Betland v Environment Protection Authority - [2010] NSWLEC 183

No judgment structure available for this case.

Reported Decision: 175 LGERA 317

Land and Environment Court

of New South Wales

CITATION: Betland v Environment Protection Authority [2010] NSWLEC 183

PARTIES:
APPELLANT
Mr Russell Betland
FIRST RESPONDENT
Environment Protection Authority
SECOND RESPONDENT
Department of Environment Climate Change and Water

FILE NUMBER(S): 60007 of 2010

CORAM: Pepper J

KEY ISSUES: CRIMINAL LAW :- appeal against imposition of four month custodial sentence by lower court - appeal upheld on the basis that there was no evidence justifying imprisonment - instead defendant fined $2,500 - applicable sentencing factors

LEGISLATION CITED: Crimes (Appeal and Review) Act 2001 ss 31(1), 37(1)
Crimes (Sentencing Procedure) Act 1999 ss 3A, 86(4)
National Parks and Wildlife Act 1974 ss 2A, 110
Pesticides Act 1999 s 11
National Parks and Wildlife Regulation 2002 cl 59(1)

CASES CITED: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234
Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121
Environment Protection Authority v Gardner [1997] NSWLEC 212
Environment Protection Authority v Gardner [1997] NSWLEC 169
Environment Protection Authority v Wattke, Environment Protection Authority v Geerdink [2010] NSWLEC 24
Garret on behalf of the Director-General of the Department of Conservation and Environment v House [2006] NSWLEC 492
Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189
Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited (No 2) [2009] NSWLEC 6
Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289
Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
Thomson v Hawkesbury City Council [2009] NSWLEC 151
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Zhou v Auburn City Council; Chen v Auburn City Council [2009] NSWLEC 75

DATES OF HEARING: 23 September 2010

EX TEMPORE JUDGMENT DATE: 24 September 2010

LEGAL REPRESENTATIVES:
APPELLANT
Ms L Rowan
SOLICITORS
N/A
RESPONDENTS
Mr P Barley (solicitor)
SOLICITORS
Environment Protection Authority

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PEPPER J

24 September 2010

60007 of 2010 Russell Betland v Environment Protection Authority and Department of Environment Climate Change and Water

EX TEMPORE JUDGMENT

Introduction

1 HER HONOUR: By amended summons filed 6 August 2010, Mr Russell Betland appeals against the severity of a sentence imposed by Giles LCM of the Local Court in proceedings brought by the Environment Protection Authority for contravention of:

(a) s 11 of the Pesticides Act 1999, in that Mr Betland used a pesticide in a manner which harmed non-target animals (“the first offence”);

Pesticides Act

National Parks and Wildlife Act

2 The learned magistrate imposed the following penalties in respect of the three offences:

(a) in terms of the two offences committed under the Pesticides Act , Mr Betland was fined $2,500 and ordered to pay $76 of court costs in relation to the first offence, and was fined $5,000 and ordered to pay $76 court costs in relation to the second offence. He was also ordered to pay professional costs of $1,500; and

National Parks and Wildlife Act

3 Mr Betland was subsequently granted bail in respect of the custodial sentence.

Disposition of the Appeal

4 I have no hesitation in allowing the appeal with respect to the imposition of the custodial sentence for the third offence given the absence of any evidence before the court below justifying this penalty. On any view it was manifestly excessive and totally unwarranted.

Grounds of Appeal

5 The appeal grounds were that:

(a) Mr Betland was unrepresented in the proceedings below;

(b) the penalties imposed were too severe;

(c) the penalties imposed did not reflect the objective seriousness of the offences; and

inter alia

6 At the hearing Mr Betland did not press the appeal in respect of the penalties imposed pursuant to the two offences committed under the Pesticides Act. This course was sensible given that the penalties imposed by the trial court in respect of the first and second offences were relatively modest.

7 Further, as no arguments were presented to address the first ground of appeal, namely, that Mr Betland was unrepresented before the local court, and given that of itself it is not, in my opinion, a proper ground of appeal, I have considered that this ground of appeal was similarly abandoned.

8 Accordingly, the appeal proceeded only on grounds (b) to (d) and only in respect of the four month custodial sentence handed down in respect of the third offence.

Factual Background Giving Rise to the Offence

9 The only evidence before the learned magistrate was a statement of facts tendered by the prosecutor and a Community Offender Services Probation and Parole Service Court Duty Officer Report dated 24 June 2010 (“the Probation and Parole Report”).

10 The statement of facts revealed the following in respect of the third offence (although the facts contained therein include facts referable to only the first and second Pesticides Act offences, the entirety of the statement of facts is reproduced as relevant background to the commission of the third offence):

Background

4 The EPA is a statutory corporation staffed by officers of the Department of Environment Climate Change and Water ( DECCW ).

