this central hollow could not afford post facto justification for removal of this tree.

The maximum penalty for the offence

1. The maximum penalty applicable for the conduct for which Mr Rahmani has been charged, as at the time of its occurrence, was $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).
2. At the time Mr Rahmani caused the removal of the three trees, the maximum penalty applicable for the offence was $500,000 (as the offending conduct is to be classified as a Tier 2 offence falling under s 125B of the EP&A Act.
3. The 2015 changes to the upper penalty limit for such offences are discussed below.

Placing the offending conduct in a range of seriousness

Introduction

1. Ms Hammond provided a table of six cases where penalties had been imposed by this Court for the removal of trees without the obtaining of the appropriate approval from the relevant local government authority or in breach of a condition of development consent. These cases, she submitted, should provide starting-point guidance as to where I should place removal of these trees within a descriptive range for the purposes of assessing the appropriate penalty to be imposed on Mr Rahmani. She proposed that I should conclude that the removal of these trees should be characterised as being at the upper end of the low range of such offending.

The 2015 amendments to the EP&A Act

1. From 31 July 2015, a new structure was introduced into the EP&A Act by virtue of the Environmental Planning and Assessment Amendment Act 2014 (the 2014 Amending Act). The maximum penalty for the offence with which Mr Rahmani has been charged became $500,000.
2. Prior to the changes effected by these amendments, s 126 of the EP&A Act applied. This provision created a single, omnibus, maximum penalty for individuals of $1.1 million as being available to be imposed for any breach of s 125(1) of the legislation. The nature of the potential offending conduct giving rise to prosecution pursuant to this statutory provision was extraordinarily broad.
3. Ms Hammond submitted that, as a consequence of the change in structure for classifying offending conduct in 2015, and the fact that the Council had elected to prosecute Mr Rahmani for a Tier 2 offence with a now maximum penalty of $500,000, this meant, if his offending conduct was to be regarded as being at the upper end of the low range of such conduct and the penalty to be imposed was to be assessed against past penalties imposed for similar offences characterised in a similar fashion, the more than halving of the maximum penalty was a significant matter to be taken into account in my determination of the appropriate penalty to be applied to Mr Rahmani.
4. Whilst Ms Hammond did not explicitly submit that, when arriving at a potential penalty after having had regard to the penalties proposed under the old statutory regime, this would warrant a more than halving of what would have been the appropriate penalty for Mr Rahmani had that old regime applied to his offending conduct, this broad approach to assessing what would be the appropriate penalty to be imposed on Mr Rahmani for this offending conduct was underpinned by such consideration.
5. I am unable to accept this proposition. To understand why I have reached this conclusion, that the commencement in 2015 of the amendments to the penalty structure under the EP&A Act plays no part in altering the approach I should take to assessing the appropriate penalty for Mr Rahmani, it is necessary to have some regard to the history not only of the penalty provisions under the EP&A Act but also to the reasons why the new penalty structure operative from 31 July 2015 had been imported into that Act.
6. In 1989, the New South Wales Parliament enacted the Environmental Offences and Penalties Act 1989 (the 1989 legislation). This legislation adopted, for pollution offences, a three-tier structure within which offending conduct was to be classified. Whilst the penalties attaching, potentially, for such conduct have been subject to adjustment over the intervening period, the conceptual framework has remained unchanged. The framework adopted in 1989 replaced provisions in the then relevant freestanding pollution statutes in circumstances where the offences in those freestanding statutes had been of a similar omnibus characterisation as had existed in the EP&A Act prior to July 2015.
7. At the time of enactment of the 1989 legislation, self-evidently, no amendments were made to the EP&A Act to import a similar penalty structure into it.
8. In 2011, following a change in the political composition of the New South Wales government as a result of the 2011 general election, the incoming government commissioned a review of the New South Wales planning system. In July 2012, the NSW Planning System Review published two volumes of its report with recommendations. Volume 1 dealt with the Review's major recommendations. Although the primary recommendation concerning the EP&A Act was that this legislation be replaced with a new planning framework, such legislation has not subsequently been enacted. However, Recommendations 122 to 124 dealt with the structure of enforcement provisions which were proposed to operate in the future for offences arising from breaches of the planning system. Those recommendations proposed the replacement of the then single omnibus penalty provision applicable in the EP&A Act and its replacement with the three-tier structure which had been initially enacted through the 1989 legislation. In her Second Reading Speech in the Legislative Assembly introducing the 2014 Amending Act, the Hon Prue Goward MP, Minister for Planning, indicated that the three-tier structure had been introduced as a response to the recommendations of the NSW Planning System Review.
9. Although the 1989 legislation had subsequently been subsumed by the consolidation of the various freestanding pollution enactments by the passage of the Protection of the Environment Operations Act 1997, the three-tier offence structure has remained unchanged since 1989.
10. All that has happened as a consequence of the 2015 operative amendments to the EP&A Act, here requiring consideration, is the fact that the more refined characterisation structure provided by the three-tiered approach enables prosecuting authorities to specify, with a better degree of precision, how the prosecuting authority viewed the offending conduct. The new structure permits surrounding objective and subjective circumstances to be more discerningly assessed for the commencement of a prosecution for breach of s 125(1) of the EP&A Act. The fact that the Council has elected to prosecute Mr Rahmani for a Tier 2 offence does not mean that my assessment of the appropriate penalty to be applied should, in any automatic fashion, be diminished compared to penalties imposed in the past for similar conduct.
11. The nature of the conduct and how it is to be assessed remains unchanged, as, in my view, does the financial range from within which the appropriate penalty is to be determined. There is certainly nothing in the Hansard record of the parliamentary debate leading to the introduction of the 2015 changes which would, by virtue of s 34(2)(f) of the Interpretation Act 1987, warrant any contrary conclusion.

