KU-RING-GAI COUNCIL v. ROBERT DOUGLAS PENTECOST No. 50040 of 1995 [1996] NSWLEC 84 (22 March 1996)

Land and Environment Court of New South Wales

Record of hearing

Judge Bignold J

Number 50040, 50041 and 50042 of 1995

Parties Prosecutor KU-RING-GAI COUNCIL

Defendant ROBERT DOUGLAS PENTECOST

Key issues ! Conviction and penalty for offences against Council's tree preservation order.

! Mitigating factors.

! Lack of financial means of Defendant to pay substantial penalty.

! Need for penalty to be effective as a general deterrent.

! Relief by way of direction for payment of moneys (penalties and costs) by monthly instalments.

Statutes ! Environmental Planning and Assessment Act

! Land and Environment Court Act

Hearing dates 21 March 1996

Judgment Reserved.

Date of judgment 22 March 1996

Appearances Prosecutor Mr A.D. Ayling

Defendant Ms Diana Figgis

Solicitors Prosecutor Fox & Stanland

Defendant Nil

Number of pages 11

Summary of orders

! Defendant convicted of each offence charged.

! Penalty imposed in respect of each conviction.

! Defendant to pay Prosecutor's reasonable cost as fixed by Order.

! Order for payment of moneys by monthly instalments.

IN THE LAND AND				Nos. 50040, 50041 and 50042 of 1995

ENVIRONMENT COURT OF			Coram:  Bignold J.

NEW SOUTH WALES				22 March 1996

KU-RING-GAI COUNCIL

Prosecutor

v.

ROBERT DOUGLAS PENTECOST

Defendant

JUDGMENT ON SENTENCE

Bignold J: In my reasons for judgment handed down on 22 December 1995 I found the Defendant to be guilty of three offences against s.125 of the Environmental Planning and Assessment Act 1979 in respect of contraventions of the Council's Tree Preservation Order applying in Ku-Ring-Gai with which he had been charged. I reserved the questions of conviction, penalty and costs.

The reserved questions were considered at a further hearing yesterday.

The Prosecution evidence shows that the Defendant has had a number of prior convictions for offences resulting from breaches of tree preservation orders. The schedule of prior convictions (Exhibit 1) reveals some 10 convictions between December 1988 and November 1993, seven of which involved trees in Ku-ring-gai. Except for the most recent two convictions, the proceedings have been brought in the Local Courts where fines ranging $100 to $1000 have been imposed. The two convictions recorded in this Court on 15 November 1993 for offences committed resulted in penalties of $4,000 and $8,000 being imposed and orders for payment of the Prosecutor's taxed costs (totalling some $14,000).

It is common ground that the previous convictions in this Court were the result of pleas of guilty being entered by the Defendant (who had earlier announced his intention to defend the charges) and that at the time the penalties were imposed, the maximum penalty prescribed for offences against s.125 was $20,000.

The Prosecutor led evidence that the Defendant had not paid the penalties imposed by this Court (although he had paid five monthly instalments of $440 which had been agreed to be paid) or the taxed costs.

Thus, some $10,000 remained unpaid of the combined penalties previously imposed and $14,000 remained unpaid for the taxed costs.

The Prosecutor submitted that the Defendant's failure to pay these outstanding amounts indicated that the Defendant lacked remorse and did not take his obligations seriously.

However, I do not accept this submission since I am satisfied by the Defendant's evidence (on which he was not challenged and which I accept) that the non-payment of these outstanding amounts is a reflection of his lack of financial means.

The Defendant gave evidence that his tree lopping business (which he has conducted principally within Ku-ring-gai for the past 21 years) suffered badly from a breakdown in his marriage a few years ago and his bankruptcy (from which he has since been discharged). He also said, as he had said at his trial, that his business relationships with servants of Ku-ring-gai Council had badly broken down and this had contributed to the previous and present charges being brought about him.

I have obvious sympathy for the Defendant's plight of a broken marriage and bankruptcy and am prepared to accept that these personal stresses may have affected the manner in which he conducted his business affairs. I also accept that his belief that relations had broken down with relevant servants of the Council may have caused him to become lax in his tree lopping business. However, against this last mentioned fact is the fact that the Defendant is a professional tree lopper of some 21 years standing and the community is entitled to expect professional standards of the Defendant which enable him to transcend personal differences with Council servants with whom his business must necessarily brings him into regular working contact.

However, I do accept the Defendants' evidence that he has in the past year or so attempted to rehabilitate both himself and his business from the doldrums into which both had regrettably lapsed. I also accept that the Defendant has no assets and no presently available means or capacity to immediately satisfy any substantial penalty that may be imposed on him.

In all the circumstances, I have concluded that convictions should be recorded in respect of all proven offences and that it is appropriate for a penalty to be imposed.