5 Fenthion is an insecticide that is not registered for use for the control of birds in NSW and does not have any current permits for use in NSW. Fenthion is poisonous to pigeons at a rate of 3.24-6.61 mg/kg, and minimum lethal dose to Australian Raven 2.0 mg/kg and to Galah 4.35 mg/kg (CSIRO). Fenthion is included on the Poisons List proclaimed under the Poisons and Therapeutic Goods Act 1966 .

6 Russell Betland runs a business called Birds No More. The name of the business explains its nature and purpose. The business is not incorporated but the business name is registered. Mr Betland is not a licensed pest controller.

First offence

8 On 17 July 2009, DECCW’s Environment Line received a report from Mr Ronald Dean of 8 Heckenberg Avenue, Busby who said that a neighbour, Michael Gentles, had seen two men throwing something over Mr Dean’s fence some 10 days before.

9 Mr Dean said that he had investigated and found some unusual seed in his backyard. Mr Dean is a bird lover and feeds wild birds in his backyard but the seed he uses is different to that which he found. Since then, according to Mr Dean, 44 birds had died in his backyard including 38 pigeons, 4 Peaceful Doves ( Geopelia placida ) and 2 Rainbow Lorikeets ( Trichoglossus haematodus ).

10 Mr Dean said that he has grandchildren that play in the backyard of his residence.

11 He undertook remedial measures to cover, clean up and promote the decomposition of the unusual seed that had been placed in his backyard.

12 On 20 July 2009, DECCW officers went to Mr Dean’s house. The DECCW officers took samples of seed, soil and a dead Peaceful Dove. During this inspection DECCW officers observed a flock of approximately 30 Rainbow Lorikeets in a tree and around a bird house in the backyard of 8 Heckenberg Avenue.

13 The samples taken, including the sample from the dead bird, all had traces of the pesticide Fenthion with the exception of a control sample taken from another location in the property.

14 On 30 July 2009, DECCW Officer Greg Abood spoke to Michael Gentles, Mr Dean’s neighbour. Mr Gentles said that on 7 July 2009, he had seen a man throwing material from a small white bucket over the side fence of 8 Heckenberg Avenue on two separate occasions. Mr Gentles took the registration number (ARE 85B) of the white van that the man who had thrown the material was using.

Second and third offences

15 During a conversation between DECCW officer Greg Abood and Mr and Mrs Dean on 30 July 2009, they said that they had seen a number of dead birds at the Miller Shopping Centre on Cartwright Avenue, Miller in weeks prior to the incident at their place. The shopping centre is no more than 100 metres from Mr Dean’s house.

16 DECCW officers went to the Miller Shopping Centre and spoke to the manager who said that some shop owners had complained about the number of pigeons in the Centre. Mr Zheng had looked for pest controllers. He had found an advertisement in the Yellow Pages for “Birds No More”. On calling the number, he had spoken to Russell Betland and organised for him to undertake bird control activities at the Shopping Centre.

17 According to Mr Zheng, Russell Betland subsequently visited the shopping centre several times starting in early July 2009.

18 DECCW officers went on to the roof area of Miller Shopping Complex where they observed two bird cages containing bird seed. They also saw 8 dead pigeons and 1 dead Australian Raven on the roof and 18 dead domestic pigeons near the entrance to the shopping complex. Samples of the seed and dead birds were collected for identification analysis. DECCW laboratory analytical results for samples taken from the dead birds all detected Fenthion as a sample of seed taken from a nearby gutter on the roof also did. However Fention was not detected in the seed samples taken from the traps.

19 On 5 August 2009, DECCW officers Greg Abood and Marcus Leslie returned to the Miller Shopping Centre where they observed flock of over 70 Corellas fly over and around the shopping centre. Later they observed a white van parked in the car park with registration places ARE 85B. They saw two men remove a ladder from the white van and use the ladder to climb onto the roof of Miller Shopping Centre. One man was observed carrying a small white bucket. Greg Abood saw the two men walking on the middle and on the western end of the roof of Miller Shopping Centre and later he observed them climbing down from the roof, placing the ladder on the roof of the white van, entering the vehicle and departing.

20 Shortly after DECCW Officers Greg Abood and Marcus Leslie inspected the roof of the Miller Shopping Complex and observed lots of small piles of seed covered in a fine red dust on the facia edge and on adjacent roof surfaces. DECCW officers took 6 samples of the seed. DECCW laboratory analytical results from these samples detected Fenthion.

Record of interview

Prior misconduct

Pesticides Act

11 As stated above, apart from the Probation and Parole Report, this was the only factual evidence before the learned magistrate. Mr Betland, who was unrepresented, I was told by the parties made very limited remarks in his defence at the hearing below. No transcript of these remarks is available.

12 What is immediately apparent from the statement of facts is the following:

Poisons and Therapeutic Goods Act

1996

(b) second, that other than fatality, there was no evidence as to the extent to which, if any, the birds killed by the fenthion suffered prior to their death.

