Environment Protection Authority v Brazel (No 3)

[2002] NSWLEC 120

Reported Decision: 121 LGERA 156

Land and Environment Court

of New South Wales

CITATION:	Environment Protection Authority v Brazel (No 3) [2002] NSWLEC 120
PARTIES:	PROSECUTOR Environment Protection Authority DEFENDANT Donald William Brazel
FILE NUMBER(S):	50018 of 2001
CORAM:	Talbot J
KEY ISSUES:	Prosecution :- finding of offence proved but not proceed to conviction
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act, s 10, s 10(1)(a), s 10(3), s 10(3)(d) Protection of the Environment Operations Act 1997 s 120, s 241
CASES CITED:	Thorneloe v Filipowski (2001) 52 NSWLR 60
DATES OF HEARING:	14/06/2002
EX TEMPORE JUDGMENT DATE :	06/14/2002
LEGAL REPRESENTATIVES:	PROSECUTOR Mr D J Jordan (Barrister) SOLICITORS Environment Protection Authority DEFENDANT Mr P G Maident (Barrister) SOLICITORS Robson & Oliver

JUDGMENT:

IN THE LAND AND Matter No. 50018 of 2001
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 14 June 2002

Environment Protection Authority
Prosecutor

v
Donald William Brazel

Defendant

REASONS FOR JUDGMENT


1. HIS HONOUR: The prosecutor has proved an offence that the defendant did pollute waters, contrary to the provisions of s 120 of the Protection of the Environment Operations Act 1997 (“the PEO Act”), within the extended definition in that Act, in that liquid of a prescribed description, namely pesticide, was placed in a position where it fell, descended or percolated into the street gutter and a culvert under a road and a drain beyond.

2. The defendant’s employee was engaged in the application of pesticide to the soil below a concrete slab in the garage of a private residence at Toormina. It is appropriate to refer back to the reasons published on 5 February 2002, in par 28 and par 29, which explain what may have happened and what the expectations were in the circumstances, including the opinions held by the defendant in regard to the prospect of the escape of pesticide, in the circumstances of the application that occurred on the relevant day.

3. The fact is that no causal link or explanation of the causal link has been provided. The Court has, nevertheless, found that because the chemical was, in fact, transported, by some means or other, from the concrete slab to the gutter, then that is sufficient proof for the purposes of the prosecutor’s case. It is also important to note what was said in the earlier judgment about the likely prospect of the event occurring and the Court’s lack of satisfaction in that respect (par 63).

4. The pesticide contained the chemicals ethyl-chlorpyrifos and bifenthrin. Both are highly toxic. Ethyl-chlorpyrifos is removed from the water column rapidly by binding onto sediment. It has a half-life of two hundred days, whereas bifenthrin is stable in water and, therefore, is mainly associated with soil and sediment and may persist for some time.

5. The prosecutor claims that there was actual harm within the definition of harm and environment, as contained in the Dictionary to the PEO Act. I do not seek to disagree with that submission. The effect of the escape of the pesticide was to degrade the environment, at least to the extent of the human-made structures of the street gutter and the associated drainage works.

6. Mr Maiden submits, on behalf of the defendant, that this is an appropriate case for the application of s 10 of the Crimes (Sentencing Procedure) Act 1999 (“the Crimes (Sentencing Procedure) Act”) . The defendant’s character and antecedents are impeccable. The prosecutor has not been heard to make any submission to the contrary. No previous convictions, whether criminal or otherwise, have been recorded against the defendant. He is sixty-nine years of age. He is said to be of modest means and he conducts a family business. The financial statements presented to the Court, in respect of that business, confirm that it is truly a small business operating within a family context.

7. The offence, as alleged in the particulars in the summons, is not trivial and, indeed, the offence per se is not trivial. However, the prosecutor has not proved the extent of the offence as alleged in the summons. Part of its case was that the chemical reached the waters of a creek and caused the death of fish and eels. The Court found that the actual harm in that sense, that is, to the animal species, was caused as a consequence of an irresponsible act on the part of an officer of the Coffs Harbour City Council. The defendant co-operated to a significant extent in containing the spread of the chemical and to its dilution before it could reach any sensitive waters. His action was both prompt and efficient.

8. The prosecutor relies on the toxic quality of the chemical to submit that it is not appropriate to apply s 10 of the Crime (Sentencing Procedure) Act in the circumstances of this case. This submission relates to the real potential for harm to the environment by the escape of the material. According to Mr Jordan, who appears for the prosecutor, the Court is required to take into account the potential for harm as a proper consideration before applying s 10. The judgment of the Chief Justice in the Court of Criminal Appeal in Thorneloe v Filipowski (2001) 52 NSWLR 60 at 73 supports this submission. However, notwithstanding the potential for harm accepted in that case, the Court of Criminal Appeal, nevertheless, applied s 10. It is worth repeating two paragraphs in the judgment of the Chief Justice. At par 178, he says as follows:-
It is, in my opinion, relevant to the exercise of the discretion under s 10 of the Sentencing Act , in the context of a strict liability offence, to consider what the applicant for the benefit of s 10, could have done to avert the event that has occurred. While questions of weight are always for the sentencing judge, it is unlikely that this consideration will be given determinative weight in the case of a serious offence or a repeat offender. Where, as here, there was a comparatively minor pollution by a first offender, this consideration is entitled to weight.
9. Then, at par 186, he goes on as follows:-

No doubt some further guidance or training might have made a difference in each case but it is difficult to identify any effective step which the master could have taken that does not require virtual protection.