As I have noted earlier, the maximum penalty for each offence is $100,000 which indicates that the legislature regards seriously offences against s.125 of the Environmental Planning and Assessment Act. However the range of offences created by s.125 is very wide.

The penalties to be imposed of course must be determined principally by reference to the gravity of the offences and the circumstances of their commission including the degree of criminal and moral culpability to be assigned to the Defendant. These matters are chiefly set forthwith in my earlier judgment and I shall not recite what was there said. It is sufficient to say that each offence involved but one tree and that two of the offences involved the unlawful removal of trees located on the same property at Turramurra and the other offence involved the unlawful lopping of a tree located at Gordon in circumstances where some remedial lopping had already been approved by the Council.

In these circumstances, it is appropriate for the purpose of determining the appropriate penalties and applying the principle of totality to regard the two offences committed at the Turramurra property as one offence (cf. Fry v. Paterson - unreported 10 October 1990 per Stein J) and the offence committed at the Gordon property as a separate offence.

Moreover, even though the essential nature of the offences was the failure to obtain the requisite consent from the Council for the lopping in the one case and the removal in the other two cases, it is appropriate, in my opinion, to give some consideration, in assessing the gravity of the offences and the degree of culpability of the Defendant, to the likelihood of consent being granted for the unlawful actions. In the case of the Sydney Red Gum, it is probable that consent would have been forthcoming if it had been demonstrated to the Council's servants that more severe lopping was required than had been permitted and that consent, if sought, would have been probably granted in the case of the two Turramurra trees because they were located on the site of a proposed garage building for which Council's approval had been sought.

Having regard to these matters and to the fact that each offence involved only one tree (one of which, namely the Sydney Red Gum, was suffering epicormic growth and some disease and the other two, namely the Blackbutt and the Turpentine were very common trees found in Ku-ring-gai) in each case located in the rear yeards of residential lots, it must be concluded that the offences should fairly be regarded as falling at the lower end of the wide spectrum of offences provided by s.125 of the Environmental Planning and Assessment Act 1979, in relation to the worst cases of which the maximum penalty is provided cf. Camilleri's Stock Feeds Pty Ltd v. Environment Protection Authority (1992) 82 LGERA 21.

I do not find the Defendant's moral and criminal culpability to be the same in each of the offences, even though I have found that in each case he knew he lacked the requisite Council approval for his action. In the case of the lopped tree located at the Gordon property, the Defendant knew that the property owner had obtained a consent allowing for remedial lopping. Though the Defendant's lopping action far exceeded what that consent had sanctioned, there was nonetheless a degree of uncertainty in the terms of the permitted work, namely:

"Remove epicormic growth, diseased branches and dead wood back to growth points."

Moreover, as I have found in my earlier judgment, the Defendant believed that the lopping undertaken was necessary remedial work (at p.11) although I held that he did not act reasonably in so lopping the tree because of his long professional experience as a tree lopper (at p.12).

All these matters satisfy me that the Defendant's moral and criminal responsibility in committing the offence to the tree located at the Gordon property was somewhat diminished. Seen in its best light, the evidence suggests a serious if not blatant, error of professional judgment by the Defendant in not seeking Council's consent for the additional lopping of the tree.

However, the circumstances of the commission of the offences to the trees at the Turramurra property reflect a more serious degree of moral and criminal responsibility on the Defendant's part, for not only did he know that the requisite Council consent had not been granted for the removal of the two trees but he misrepresented the true facts to the property owner Mrs Turner. Thus, these offences demonstrate much more culpability than a mere error of professional judgment. Rather, they show some element of deceit on the part of the Defendant.

Accordingly, I would regard the commission of the offences at the Turramurra property as being far more serious offences than the offence at the Gordon property and this difference should be reflected in the different penalties to be imposed.

Of course, in determining the appropriate penalties to be imposed, the Defendant's prior convictions should be taken into account. As a professional tree lopper, the fact that he has been 10 times convicted of similar offences in the previous eight years suggests that the Defendant has not been effectively deterred by previously imposed penalties, and that a more severe penalty is now justified.

However, in determining the appropriate penalties to be imposed, it is also appropriate to consider the question of the means of the Defendant to pay any such penalties: see Halsbury's Laws of England 4th edition Volume 11(2) at paragraph 1232 cf. Smith v. The Queen (1991) 25 NSWLR 1 at pp. 11-13 per Kirby P.

As I have earlier found, the Defendant has no assets and no present means or capacity to immediately pay any substantial penalty that may be justified.

Tree lopping is the only work the Defendant has done in his lifetime and despite his record of prior convictions (and the adverse impact they may have had on his business reputation) he sees his continuance in this line of professional work as his only means of economic survival and personal rehabilitation. At the moment the income he derives from his business, (which he is earnestly attempting to restore) is his sole source of income. He estimates that $600 per month is the maximum amount he can currently afford to pay both his outstanding obligations in respect of the penalty and costs owed to the Council by virtue of his prior conviction in this Court and any further obligations that may be imposed in consequence of his conviction in the present proceedings.