13 The Probation and Parole Report stated as follows:

Offences: 1.1 Use any prescribed substance for harming of any bird

1.2 Use pesticide in a manner which harms non-target animal x 2

Sources of Information:

PRIOR CONTACT WITH CORRECTIONS

Mr Betland had prior contact with this Service in 2004 by way of a Community Service Order. Departmental records indicated that completed his order in a satisfactory manner. The offender was subject to supervision as a condition of a Section 9 Bond in 2000, Mr Betland was terminated from this Order and his response was reported as borderline.

It has not been possible to verify all the background information in this report.

SUMMARY AND COMMUNITY BASED SENTENCING OPTIONS

Mr Betland is a fifty eight year old male who is currently residing with his son in the Panania area. The offender stated that he has a close and supportive relationship with his ex wife. He indicated that he has positive relationships with his three adult children.

Mr Betland stated that he completed his education at the age of fifteen and entered into various labouring positions. He reported that due to suffering with daily chronic migraine headaches, which caused him loss of employment, he commenced his own business in the bird pest control environment. The offender stated that he has been self employed for a period of twenty five years and currently does not work consistently due to his medical condition. Mr Betland claimed that due to his constant suffering of migraines he is currently prescribed Imigram daily.

Mr Betland does not present with any current mental health, drug and/or alcohol issues, which is supported by Departmental Records.

The offender stated that he had read and agreed with the Environment Protection Authority statement of facts. Mr Betland stated that he has changed his on the job work practices due to the current offences. He also reported that he was aware that his behaviour was unlawful and accepts full responsibility for his criminal behaviour.

Suitability for Supervision

unlikely

As the offender would appear to require a low level of intervention, a period of supervision is not recommended

Community Service Order

unsuitable

Crimes (Sentencing Procedure) Act

Mr Betland reported that his medical condition would prevent him from attending a Community Service Order on a regular basis. Mr Betland declined to sign the relevant undertaking due to concerns in relation to his current medical condition

Periodic Detention Order

ineligible

Crimes (Sentencing Procedure) Act 1999

14 Because of his medical condition Mr Betland was assessed as unsuitable for a community service order. This is so notwithstanding that in 2004 Mr Betland completed a community service order “in a satisfactory manner” and the daily chronic migraine headaches which appear, on the face of the Report, to be the only medical condition that would prevent him from attending to such an order in 2010 appear to have been ongoing prior to his completion of the 2004 community service order. This is inferred by the fact stated in the Report that it was the headaches that caused Mr Betland to lose employment, and therefore, commence his own business in bird pest control, a business in which he has been self employed for a period of 25 years.

Decision of the Court Below

15 In imposing the penalties for the three offences the learned magistrate’s reasoning was stated to be:

You need to understand, Mr Betland, fenthion is a terrible thing to have in the community, to be disseminating around in the community unregulated, uncontrolled. The idea that you are spreading it around the roof of a shopping centre; the idea that you are throwing it over somebody’s fence, and those people have children, that is – words fail me. Words fail me, the risk the community was at from you.

How can I possibly stop you from doing this? How can I possibly send the appropriate denunciation of you for what you have done and how you have imperilled the community? You are a shocking, wicked danger to the community. As I said, the fauna takes a back seat, even though that is the focus of the Acts; it is the public who have been at shocking risk from you and your wanton criminal behaviour.

I have two jobs. I have general deterrence and specific deterrence. Specific deterrence is to try to make sure that you do not act like this again and imperil the community, but the other is to make sure that other people who have access to fenthion are dissuaded by what happens to you by publication of the sentence and by word of mouth. People have to be given pause by what happens to you and so they make sure they are more careful in terms of what they do.

Now, I have read the Probation and Parole report and you are not suitable to perform any other alternatives to a gaol sentence and that, I have to say, in terms of our first sequence, is what is clearly demanded by the seriousness of this offence.

Can I get you to step into the dock for me please, Mr Betland. In terms of sequence 1, you get a modest discount for a plea of guilty. The maximum sentence is for a period of six months.

YOU ARE SENTENCED TO A PERIOD OF FOUR MONTHS IN CUSTODY WHICH DATES FROM TODAY.

IN TERMS OF THE TWO MATTERS UNDER THE PESTICIDES ACT, YOU ARE FINED ON THE FIRST SEQUENCE $2,500 AND $76 COURT COSTS.

ON SEQUENCE 3, $5,000 AND $76 COURT COSTS.

ON OUR FIRST SEQUENCE, PROFESSIONAL COSTS OF $1,500 ANALYSIS COSTS, YOUR CONTRIBUTION IS $654 AND EACH MATTER CARRIES $76 COURT COSTS.

You will be taken down into custody by Corrective Services momentarily. This is Mr Betland who has been sentenced to custody for four months. I return your Pesticides Act.