The statutory framework

1. The Crimes Sentencing Procedure Act 1999 (the Sentencing Procedure Act) sets out, in s 21A, a range of matters which are required to be taken into account in dealing with matters relating to the offending conduct in the circumstances of Mr Rahmani. A limited number of those matters are engaged in these proceedings. The Sentencing Procedure Act (s 22) also requires me to have regard to the circumstances of Mr Rahmani's plea of guilty to the charge laid.

The Statement of Agreed Facts

1. The Prosecution and the Defence have reached agreement on a Statement of Agreed Facts (the SOAF) which has been tendered in these proceedings (Exhibit A).
2. It is unnecessary to set out, extensively, what is contained in that document. It is sufficient for me to note that I have had regard to the relevant matters contained in it and have summarised, earlier, the circumstances relating to Mr Rahmani's offending conduct.

Mr Rahmani's guilty plea

1. As earlier noted, one of the matters to be taken into account as a consequence of the provisions of the Sentencing Procedure Act (ss 21A(3)(k) and 22) is the fact that a defendant has pleaded guilty to the offence charged. When this occurs, at the earliest available opportunity (the position which the Prosecutor accepts is the case with respect to the guilty plea entered by Mr Rahmani), a defendant is entitled to a discount on the penalty that would otherwise apply. This discount is given in recognition of the utilitarian value to the administration of the system of justice of such a plea. Mr Rahmani, in entering his guilty plea at the earliest available opportunity, is entitled to a discount, on the sentence which would otherwise arise to be imposed, of 25% (R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 383).
2. For the purposes of these proceedings, I have carefully examined that which is set out in the SOAF and I am satisfied that those agreed facts disclose a proper basis upon which Mr Rahmani's guilty plea was appropriately entered and forms a proper basis upon which I can be satisfied that I should convict him of the offence with which he has been charged.

Introduction

1. I now turn to the relevant matters in s 21A of the Sentencing Procedure Act requiring to be considered.

Environmental harm

1. The three trees which were removed comprised two Sydney Blue Gums (Eucalyptus saligna) and a Smooth Bark Apple (Angophora costata). These trees form part of the species assemblage of a vegetation association known as Sydney Blue Gum High Forest. The legislation applicable at the time of removal of these trees was the Threatened Species Conservation Act 1995. Sydney Blue Gum High Forest was classified, as at the date of removal of the three trees, as a critically endangered ecological community. Classification of Sydney Blue Gum High Forest in that fashion recognised that trees such as these three, although not forming part of a significant vegetation community in an immediate localised sense, were, nonetheless, specimens warranting a high level of protection because of the status of the ecological community of which they were remnant specimens.
2. As a consequence, I am satisfied that it is appropriate to conclude that environmental harm occasioned by the removal of these three trees, in circumstances where there was no genuine arboricultural reason to support their removal, should be regarded as evidencing environmental harm of some significance and thus a factor of aggravation.

