City of West Torrens Vs Tonks

LG Leader April 2017

Kelledy Jones Lawyers was instructed by the City of West Torrens to prosecute Mr Craig Tonks who elected to be prosecuted for two counts of burning matter by fire in the open on domestic premises contrary to section 34 of the Environment Protection Act 1993 (“the EP Act”) and clause 5(3) of the Environment Protection (Burning) Policy 1994 (“the Policy”), offending for which he had originally received expiation notices in the amount of $100 each.

Mr Tonks was subsequently charged on Complaint with two counts of breaching the Policy, namely that on 17 May 2015 he contravened a mandatory provision of an environment protection policy by causing or permitting the burning of matter by a fire in the open on domestic premises contrary to section 34(2) of the EP Act and clause 5(3) of the Policy; and on count 2 that on 7 June 2015 he intentionally or recklessly contravened a mandatory provision of an environment protection policy by causing or permitting the burning of matter by a fire in the open on domestic premises contrary to section 34(1) of the Act and clause 5(3) of the Policy.

Mr Tonks pleaded not guilty to both counts and the matter proceeded to trial where Mr Tonks contended he built and lit the fires principally for the preparation of food, and accordingly, was afforded a “defence” to the charges under clause 5(5) of the Policy. It was for Mr Tonks to prove this defence on the balance of probabilities.

On 7 February 2017 Her Honour Judge Cole handed down judgment as against Mr Tonks in the Environment Resources and Development Court, finding him guilty of both counts as charged. A link to the judgment can be found here:

http://www.courts.sa.gov.au/Judgments/Lists/Judgments/Attachments/3078/2017%20SAERDC%208.pdf

Sentencing submissions were made by the parties on 10 March 2016, Mr Tonks was not in attendance. Rather, his solicitor advised Her Honour he was currently on a pre-arranged holiday in the US, a fact which had not been indicated to the Court when the matter was listed for submissions. On 6 April 2017 Her Honour delivered judgement in this matter, recording a councillor against Mr Tonks on both counts, imposing a fine of $100 on count 1 and $4,000 on count 2, and ordering that Mr Tonks pay the council’s costs, based on the Magistrate Court scale of $5,135, together with a victims of crime levy on both counts.

What distinguishes this case from the ordinary course is that Mr Tonks is a Senior Investigator with the Environment Protection Authority, the Authority tasked with environmental protection in this State, and Mr Tonks is authorised to investigate offences committed under the Act. This, of course, includes offences committed contrary to the Policy.

Despite submissions made on his behalf during sentencing to the contrary, far from indicating any contrition or remorse for this offending, Mr Tonks has now appealed the Courts decision.

We will continue to keep you updated in relation to this matter.