16 It appears that by reason of s 86(4) of the Crimes (Sentencing Procedure) Act 1999 (“the CSPA”) the learned magistrate was, in the absence of an assessment report that Mr Betland was a suitable person for community work, unable to make a community service order as an alternative to a custodial sentence.

Regulatory Framework

17 Section 11(1) of the Pesticides Act states as follows:

11 Harm to animals or plants resulting from pesticide use

(a) harms any non-target animal or non-target plant, or
(b) if there is no approved label or permit for the pesticide—harms any animal or plant.

18 Section 110 of the National Parks and Wildlife Act provides:

110 Use of certain substances for harming fauna

Maximum penalty: 30 penalty units or imprisonment for 6 months or both.

(3) A person shall not be convicted of an offence arising under subsection (1) or (2) if the person proves that the act constituting the offence was done under and in accordance with the regulations.

(4) The regulations may make provision for or with respect to exempting, subject to the prescribed conditions and restrictions (if any), any person or class or description of persons from the provisions of subsection (1) or (2) or both.

substance

19 Clause 59(1) of the National Parks and Wildlife Regulation 2002 further provides:

59 Prescribed substances

Poisons and Therapeutic Goods Act 1966

20 Somewhat disproportionately, the maximum penalty for an individual for a breach of s 110 of the National Parks and Wildlife Act is $3,300, or more severely six months imprisonment, or both.

Proceedings and Evidence Before the Land and Environment Court

21 Before this Court, Mr Betland relied on the statement of facts and the Probation and Parole Report which were before the learned magistrate.

22 Mr Betland also relied on an affidavit sworn by him and filed in the Court on 21 September 2010 (although not sought and to the extent necessary, I grant leave to Mr Betland to adduce this evidence on the basis it is in the interests of justice to do so). In that affidavit Mr Betland stated the following:

(a) that he was 59 years of age;

(b) that he had been self employed initially as a pest controller and then as a bird controller, for over 10 years. As a pest controller, he had worked with pesticides;

(c) the work that he usually performed was to erect barriers or spikes and to block off access points to prevent birds accessing or roosting in residential or commercial properties;

(d) that the offences he committed were “well outside the work that I usually performed”. Further, that he had made numerous visits to the client engaging him to remove the pigeons and that he had tried various options, all of which had failed to remove the pigeons from the premises, prior to poisoning them;

(e) that the decision to use a pesticide to remove the pigeons was “extremely foolish” and that the decision to attempt to eradicate the pigeons at 8 Heckenberg Avenue, Busby, at which there was a food source for the birds, was completely “spur of the moment”;

(f) that he fully accepted that he did the wrong thing and as a consequence that he was “fully cooperative” with the investigators and readily admitted his guilt before the Local Court. Moreover, that he was genuinely sorry;

(g) that he had a great love and respect for birds generally and pigeons in particular, having kept and raced pigeons for 35 years at his home. In addition, Mr Betland owns three dogs and was previously involved in dog breeding;

(h) that he was distressed by the pain that he had caused the birds; and

23 Mr Betland was cross examined on the contents of his affidavit. The cross examination revealed that Mr Betland:

(a) had had possession of the fenthion for a considerable period of time prior to the commission of the offence;

(b) had previously eradicated birds but no longer did so;

(c) knew, at the time of the commission of the offences, that what he was doing was illegal but carried out the poisoning anyway;

(d) was, in fact, not “fully cooperative” with the authorities insofar as he had initially lied to the investigator by telling the investigator that another person had thrown the poisoned seed over the fence at 8 Heckenberg Avenue. It was only towards the very end of the interview that Mr Betland told the truth as to the circumstances giving rise to the offences;

(e) did not know what the consequences would be in terms of the suffering of the birds he intended to eradicate by poisoning them with fenthion; and

Nature of an Appeal Against the Severity of Sentence

24 An appeal against the severity of sentence is made to this Court as of right under s 31(1) of the Crimes (Appeal and Review) Act 2001 (“the Review Act”). The appeal is dealt with by way of rehearing on the basis of certified transcripts and evidence adduced in the Court below (s 37(1) of the Review Act). The Court may grant leave to adduce new evidence only if it is satisfied that it is in the interests of justice to do so (s 37(2) of the Review Act). In Thomson v Hawkesbury City Council [2009] NSWLEC 151 at [44] I describe in more detail the nature of such an appeal. I adopt those observations here.

The Custodial Sentence Was Manifestly Excessive

25 While an appeal under s 31 of the Review Act is not restricted to a determination of whether the decision of the court below is infected with error, but is a rehearing on the evidence given before the trial court, in my view it is nevertheless appropriate to make the following observations about the decision appealed from.

