Land and Environment Court New South Wales

• Medium Neutral Citation: Council of the Municipality of Kiama v Watkins [2012] NSWLEC 87
• Hearing dates: 26/04/2012
• Decision date: 26 April 2012
• Jurisdiction: Class 5
• Before: Lloyd AJ

Decision

1. The defendant is guilty of an offence against s 125(1) of the Environmental Planning and Assessment Act 1979.

2. The defendant must pay a penalty in the sum of $12,000.00.

3. The defendant must pay the prosecutor's costs in the agreed sum of $15,000.00.

4. The penalty must be paid to the Council in accordance with s 694 of the Local Government Act 1993.

5. The exhibits other than Exhibit B may be returned.

• Catchwords: PROSECUTION - plea of guilty - sentence - breach of tree preservation order
• Legislation Cited: Crimes (Sentencing Procedure) Act 1999, s 3A; Environmental Planning and Assessment Act 1979, s 125(1); Kiama Local Environmental Plan 1996
• Cases Cited: Cameron v Eurobodalla Shire Council (2006) NSWLEC 47; 146 LGERA 349; Fletcher Constructions Australia Ltd v WorkCover Authority (NSW) (1999) 91 IR 66; Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464; Walden v Hensler (1987) 163 CLR 561
• Texts Cited: Nil
• Category: Sentence
• Parties: Council of Municipality of Kiama (prosecutor); Henry John Watkins (defendant)
• Representation: M Seymour (prosecutor); L Waterson (defendant); Russell McLelland Brown Lawyers (prosecutor); Lewis & McKinnon (defendant)
• File Number(s): 51140 of 2011
• Publication restriction: Nil

EX TEMPORE Judgment

1 The defendant, Henry John Watkins, has pleaded guilty to an offence against s 125(1) of the Environmental Planning and Assessment Act 1979, in that he injured a tree in Cathedral Rocks Reserve at Jones Beach, Kiama Downs without the consent of the prosecutor, Kiama Municipal Council and contrary to a tree preservation order made by the Council. The question for determination is the appropriate penalty to be imposed.

2 The reserve is owned and managed by the Council. Kiama Local Environmental Plan 1996, which applied to the reserve at the relevant time, adopted the Environmental Planning and Assessment Model Provisions 1980, other than certain provisions which are not relevant. Clause 8 of the Model Provisions enables a council to make a tree preservation order. On 26 March 1996 the Council duly adopted and published a tree preservation order preventing the ring-barking, cutting down, topping, lopping, removing, injuring or wilful destruction of any tree over a specified size. The tree preservation order stated, consistently with cl 8(5) of the Model Provisions, that any person who contravenes the tree preservation order shall be guilty of an offence.

3 In March 2011 the Council discovered that trees in the reserve were being poisoned. Injury to the trees continued throughout the year and continuing damage was widely reported in the Kiama Independent and the Illawarra Mercury. A sign was posted in the reserve attached to one of the trees in the area. The sign noted that persons found injuring or killing the trees would be prosecuted. Fliers concerning the tree damage were delivered to letterboxes of all houses in the Jones Beach area, including the house occupied by Mr Watkins.

4 Mr Watkins lives at 4 Cliff Drive, Kiama Downs, a property which adjoins Cathedral Rocks Reserve and which slopes down to Jones Beach. On Monday 22 August 2011 a local resident, Mr RD Marsh, saw Mr Watkins in the reserve sawing into the base of a banksia. The banksia was more than three metres in height and had a branch span of more than three metres and was thus protected by the tree preservation order. Mr Watkins did not have the Council's consent to cut into or injure the tree. Mr Watkins admits that it was his intention to remove the tree. In his affidavit he states that there is a swamp in the reserve in front of his property. Water drains from the swamp through a shallow watercourse towards the beach. The tree was close to the watercourse. He formed the opinion that the tree was impeding the draining of water from the swamp because it had been planted close to the watercourse and its roots and leaves were blocking the watercourse. He had also formed the opinion that the impediment to draining the swamp allowed the breeding of mosquitos and other insects, many of which are present at dusk.

5 Mr Watkins says that on the afternoon of 22 August 2011 he went into the reserve with his handsaw to remove some lantana that had grown over the track leading from his property to the beach. He noticed that the tree in question had a cut in its trunk close to the ground. He began to saw into the tree and had made two or three strokes before he was interrupted by Mr Marsh. He says that he intended to remove the tree because he believed it was impeding the draining of water from the swamp.

6 The defendant's home is one of a number of homes at the top of a bank overlooking the reserve and the ocean beyond. The tops of some of the trees in the reserve, but not the tree in question at its then age and height, partly obscure the views from a number of houses in Cliff Drive, including that of Mr Watkins. Mr Watkins says that he did not intend to remove the tree because of a belief that it would in the future restrict the view from his property. He denies having injured or interfered with any other tree in the reserve or elsewhere. Mr Watkins says that immediately upon returning to his property after being interrupted by Mr Marsh he telephoned the Council and told them what had happened. He subsequently attended the Council for a formal record of interview in which he made full and frank admission of the offence.

