Thomson v Martin [1991] NSWLEC 31 (7 March 1991) [1991] NSWLEC 3

Land and Environment Court of New South Wales

CITATION : Thomson v Martin [1991] NSWLEC 31 (7 March 1991) [1991] NSWLEC 3 PARTIES : Thomson v Martin FILE NUMBER(S) : 50106 of 1990 CORAM: Bignold J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Local Government Act 1919 CASES CITED: DATES OF HEARING: DATE OF JUDGMENT: 03/07/1991

LEGAL REPRESENTATIVES:

JUDGMENT:

Bignold J.: On 30th November, 1990 I found the Defendant guilty of an offence against s.125 of the Environmental Planning and Assessment Act 1979 involving a contravention of a tree preservation order in force under that Act.

The Defendant had been charged with cutting down a spotted gum tree situate at property known as No. 14A Prince Alfred Parade, Newport without the consent of the Warringah Shire Council required under the tree preservation order.

At his trial the Defendant had sought to raise two defences (i) the statutory defence provided by the tree preservation order that the tree cut down was dead or dying and (ii) the common law basis of exculpation of "honest and reasonable mistake" (that the Council had granted the requisite consent for the cutting down of the tree).

Both these defences failed for the reasons stated in my judgment of 30th November, 1990.

On the hearing on the question of penalty Counsel for the Defendant has raised a number of matters which he submits mitigate the proven offence and should be reflected in the penalty to be imposed in respect of any conviction for that offence. Except for the fact that the Defendant is likely to experience financial difficulty in paying any fine because his earnings from his tree lopping business have been small during the past 3 years because of wet weather, all of the matters raised by the Defendant's submission are adequately accommodated by the fundamental sentencing principle that the sentence should reflect the nature of the offence, the circumstances of its commission and the Defendant's criminal responsibility in committing the offence.