26 First, it is clear reading the judgment that her Honour was motivated in awarding a custodial penalty to Mr Betland by a perceived risk to human health from the dissemination of the fenthion contaminated seed. However, there was no evidence before her Honour as to what this risk was, or indeed if there was any risk at all. The fact that fenthion is included on the Poisons List proclaimed under the Poisons and Therapeutic Goods Act may assist in drawing an inference as to its toxicity, however, such an inference is, in my opinion, insufficient to underpin the imposition of a custodial sentence. There was certainly no evidence that Mr Betland was “a shocking, wicked danger to the community”, or that “it is the public who have been at shocking risk”. Such a finding simply could not be supported on the material before the trial court.

27 Second, and having regard to the severity of the sentence imposed, it cannot be said that the learned magistrate’s reasons for doing so were adequate (Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [57]-[59]). This observation is made fully cognisant of the enormous pressures and resource constraints that local court magistrates find themselves under in the execution of their judicial function.

28 And, while a judicial officer is not obliged to spell out every detail in their process of reasoning, it is nevertheless essential to expose his or her reasons for the purpose of resolving any future contest. This includes the imposition of an appropriate penalty for the commission of a criminal offence. In my opinion, such exposure is all the more acute where that penalty will result in the deprivation of liberty of an individual.

29 In the present case this elucidation did not occur. It is not known, for example, to what extent other subjective factors were considered by her Honour; why it was that Mr Betland only received a “modest discount” for his plea of guilty when it was clearly entered at the first available opportunity; and to what extent her Honour considered the principles of evenhandedness or totality when sentencing Mr Betland.

Appropriate Sentence for the Third Offence

30 One issue may be disposed of at the outset. Mr Betland argued that the imposition of a custodial sentence for the offence against s 110 of the National Parks and Wildlife Act infringed the De Simoni principle (R v De Simoni (1981) 147 CLR 383), first, because he was sentenced on the basis of a perceived risk to human health and safety which could have been the subject of more serious charges but was not, and second, because the offences in question were all directed towards harm to fauna only.

31 I do not accept this submission as correct. The De Simoni principle states that (at 389):

…a judge, in imposing a sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.

32 It does not follow from an application of the principle that harm to the environment cannot be taken into account in a determination of the appropriate penalty to be imposed in relation to the offence. Harm to the environment includes any harm, actual or potential, to human health. Accordingly, to take into account the risk to human health posed by Mr Betland’s activities is not a breach of the De Simoni principle, but is a proper factor to consider in determining an appropriate sentence.

Applicable Principles

33 On a rehearing such as this, the Court must determine for itself the appropriate sentence that should be imposed for each of the offences. In determining the appropriate sentence the Court must take into account both the objective gravity of the offence, together with the subjective circumstances of the applicant (Thomson at [65] and the authorities cited thereat; Zhou v Auburn City Council; Chen v Auburn City Council [2009] NSWLEC 75 at [19]).

34 Relevantly s 3A of the CSPA provides that the purpose of imposing a sentence on an offender includes:

3A Purposes of sentencing

Objective Gravity

35 The primary factor to consider in determining an appropriate sentence is the objective gravity or seriousness of the offence. It fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit insofar as the sentence must not exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances (Veen v The Queen (No 2) (1988) 164 CLR 465 at 472, 485-486, 490-491 and 496; Hoare v The Queen (1989) 167 CLR 348 at 354). It fixes the lower limit because allowance for the subjective factors of the case ought not produce a sentence which fails to reflect the objective gravity or seriousness of the offence (Pittwater Council v Scahill (2009) 165 LGERA 289 at [50]).

36 In determining the objective gravity or seriousness of the offence, the circumstances of the offence to which the Court may have regard relevantly include (see Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 at [163]; Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 at [110], both cited in Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited (No 2) [2009] NSWLEC 6 at [36]-[38]):

(a) the maximum penalty for the offence;

(b) the objective harmfulness of Mr Betland’s actions;

(c) Mr Betland’s state of mind in committing the offence;

(d) Mr Betland's reasons for committing the offence;

(e) the foreseeability of risk of harm to the environment;

(f) the practical measures to avoid harm to the environment; and

Maximum Penalty

37 The maximum statutory penalty is of considerable significance in determining the objective gravity of the offence. In Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 (at 698) it was stated that:

the maximum penalty available for an offence reflects the "public expression" by parliament of the seriousness of the offence ...

38 In Markarian v The Queen (2005) 228 CLR 357 (at [31]), the High Court unequivocally referred to the need to have regard to the maximum penalty as a legislative yardstick to enable comparison between the worst possible case and that currently before the Court.

39 Notwithstanding the minimal maximum fine for an individual for an offence committed under the National Parks and Wildlife Act ($3,300), the imposition of a maximum custodial sentence of six months demonstrates the seriousness with which offences against the National Parks and Wildlife Act are viewed by the legislature.

Objective Harmfulness of Mr Betland’s Actions

40 Mr Betland’s irresponsible use of the pesticide plainly contravened the objects of the National Parks and Wildlife Act. These include (s 2A(1) of that Act):

2A Objects of Act

(c) fostering public appreciation, understanding and enjoyment of nature and cultural heritage and their conservation,

(d) providing for the management of land reserved under this Act in accordance with the management principles applicable for each type of reservation.

