Council of the Municipality of Kiama v Watkins [2012] NSWLEC 87

Council of the Municipality of Kiama v Watkins [2012] NSWLEC 87

The offence warranted a fine because the defendant intentionally attempted to remove a protected tree without consent, on a public reserve, thereby infringing the environmental and scenic objectives protected by the tree preservation order and causing community harm. General deterrence was important, but specific deterrence was unnecessary. The court fixed an appropriate fine of $15,000 and reduced it to $12,000 for mitigating factors including the early guilty plea and admissions, no prior convictions, good character, unlikely reoffending, regret and assistance to the Council.

Jurisdiction
Australia
Judgment Date
26 April 2012
Procedural Posture
Class 5 Prosecution for an Offence Against S 125(1) of the Environmental Planning and Assessment Act 1979 / Sentence Following Plea of Guilty
Outcome
Defendant found guilty and ordered to pay a penalty and costs.
Legal Topics
['tree Preservation Order' 'injury to Protected Tree Without Consent' 'environmental Offence' 'general Deterrence' 'mitigating Factors']
['environmental Law' 'planning and Development' 'criminal Sentencing'] ['tree Preservation Order' 'injury to Protected Tree Without Consent' 'environmental Offence' 'general Deterrence' 'mitigating Factors']

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Procedural Posture

Class 5 Prosecution for an Offence Against S 125(1) of the Environmental Planning and Assessment Act 1979 / Sentence Following Plea of Guilty

Legal Issues

  1. 1 ["What penalty should be imposed for the defendant's admitted breach of a tree preservation order by injuring a protected tree in Cathedral Rocks Reserve without Council consent." 'Whether the objective seriousness of the offence, the public reserve setting, community harm, general deterrence and mitigating factors justified a fine and in what amount.']

Ratio Decidendi

The offence warranted a fine because the defendant intentionally attempted to remove a protected tree without consent, on a public reserve, thereby infringing the environmental and scenic objectives protected by the tree preservation order and causing community harm. General deterrence was important, but specific deterrence was unnecessary. The court fixed an appropriate fine of $15,000 and reduced it to $12,000 for mitigating factors including the early guilty plea and admissions, no prior convictions, good character, unlikely reoffending, regret and assistance to the Council.

Court Disposition

Defendant found guilty and ordered to pay a penalty and costs.

Orders

  • ['The defendant is guilty of an offence against s 125(1) of the Environmental Planning and Assessment Act 1979.' 'The defendant must pay a penalty in the sum of $12,000.00.' "The defendant must pay the prosecutor's costs in the agreed sum of $15,000.00." 'The penalty must be paid to the Council in accordance with s...