Mr Rahmani's belief that the 10/50 Rule permitted removal of the trees

1. Mr Rahmani gave evidence of how he had come to believe that the 10/50 Rule, a statutory provision under Pt 4, Div 9 of the Rural Fires Act 1997, provided a basis by which he was able to remove these three trees despite the fact that the retention had been mandated by the development consent given to him by the Council.
2. It is agreed that, at all relevant times, the 10/50 Rule was not applicable to Mr Rahmani's property and, thus, could never have provided in with a lawful basis to remove the three trees mandated to be retained.
3. I am satisfied, from a consideration of Mr Rahmani's evidence concerning his examination of the Rural Fire Service's website, that this examination can be characterised as superficial rather than substantive. Mr Rahmani acknowledged, in his oral evidence, that he merely went to the website and examined it and that he did not, in any significant fashion, electronically interrogate the website to establish whether or not 10/50 Rule applied to his property.
4. Whilst, perhaps, being sufficiently aware of the relevant regulatory frameworks to contemplate accessing this website could remove the inference of recklessness suggested by the Prosecutor (and my assessment that such removal of this element is found in Mr Rahmani's favour on only very fine balance), nonetheless, the manifest inadequacy of his examination of this readily accessible material is certainly indicative of negligence on his part.
5. Whilst this negligence is a factor that weighs against him in the balancing process I am later required to undertake, I am not prepared to find that he was reckless in a fashion that would cause me to regard this aspect of his conduct as constituting an aggravating factor.

No financial advantage

1. Mr Rahmani did not remove the trees in order to seek some financial advantage - s 21A(2)(o) of the Sentencing Procedure Act.

Prior convictions

1. Mr Rahmani has no relevant prior convictions, a circumstance to be taken into account in his favour - s 21A(3)(e) of the Sentencing Procedure Act.

Good character

1. Attached to Mr Rahmani's affidavit, affirmed on 8 November 2017, which affidavit was read as evidence in the proceedings, are four references attesting to Mr Rahmani's good character. It is clear from the terms of each of the references that those subscribing their names to the reference have been made aware of the offending conduct to which Mr Rahmani has pleaded guilty. I am satisfied that Mr Rahmani should, as a consequence, receive the benefit of being regarded as of good character - s 21A(3)(f) of the Sentencing Procedure Act.

Specific deterrence for Mr Rahmani

1. Mr Rahmani now acknowledges that he should not have accepted, unquestioningly, that he had the right to remove the trees. He should have sought, properly, to satisfy himself whether the 10/50 Rule applied to permit him to remove the trees despite his consent conditions mandating their retention.
2. Therefore, to reinforce Mr Rahmani's understanding of the requirement to obey conditions of development consent unless there is a proper basis not to do so, it is appropriate that there be an element of specific deterrence in the sentence to be imposed - s 21A(3)(g) of the Sentencing Procedure Act.

Contrition and remorse

1. Mr Rahmani has expressed contrition and remorse for the removal of the trees (s 21A(3)(i) of the Sentencing Procedure Act). In addition, as a factor to which regard is to be had, Mr Rahmani has agreed to an order requiring him to plant two substantially advanced trees (of a minimum of 100-litre container size) - being one Smooth Bark Apple (Angophora costata) and one Lilly Pilly (Acmena smithii), both species that are within the species assemblage of Sydney Blue Gum High Forest (see Chief Executive, Office of Environment and Heritage v Ausgrid (2013) 199 LGERA 1; [2013] NSWLEC 51, where Pepper J set out, at [80], factors demonstrating contrition and remorse - the accepting of the obligation to plant and nurture to maturity these replacement trees is broadly consistent with the third of the factors there set out).