The Defendant has sought to restore rapport with the relevant Council servants with whom his tree lopping work brings him into regular and routine contact and is confident now that that relationship is more soundly based that he can rehabilitate both himself and his business and continue as a professional tree lopper without committing further breaches of the Council's tree preservation order.

In fixing the penalties, I propose to impose I have given maximum effect, by way of mitigation of penalties, to all the Defendant's economic, personal and business plights.

However, as was pointed out by Mahoney JA (as he then was) in Smith (at 23):

"A punishment must be both appropriate to the offence and be seen publicly to be such."

In that case, a person who was serving life imprisonment refused to give evidence at a murder trial and was convicted of contempt (by virtue of his serious interference with the administration of justice) and fined $60,000. His appeal against the excessiveness of the fine was dismissed by a majority of the Court of Appeal (Kirby P dissenting).

In considering whether the fine was excessive Mahoney JA at 24 was prepared to assume, without deciding, that "in the end the fine may not be able to be collected". However, he continued:

"But there remains the effect of it on the others. It remains the best of the available alternatives."

In the present case, there is of course no alternative punishment to the imposition of a penalty. In so holding, it was not suggested that s.126 of the Environmental Planning and Assessment Act was realistically available since the Defendant has no interest in the properties on which the trees were growing.

As Brennan J (as he then was) said in Walden v. Hensler [1987] HCA 54; (1987) 163 CLR 561 at 569:

"The chief purpose of the criminal law is to deter those who are tempted to breach its provisions."

The sentence to be imposed in the present case must be effective to deter both the Defendant and any other person from breaching the Council's tree preservation order.

It is for this reason that while the means or capacity of the Defendant to pay a penalty must be relevant to the quantum of any penalty otherwise appropriate to be imposed, that consideration must not be allowed to totally or disproportionally supplant the salutary general deterrent effect of sentencing for offences against the Environmental Planning and Assessment Act.

Obviously, a balance needs to be struck, and in this respect, the competing interests may be partially reconciled or harmonised, by exercising in favour of the Defendant the discretions available under s.54 of the Land and Environment Court Act 1979.

In all the circumstances, I consider that the appropriate penalties to be imposed are $5,000 for the offence of lopping the Sydney Red Gum and $10,000 for the offence of removing the Blackbutt and $10,000 for the offence of removing the Turpentine. In the circumstances the total amount of the penalties of $25,000 should be the subject of an order made under s.54(1) of the Land and Environment Court Act requiring the payment of the penalties by monthly instalments of $400.

The order for payment by instalments should also apply to the amount ordered to be paid by the Defendant for the Prosecutor's reasonable costs. In this respect, I consider the amount of $14,000 claimed by the Prosecutor (as detailed in Exhibit 4), is just and reasonable within the meaning of s.52 of the Land and Environment Court Act. (It is to be noted that the costs ordered by the Court on the previous conviction as taxed by the Registrar were in the order of $14,000).

In fixing the monthly amount of the instalments at $400, I have given effect to the Defendant's present limited financial means. I have not included in fixing the amount of the instalment the outstanding amounts owing as a result of the orders made by this Court on the prior conviction. Those other amounts are, I assume, recoverable pursuant to s.53 of the Land and Environment Court Act. I have been content to exercise the discretion under s.54 of the Land and Environment Court Act by reference to the moneys I have ordered the Defendant to pay to the Council in the current proceedings - both by way of penalties and costs.

For all the foregoing reasons, I make the following orders:

1. The Defendant be convicted of each of the offences as charged.

2. The following penalties be imposed in respect of the convictions -

(i) In proceedings No. 50040 of 1995 - $10,000

(ii) In proceedings No. 50041 of 1995 - $10,000

(iii) In proceedings No. 50042 of 1995 - $ 5,000

3. The Defendant to pay the Prosecutor's reasonable costs in respect of the three prosecutions fixed pursuant to s.52 of the Land and Environment Court Act 1979 in the sum of $14,000.

4. Pursuant to s.54(1) of the Land and Environment Court Act 1979 direct that the moneys so ordered to be paid by orders 2 and 3 be paid by instalments at the rate of $400 per month, the first instalment to be paid on or before 1 May 1996.

5. The Defendant shall pay the moneys referred to in order No. 4 to the Ku-ring-gai Council.

6. The exhibits (except for Exhibit 4) be returned.

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I HEREBY CERTIFY THAT THIS AND THE PRECEDING 10 PAGES ARE A TRUE AND ACCURATE COPY OF THE REASONS FOR JUDGMENT HEREIN OF HIS HONOUR MR JUSTICE BIGNOLD

Associate