41 Further, given the fatal effect the seed contaminated with the pesticide had on the birds, Mr Betland plainly caused harm to the environment.

42 But having made this finding, in the absence of any further evidence, and notwithstanding that the harm to the dead birds was absolute, it cannot be said that the overall harm to the environment is anything, as the respondents submitted, other than at the low end of the scale.

Mr Betland’s State of Mind and Reasons for Committing the Offence

43 Although Mr Betland denied in cross examination that he was motivated purely by “cash”, I nevertheless find that the unlawful use of the pesticide was for financial gain inasmuch as Mr Betland desired to complete the task which he had been engaged to do (namely, the removal of the pigeons from the roof of the shopping mall for financial reward) (Director-General, Department of Environment and Climate Change v Rae (2009) 168 LGERA 121 at [11]-[13]).

44 I also find that the unlawful use was deliberate and was known by Mr Betland to be illegal at the time.

45 A further consideration in an examination of Mr Betland’s state of mind is his cavalier attitude towards the possible suffering of the birds that he fatally poisoned. While I accept that Mr Betland feels genuine distress for the consequences of his actions, the fact remains that he used the pesticide in the knowledge that he did not know what the consequence of its use would be on the birds, other than their death. That is to say, he deployed the pesticide absent any consideration of the potential suffering it could cause the birds who came into contact with it.

Practical Measures and Mr Betland’s Control Over the Activities and Foreseeability of Risk of Harm to the Environment

46 It was not suggested that Mr Betland did not have control over the unlawful use of the pesticide and thus could not have taken practical measures to avoid the harm. At all times he did and could have.

47 I also find that it was reasonably foreseeable that the spreading of poisonous seed would cause harm to the birds and thus to the environment.

Conclusion on Objective Circumstances

48 In my view, the commission of the third offence is of moderate objective gravity. Although the environmental harm caused by it was at the lower end of the scale, Mr Betland’s conduct was nevertheless deliberate, was known at the time to be unlawful and was committed by him for reasons of financial expediency and with little regard to the possible consequences. These factors aggravate the objective seriousness of the offence.

The Subjective Circumstances of Mr Betland

49 A proportionate sentence requires a court to take into account any personal or mitigating factors present (Gittany at [144] and the authorities cited thereat).

50 The subjective circumstances of Mr Betland to be considered relevantly include:

(a) any prior criminal record;

(b) any plea of guilty;

(c) any contrition and remorse;

(d) any cooperation with regulatory authorities; and

51 Having regard to the subjective circumstances I find that the evidence reveals:

(a) Mr Betland does have prior convictions (this is evident from the Probation and Parole Report);

(b) it is not known if Mr Betland is of good character. No references or other evidence were tendered on his behalf in this regard;

(c) Mr Betland has expressed genuine contrition and remorse for his conduct;

(d) there had been cooperation with the authorities, albeit not immediate as evidenced by the initial lies told by Mr Betland during his questioning by the investigating authorities. Nevertheless this cooperation extended to him pleading guilty at the first available opportunity and his acceptance of the respondents’ statement of facts in the court below;

(e) Mr Betland pleaded guilty to the offence at the first available opportunity. Accordingly he is entitled to a discount to the full extent of 25% ( R v Thomson; R v Houlton (2000) 49 NSWLR 383 at [152]);

Fines Act

(g) in the circumstances of this appeal, namely, that Mr Betland has had to seek bail to avoid spending an extended period of time in gaol, I find that he is unlikely to reoffend given that he is now fully cognisant of the very serious penalties that can be imposed for the unlawful killing of birds and use of pesticides;

Conclusion on Subjective Considerations

52 The subjective considerations of Mr Betland operate to mitigate the penalty imposed, but not to any significant degree given, in particular, his failure to initially tell the truth to the investigating authority.

Deterrence

53 In Thomson I quoted Gittany in relation to the applicable principles with respect to deterrence as a component of an appropriate penalty for offences (Thomson at [114]). I adopt and repeat those principles here (and see Rae at [8]-[9]).

54 One of the purposes of a court imposing a sentence is to prevent crime by deterring both the offender and other persons from committing similar offences.

55 I accept that specific deterrence is warranted in the circumstances of the commission of the present offence.

56 I also accept that general deterrence must be considered so that others employed in the business of pest control, or indeed anyone who seeks to rid themselves of pests, do not take matters into their own hands by the unlawful use of pesticides to achieve their aim, particularly in circumstances where the potentially harmful consequences of this use is not fully appreciated or known.

Consistency in Sentencing

57 A relevant consideration in sentencing is the ascertainment of the existence of a general pattern of sentencing by the court for offences such as the offence in question (Gittany at [179]-[183]). The proper approach is for the Court to look at (Gittany at [182]):

R v Morgan

Capral Aluminium Ltd v Workcover Authority of NSW

58 Of course care must be taken because each case is different and a sentence in one case does not demonstrate the limits of a sentencing judge’s discretion (AxerPty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 365 and CabonneShire Council v Environment Protection Authority (2001) 115 LGERA 304 at 312).