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 necessity to observe requirements of conditions of development consent (Mosman Municipal Council v Menai Excavations Pty Limited (2002) 122 LGERA 89; [2002] NSWLEC 132 at [35]). Such reinforcement of the necessity to obey a consent condition for tree retention, as has been breached by Mr Rahmani, is also directed to the broader public who might contemplate commissioning contractors to undertake tree-removal activities.

Mr Rahmani's capacity to pay a fine

1. Mr Rahmani also provided an affidavit, affirmed on 29 November 2017, to which a number of his and his wife's financial records were appended. The purpose of this affidavit was to found submissions made by Ms Hammond that I should have regard to his financial capacity to pay a penalty. The potential to reduce what might otherwise be the applicable penalty when assessing the quantum of fine to be imposed on an offender arises from s 6 of the Fines Act 1996, a provision which reads: 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.
2. Mr Rahmani was cross-examined by the Prosecutor concerning the financial material appended to his affidavit of 29 November 2017.
3. Whilst his financial information (revealed from the documents or arising from his oral evidence) might lead, superficially, to the conclusion that a person with debts of close to $1 million, and a present annual income of a little over $50,000, was unlikely to have any significant capacity to pay a penalty of any substance (particularly in light of the fact, as discussed above, that he has agreed to pay the prosecutor's costs of these proceedings in the agreed sum of $29,000), I am satisfied that, if I were to reach such a conclusion concerning his capacity to pay, that I would be in error to do so. There are three reasons why this is the position.
4. First, as could be seen from his affidavit evidence, and was confirmed during the Prosecutor's cross-examination, Mr Rahmani's income for the past 12 months has been artificially depressed as a consequence of him devoting a significant portion of his time to the construction of the new dwelling which was approved by the Council. His endeavours in doing so will, I am satisfied, be rewarded by the accrual of additional capital value to his asset base.
5. Second, although Mr Rahmani expressed some ambivalence when cross‑examined concerning his future intention with respect to the existing dwelling that will be located on the second allotment arising from the approved subdivision, nonetheless, Mr Rahmani acknowledged, in response to a question from the Prosecutor, that the value of this property might be somewhere between $1.5 million and $2.5 million. His interest in this property (which I am prepared to assume is shared with his wife, as this is consistent with the general evidence concerning the property upon which the trees were located) is to be taken into account.
6. Similarly, it is reasonable to expect that the value of the house which is being constructed (even if further significant expense remains to be incurred) will, nonetheless, result in a dwelling with a similar value.
7. Finally, Mr Rahmani's financial statements show a bank advance for the purposes of an investment property but he discloses no income or capital value information concerning this investment property.
8. Taking these factors into account, and observing that there has been no balance sheet for Mr Rahmani, let alone a combined balance sheet for him and his wife (his wife being relevant as I have been asked to take into account the relatively modest income from working in the childcare sector), so I have no functional knowledge as to what might be Mr Rahmani's total net worth after deducting his total liabilities from what might reasonably be seen as his total assets.
9. As consequence, there is no basis upon which I could conclude that Mr Rahmani is unable to meet, in full, such penalty amount as I might determine is appropriate as a result of my instinctive synthesis of all the objective and subjective factors to which I am obliged to have regard as well as also meeting the agreed sum of Prosecutor's costs.
10. I am satisfied that the penalty to be imposed, together with the Prosecutor's costs, do not, in total, combine to an amount which Mr Rahmani would not be able to afford from his own asset pool. Whilst the total of the penalty, and the Prosecutor's costs, may require Mr Rahmani to increase his indebtedness, or to contemplate asset disposal, how he meets the penalty and the Prosecutor's costs is a matter for his election only.
11. I also observe that, in reaching this conclusion, I have not had regard to such modest income as Mrs Rahmani earns, nor have I had regard to what would be her share of what might reasonably be expected to be their combined net asset position.