7 The tree has since died. The tree however is unlikely to have reached more than ten metres in height. It is self evident in looking at the photographs in evidence that in due course, if the tree had remained, it could have obscured part of the view from Mr Watkins' residence.

8 Mr Watkins says that he sincerely regrets his actions and he realises now that he should have obtained the Council's consent before trying to remove the tree. Other than the tree in question, he says that he has not injured or interfered with any other tree in the reserve or elsewhere. There is also evidence of Mr Watkins' otherwise good character and reputation.

9 I now turn to the question of penalty. In considering that question, it is necessary to have regard to the purpose of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999. The following purposes are relevant in the present case:

(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) is not relevant;

(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; and

(g) to recognise the harm done to the victim of the crime and the community.

10 In the present case the harm is to the community, as I shall later explain.

11 By far the primary consideration in sentencing is the objective gravity or seriousness of the offence. See Fletcher Constructions Australia Ltd v WorkCover Authority (NSW) (1999) 91 IR 66 at 77 - 81; Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464. The seriousness of an offence against s 125(1) of the Act is recognised by the maximum penalty of $1.1 million. This is the seriousness with which the legislature regards offences against the Act. Of course, the kind of offences that can be committed against the Act cover a wide range of matters.

12 A particular matter affecting the objective seriousness of the offence in this case is the purpose of the tree preservation order. It was imposed to promote the aims and objectives of the local environmental plan; in particular, the following aims and objectives set out in clause 4(2) of that instrument, namely -

(c) to protect natural and built environmental features of the Council's area,

...

(k) to ensure that residential areas are based on neighbourhood and environmental design principles - including, relevantly, "minimum degradation of flora and fauna and natural habitats",

(l) to protect the Council area's natural heritage through appropriate controls and plans of management, and

...

(s) to ensure the preservation of the landscape and special scenic qualities of the Council area.

It is the infringement of these aims and objectives which give rise to harm to the community.

13 Other matters affecting the objective seriousness of the offence are the fact that the tree in question was not on Mr Watkins' own property but on a public reserve. Instead of obtaining the Council's permission to remove the tree he took matters into his own hands in deciding to remove it. I can infer that, if he had not been interrupted in that task by Mr Marsh, he would have cut the tree down as he intended. I regard the fact that the tree was on a public reserve as a relevant aggravating circumstance.

14 In considering the question of penalty, I do not see in this case a need for any element of specific deterrence. However, for environmental offences I accept that, for the purpose of sentencing, general deterrence is of central importance: see Cameron v Eurobodalla Shire Council (2006) NSWLEC 47; 146 LGERA 349 at 71. There is a clear need for upholding the integrity of the system of planning and development control. This system depends upon persons taking steps to obey the law by ascertaining when development consent is required and then obtaining consent for doing anything that is otherwise prohibited.

15 In considering the question of general deterrence, the penalty imposed must deter, not only the offender, but also those who may be engaged in similar activities from committing like offences, and to ensure that they will take the necessary precautions to ensure that offences do not occur and that the environment is not exposed to a risk of harm. I accept however that for strict liability offences such as this care must be taken to ensure that the penalty imposed does not cause the offender to shoulder an unfair burden of community education: Walden v Hensler (1987) 163 CLR 561 at 570.

16 In the present case there is a number of mitigating circumstances. The first is the fact that the plea of guilty was entered at an early stage. Indeed, Mr Watkins freely admitted to the offence when interviewed. The utilitarian value of the plea, however, is not great. He was caught in the act. Accordingly, the time and expense involved in a defended hearing which would normally be saved is not great. There are other mitigating factors which I take into account, namely, the fact that Mr Watkins has no prior record of previous convictions, that there is evidence that he is a person of otherwise good character, that I accept the fact that he is unlikely to re-offend, that he has demonstrated regret for his actions and has accepted the fact that he should have obtained the Council's consent before attempting to do what he did. There are also the pre-trial admissions by Mr Watkins and his assistance to the Council in its investigation of the offence.

17 I have been referred to a number of cases which bear on the question of parity in sentencing. It must be said that in many of these cases the facts are widely varying and no two cases are identical. I have come to the conclusion that a fine is appropriate.

18 The appropriate fine is $15,000.00 which I reduce in the light of the mitigating factors to which I have referred to $12,000.00. Accordingly, it is appropriate that the following formal orders are made:

1. The defendant is guilty of an offence against s 125(1) of the Environmental Planning and Assessment Act 1979.

2. The defendant must pay a penalty in the sum of $12,000.00.

3. The defendant must pay the prosecutor's costs in the agreed sum of $15,000.00.

4. The penalty must be paid to the Council in accordance with s 694 of the Local Government Act 1993.

5. The exhibits other than Exhibit B may be returned.

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Decision last updated: 01 May 2012