10. The theme is reiterated by Hulme J at par 205, in the same judgment of the Court of Criminal Appeal, where he says that:-
…such a matter is relevant to the exercise of the discretion under s 10 is amply demonstrated by the reasons of the Chief Justice. To them I would add only this. Of the five principal general considerations in sentencing - general deterrence, personal deterrence, retribution, rehabilitation and protection of the community: see Veen v Regina (No 2)(1988) 164 CLR 465 at 476, the last two are normally of little additional consequence where, as in this case, the penalty takes the form of a fine. Retribution may well have a part to play but save insofar as considerations of deterrence may cause actual or prospective offenders to cease activities which have associated with them risks of the commission of strict liability offences, there is little point in punishing someone for an event which he could have done nothing to avert.

11. I am satisfied, in this case, that the defendant acted reasonably. The defendant acted sensibly and with the appropriate degree of caution, as then understood from the knowledge, experience and practices previously adopted by himself and his employees.

12. The prosecutor suggests a stopper or bung could have been inserted in the outlet to the gutter in anticipation of the prospect of an escape. Although the defendant’s employee, carrying out the task of the application of the pesticide, did, in fact, check the outlet to the street on several occasions, there is no evidence to suggest that the escape was foreseeable in the circumstances. The nature of the enquiries made beforehand and the previous experience in similar circumstances confirms this.

13. Mr Jordan asks me to take into account the matters referred to in s 241 of the PEO Act as any other matter that the Court thinks proper to consider under s 10(3)(d) of the Crimes (Sentencing Procedure) Act. Although some of the matters raised in s 241 are relevant to be taken into account in determining whether the offence is trivial or whether extenuating circumstances exist, as a matter of construction, s 241 relates only to circumstances where the Court is imposing a penalty. Section 10, of course, specifically avoids that consequence.

14. The Court, nevertheless, recognises that some of the matters raised by s 241 of the PEO Act are coincidently matters that need to be taken into account in considering whether to apply s 10 of the Crimes (Sentencing Procedure) Act. I have, for the reasons and in the way that I have already touched upon, had regard to a number of those matters. In all of the circumstances, as raised by s 10(3) and on balance, the Court will proceed pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act. Without proceeding to conviction, the Court finds the defendant guilty of the offence and makes an order directing that the charge be dismissed.

15. That leaves the question of costs. I am informed that there has been some discussion about the question of costs and that, depending upon the Court’s ultimate determination in that respect, an agreement can be reached as to quantum.

16. Mr Maiden has put a submission that if the summons had been drawn to particularise the offence in the way in which it was ultimately confined by the determination of the Court, then the Court could reasonably expect that the defendant may have pleaded guilty and that the proceedings could have been disposed of in a short and peremptory way by proceeding on an agreed statement of facts. In those circumstances, Mr Maiden says that because the defendant has been successful, in relation to such a significant part of the case alleged against him, there should be some concession or discount made in his favour.

17. Mr Maiden’s submission may well have had some substance if the case had been conducted solely on the basis that the disputed fact was whether or not the chemical reached the creek waters, or at least that part of the waters where the fish and eels were exposed. However, that is not the way in which the defendant conducted his case. True it may be that the defendant did not deny that the chemical, applied by the defendant’s employee to the floor of the garage, escaped to the street gutter and beyond. What the defendant did, however, was to raise the defences as they are outlined in paragraphs 35, 36, 37 and 38 at pages 10 and 11 of the judgment delivered on 5 February 2002. The defendant was unsuccessful in relation to those defences.

18. It is not, in my opinion, open for the Court to find that there was a reasonable expectation that the case would have been shortened, to the extent suggested by Mr Maiden, if the particularisation had been confined, for example, to the street gutter or even the culvert and the drain beyond. Accordingly, I am not prepared to make any concession to the defendant in regard to costs. The offence has been proved and the defendant has been found guilty of the offence.

19. The decision of the Court not to proceed to conviction is not a reflection, in any respect, upon the case brought by the prosecutor who, at all times, recognised that the causal link could not be explained, except to the extent that what went into the holes in the floor was what came out of the pipe and entered the street drainage system. The offence is one of strict liability and the Court has found accordingly. The Court proposes, therefore, to make an order, as it has been invited to do in the light of that finding, that the defendant pay the prosecutor’s costs in the sum of $40,000.

20. The formal orders of the Court are:


(1) The offence is proved.

(2) The defendant is found guilty of the offence.
(3) Without proceeding to conviction, the Court directs that the relevant charge be dismissed pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act.
(4) The defendant is ordered to pay the prosecutor’s costs in the sum of $40,000.
(5) The exhibits may be returned.


21. HIS HONOUR: Does there need to be any formal order regarding payment of the costs or has that been arranged?

22. MAIDEN: No, it hasn’t been arranged yet, your Honour, but I suspect that would be a matter, ordinarily, of discussion.

23. HIS HONOUR: Nothing formal required in that respect.