Determining an appropriate penalty

1. The appropriate process to be undertaken in sentencing Mr Rahmani is one which requires me to perform an instinctive synthesis of all relevant factors, objective and subjective, in order to determine what might be an appropriate starting penalty to punish Mr Rahmani's 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 should be regarded as falling, having regard to the maximum penalty of $500,000 for such offences.
2. Camilleri's Stock Feeds (also 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 offences' objective seriousness.
4. In undertaking this instinctive synthesis of all relevant factors, in order to derive an appropriate starting sentence for Mr Rahmani, I have concluded that his offending conduct is to be regarded as being at the top of the low range for such offences. A description of that nature, of course, is not a matter of mathematical precision. I have concluded that the singular factors which warrant consideration in assessing what is the appropriate starting penalty are: 1. The three trees that were removed were mature trees with each being assessed, by Mr Rahmani's own arborist, as having a long Safe Useful Life Expectancy and warranted retention; 2. None of the trees had any defect, which relevantly impacted on this potential; 3. Each of the trees was a member of the species assemblage of Sydney Blue Gum High Forest, a vegetation community classified as critically endangered under the then applicable legislation; 4. Mr Rahmani's interrogation of information available on the Rural Fire Service website was, at best, superficial; and 5. Retention of the three trees was an expressly mandated requirement of the development consent given by the Council to Mr Rahmani for the construction of his new dwelling and the subdivision of his (then) existing allotment.
5. The cases to which Ms Hammond took me are ones where there are two particular differences that militate against them having significant utility for comparative purposes in these proceedings. These two differences (that the three trees were part of a critically endangered ecological community and that Mr Rahmani was on express notice that the trees were required to be retained) demonstrate why Mr Rahmani's conduct has a greater degree of seriousness than in the cases to which she took me.
6. However, the various penalties in five of the cases Ms Hammond analysed (and I exclude the decision of Talbot J in Council of Camden v Poyntz, John [2007] NSWLEC 439 as it is somewhat ancient and in quite different factual offending circumstances) provide a useful lower point for assessing what starting penalty should be considered appropriate for Mr Rahmani.
7. Under these circumstances, I consider that a starting penalty of $90,000 is appropriate and is not so above the amounts imposed for lesser offending conduct to be unreasonable or to cause Mr Rahmani to hold any justifiable sense of grievance as to the extent of the penalty imposed.

Discount for guilty plea and Mr Rahmani's subjective factors

1. Having concluded that the appropriate starting penalty is $90,000, it is then necessary to consider what discount should be given as a consequence of Mr Rahmani's having pleaded guilty on the earliest possible occasion and, in addition, the need to have regard to the other positive subjective factors to which I have earlier referred.
2. Having regard to all of those matters, I am satisfied that it is appropriate to apply a total discount of one-third to my initial determination of an appropriate starting penalty. The consequence of this is that the fine to be imposed on Mr Rahmani is $60,000.

Orders

1. It follows from that which I have set out above that the appropriate orders of the Court are: 1. Mr Parviz Rahmani (the Defendant) is convicted, pursuant to s 125(1) of the Environmental Planning and Assessment Act 1979, of the offence that, contrary to s 76A(1)(b) of that Act, he carried out development in breach of the conditions of consent applicable to the development; 2. Pursuant to s 125B(2)(b)(i) of the Environmental Planning and Assessment Act 1979, the Defendant is fined $60,000 dollars; 3. The Defendant is ordered to pay $29,000 to the Prosecutor for the Prosecutor's costs; and 4. Pursuant to s 126(3)(a) of the Environmental Planning and Assessment Act 1979, the Defendant is ordered to undertake replacement planting of two (2) trees on the land known as 52 Findlay Ave, Roseville in accordance with the attached marked Landscape Plan at Annexure A. The replacement trees are to be nurtured to maturity and are to be in sound, healthy condition, true to form for the species, and advanced sized nursery stock with a minimum container size of 100 litres. The replanting is to be of two (2) trees of species which form part of the Sydney Blue Gum High Forest ecological community - one being a Lilly Pilly (Acmena smithii), to be planted at the location marked on Annexure A at the front boundary of the land, and one being a Smooth Bark Apple (Angophora costata), to be planted at the location marked on Annexure A along the driveway and western boundary of the land.

ANNEXURE A 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: 08 December 2017