59 Mr Betland is only the second person in New South Wales to have been gaoled for the commission of an environmental offence. This is no doubt because, as Preston CJ articulated in Plath v Rawson (2009) 170 LGERA 253 (at [181]; see also Environment Protection Authority v Wattke, Environment Protection Authority v Geerdink [2010] NSWLEC 24 at [102]-[109]):

(a) where the offender’s conduct involves a considerable degree of willfulness and deception: Environment Protection Authority v Gardner [1997] NSWLEC 169 (7 November 1997) at pp 1, 2, 3, 5; R v Moore [2001] QCA 431; [2003] 1 Qd R 205 at [10], [13], [21]; Dempsey v The Queen [2002] QCA 45; (2002) 127 A Crim R 113 at [3], [4]; R v Borrett [2004] NZRMA 248 at [7], [10], [19]-[20]; R v Conway [2005] NZRMA 274 at [71]; R v Garrett [1997] 1 Cr App Rep (S) 109 at 111; R v Sissen [2001] 1 WLR 902 at [51]; and R v Kelleher [2008] EWCA Crim 3055; [2009] 2 Cr App R (S) 25 at [8], [24], [25];

(b) where an actuating reason for the offender’s conduct is to make a profit or save an expense: Environment Protection Authority v Gardner at p 2; Dempsey v The Queen at [4]; R v Conway at [76]; R v Tapscott [2007] EWCA Crim 1787 at [11]; R v Kelleher at [3]-[6], [8], [24], [25], [30] and [32];

(c) where the offender’s conduct posed a high level of risk to or actually caused considerable harm to the environment and the public: Environment Protection Authority v Gardner at p 3; R v Moore at [11], [13], [17]; Dempsey v The Queen at [5]; R v Borrett at [10], [17], [19]; R v Conway at [71]; R v Sissen at [51]; R v Garrett at 111;

(d) where the offender’s conduct is over an extended period or is of a repetitive nature: Environment Protection Authority v Gardner at pp 2, 5; R v Moore at [13], [21]; R v Borrett at [7], [10]; R v Conway at [71]; R v Tapscott at [11] and [12]; R v Kelleher at [3]-[6], [8], [24], [25], [31] and [33]; and

Environment Protection Authority v Gardner

R v Moore

Dempsey v The Queen

R v

Conway

R v Sissen

R v Kelleher

60 Fortunately an insufficient number of these factors are present in the commission of most environmental offences. However, many, if not all, were present in Environment Protection Authority v Gardner [1997] NSWLEC 212 (14 August 1997). Mr Gardner is the other person in New South Wales who has been gaoled for the commission of an environmental offence. In that case, the defendant was found guilty of a tier 1 pollution offence of wilfully disposing of waste in a manner which was likely to harm the environment under s 5(1) of the Environmental Offences and Penalties Act 1989. The defendant operated a caravan park and was discovered to have constructed a sealed system of bypass plumbing in order to discharge effluent from a caravan park directly into a river, rather than incur costs for a pump out and road tanker disposal as required by the Port Stephens Council. The illegal pumping and discharge into the river had occurred for a period of 128 weeks and caused viral contamination to sediments near the outlet pipe. The activity was found to have posed a grave health risk to the community.

61 In the judgment on sentence (Environment Protection Authority v Gardner [1997] NSWLEC 169 (7 November 1997)), Lloyd J also found that the defendant knew his activities were illegal and would harm or were likely to harm the environment. There were multiple aggravating features in that the offence was not an isolated or single act of pollution, the offence was committed for financial gain, the defendant went to great lengths to conceal the illegal activity, and the harm effected the community as a whole and the defendant was aware that his actions caused environmental harm but showed little remorse. The defendant was sentenced to 12 months imprisonment with a non-parole period of nine months, and was ordered to pay a penalty of $250,000 (the maximum fine at that time) and the prosecutor’s costs of $170,000.

62 The facts in Gardner are markedly far more serious than the offences before me, including for present purposes the offence against s 110 of the National Parks and Wildlife Act.

63 Thus having regard to the factual matrix resulting in a custodial sentence being imposed in Gardner and the facts giving rise to the commission of the offences in these proceedings, it is tolerably clear that in terms of evenhandedness, imprisonment is not warranted in the present circumstances.

64 Moreover, in considering whether imprisonment is the appropriate punishment, s 5(1) of the CSPA requires that a court not sentence an offender to imprisonment unless it is satisfied that no penalty other than imprisonment is appropriate, having regard to all the possible alternatives. In the present case a fine is an appropriate alternative.

65 Quite properly, the respondents do not cavil with this conclusion. To the contrary they have endorsed it.

66 The respondents provided the Court with the decision in Garreton behalf of the Director-General of the Department of Conservation and Environment v House [2006] NSWLEC 492. In that case, the defendant was convicted and fined the sum of $9,000 together with an order for costs for the killing of 27 Welcome Swallows and the injuring of at least another 51 (the maximum penalty was approximately $96,800). The defendant had applied a polybutene bird repellent to overhead pipes in an underground carpark to repel birds that were roosting in the carpark. The swallows ate every 15 minutes and fed on the wing. When the birds came into contact with sticky substance they consequently could not fly, and could not eat and therefore died. Although the environmental harm was objectively serious, there were a number of mitigating factors taken into account which included a guilty plea at the earliest opportunity, express contrition and remorse, full cooperation and no prior record for any offence of any kind.

Totality Principle

67 The totality principle is a principle of sentencing which is to be applied when sentencing an offender who has committed more than one offence. The effect of the principle is to require a court which has passed a series of sentences, each calculated in relation to the offence for which it is imposed, to review the aggregate sentence and consider whether the aggregate is “just and appropriate” and reflects the total criminality before the court (Rawson at [220]-[222] and the authorities cited thereat).

Conclusion

68 I have resolved that a fine is an appropriate penalty in respect of the commission of the third offence. While I might have been tempted to make a community service order, I am similarly fettered by the operation of s 86(4) of the CSPA. Mr Betland has been assessed as unsuitable to perform community service by the Probation and Parole Service and I am bound by that assessment in the absence of obtaining any other report. I do not consider that the facts of this case warrant any further delay in the finalisation of the penalty to be imposed on Mr Betland.

69 Having regard to the decision in Garret above, although acknowledging it is not in respect of the specific offence to which Mr Betland has pleaded guilty, and to the objective and subjective circumstances of the commission of the offence, I find that a sentence of $2,500 is appropriate in light of the maximum monetary penalty that I can impose of $3,300. A fine of this relative magnitude reflects the total criminality involved in the commission of the offence by Mr Betland. It includes a discount for the earliest available plea of guilty and an application of the totality principle.

Costs

70 No application was made before me to vary the costs orders made below and I do not intend to do so.

71 In relation to the costs of this appeal, in light of the fact that Mr Betland did not decide to abandon his appeal with respect to the offences committed under the Pesticides Act until the hearing of the appeal, but given that Mr Betland was successful in his appeal against the penalty imposed in respect of the third offence, albeit in circumstances where the respondents agreed that the imposition of a custodial sentence was unjustified, in my view, the appropriate order is that each party bear its costs of the appeal. This was not opposed by the parties.

Orders

72 The orders of the Court are therefore:

(1) appeal allowed in respect of the sentence imposed for the commission of the offence against s 110 of the National Parks and Wildlife Act ; and

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Citations

Betland v Environment Protection Authority [2010] NSWLEC 183

Cases Citing This Decision

0

Cases Cited

25

Statutory Material Cited

5

Thomson v Hawkesbury City Council [2009] NSWLEC 151

Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110

R v De Simoni [1981] HCA 31

CITATION:	Betland v Environment Protection Authority [2010] NSWLEC 183
PARTIES:	APPELLANT Mr Russell Betland FIRST RESPONDENT Environment Protection Authority SECOND RESPONDENT Department of Environment Climate Change and Water
FILE NUMBER(S):	60007 of 2010
CORAM:	Pepper J
KEY ISSUES:	CRIMINAL LAW :- appeal against imposition of four month custodial sentence by lower court - appeal upheld on the basis that there was no evidence justifying imprisonment - instead defendant fined $2,500 - applicable sentencing factors
LEGISLATION CITED:	Crimes (Appeal and Review) Act 2001 ss 31(1), 37(1) Crimes (Sentencing Procedure) Act 1999 ss 3A, 86(4) National Parks and Wildlife Act 1974 ss 2A, 110 Pesticides Act 1999 s 11 National Parks and Wildlife Regulation 2002 cl 59(1)
CASES CITED:	Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 Environment Protection Authority v Gardner [1997] NSWLEC 212 Environment Protection Authority v Gardner [1997] NSWLEC 169 Environment Protection Authority v Wattke, Environment Protection Authority v Geerdink [2010] NSWLEC 24 Garret on behalf of the Director-General of the Department of Conservation and Environment v House [2006] NSWLEC 492 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited (No 2) [2009] NSWLEC 6 Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 Thomson v Hawkesbury City Council [2009] NSWLEC 151 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Zhou v Auburn City Council; Chen v Auburn City Council [2009] NSWLEC 75
DATES OF HEARING:	23 September 2010
EX TEMPORE JUDGMENT DATE:	24 September 2010
LEGAL REPRESENTATIVES:	APPELLANT Ms L Rowan SOLICITORS N/A RESPONDENTS Mr P Barley (solicitor) SOLICITORS Environment Protection Authority