Environment Protection Authority v Coggins

[2003] NSWLEC 111

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Reported Decision: (2003) 126 LGERA 310

Land and Environment Court

of New South Wales

CITATION:

Environment Protection Authority v Coggins [2003] NSWLEC 111

PARTIES:

PROSECUTOR
Environment Protection Authority

DEFENDANT
Craig Coggins

FILE NUMBER(S):

50129 of 2001; 50130 of 2001

CORAM:

Cowdroy J

KEY ISSUES:

Prosecution :- toxic chemicals discharged into waterway - plea of guilty - assessment of penalty - sentencing principles - general deterrence - character evidence - co-operation with law authorities

LEGISLATION CITED:

Crimes (Sentencing Procedure) Act 1999, s 3A, s 8(2), s 10, s 21A, s 22, s 22A, s 23, s 86, Sch 2 cl 45
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002
Crimes (Sentencing Procedure) Regulation 2000, cl 23
Land and Environment Court Act 1979, s 52
Protection of the Environment Operations Act 1997, s 116, s 119, s 120, s 241, s 246, s 247

CASES CITED:

Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357;
Cameron v R (2002) 76 ALJR 382;
Environment Protection Authority v Ecolab Pty Limited (2002) 123 LGERA 269;
Environment Protection Authority v Rail Infrastructure Corporation (2002) 119 LGERA 409;
Environment Protection Authority v Warringah Golf Club [2003] NSWLEC 140;
Maxwell v The Queen (1995) 185 CLR 501;
R v Storey [1998] 1 VR 359;
R v Thomson; R v Houlton (2000) 49 NSWLR 383;
Regina v Jenkins [1999] NSWCCA 110;
Regina v O'Neill [1979] 2 NSWLR 582;
Ryan v The Queen (2001) 206 CLR 267;
State Pollution Control Commission v White Wings Limited (Bignold J, Land and Environment Court, 1 November 1991, unreported);
T v R (1990) A Crim R 29;
The Queen v Olbrich (1999) 199 CLR 270

DATES OF HEARING:

28/04/2003; 29/04/2003; 30/04/2003; 01/05/2003

DATE OF JUDGMENT:

06/20/2003

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr S. Rushton SC

SOLICITORS
Environmental Protection Authority

DEFENDANT
Mr T. Hale SC

SOLICITORS
Bartier Perry Solicitors

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

50129 of 2001

50130 of 2001

Cowdroy J

20 June 2003

Environment Protection Authority

Prosecutor
v

Craig Rue Coggins

Defendant

Judgment

The charges

1 By summons filed 30 December 2001 the Environmental Protection Authority (“the EPA”) charges Craig Rue Coggins (“the defendant”) with an offence committed against s 116(1) of the Protection of the Environment Operations Act 1997 (“the POEO Act”). Such charge alleges that on or about 12 February 2001 the defendant negligently caused a substance to escape in a manner that harmed or was likely to harm the environment. Such substance is Gusathion Turf Insecticide Liquid (“Gusathion”).

2 The defendant has pleaded guilty to the charge. Accordingly the Court is only required to determine the appropriate penalty.

3 The defendant was also charged by the EPA with an offence against s 120(1) of the POEO Act (proceedings 50129 of 2001). Such charge was withdrawn by the EPA on the first day of the hearing as a consequence of the plea of guilty to the more serious offence under s 116 of the POEO Act.

The offence

4 Section 116(1) of the POEO Act provides:-

s 116 Leaks, spillages and other escapes

(1) If a person wilfully or negligently causes any substance to leak, spill or otherwise escape (whether or not from a container) in a manner that harms or is likely to harm the environment:

(a) the person, and

(b) if the person is not the owner of the substance, the owner, are each guilty of an offence.

“Harm” is defined in the dictionary to the POEO Act as follows:-

harm to the environment includes any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution.

5 At all relevant times the defendant was engaged as the course superintendent for Warringah Golf Club Limited (“the Club”). On Friday 9 February 2001 a grounds person noticed that an insect pest which was suspected to be the Argentine Stem Weevil was causing damage to the fifth green on the golf course. It was essential to spray the green with an insecticide to prevent the spread of the insect to other areas. For this purpose the Club kept various pesticides, including Gusathion, in its workshop area which is located on the golf course in close proximity to Brookvale Creek (“the creek”).

6 For the purposes of spraying such insects the Club had a spray unit which comprised a tractor equipped with tanks and spray hoses. On the afternoon of 9 February 2001 the defendant instructed another employee to fill the tanks on the spray unit with approximately 20 litres of water to enable Gusathion to be added. The defendant obtained Gusathion from the chemical store within the workshop and poured it to the tanks on the spray unit. Another employee, Ms Toni Nolan, attempted to use the spray unit on the golf course but it failed to spray. Accordingly it was returned to the workshop area.

7 On Monday 12 February 2001 another Club employee Mr Ben Hansen was instructed by the defendant to spray the greens with the spray unit. The Gusathion and water mixture (“the chemical solution”) was still in the tanks of the spray unit since Friday 9 February 2001. Mr Hansen commenced to use the spray unit and despite some mechanical problems with the spray unit was able to spray seven of the greens. However the mechanical problem which manifested itself on the previous Friday afternoon recurred. After an adjustment was performed, Mr Hansen was able to spray another three greens but at approximately 9am the spray unit failed completely. Mr Hansen drove it to the workshop and parked it on a concrete slab in the workshop area to enable repairs to be effected. Mr Hansen and another employee John Edwards, attempted to rectify the defect and the defendant joined them. After unsuccessful calls to the manufacturer concerning the fault, the defendant decided that it was necessary to disconnect one of the hose lines and to drain the tanks to determine the location of the blockage. Accordingly the defendant instructed Mr Hansen to remove the hose line. Mr Hansen did so causing the chemical solution to flow across the concrete slab.

8 To remove the chemical solution from the concrete slab the defendant hosed the liquid from the slab. The chemical solution then moved along a depression in the ground adjacent to the concrete slab until it met a grated stormwater drain which led directly into the creek. The creek is connected to Manly Lagoon (“the Lagoon”). The chemical solution entered the drain and the creek and ultimately migrated into the Lagoon resulting in the destruction of marine life and birds.

9 Gusathion is no longer registered with the National Registration Authority for Agriculture and Veterinary Chemicals but it was still legal to use Gusathion at the time of the offence. The active ingredient of Gusathion is azinphos-ethyl. Azinphos-ethyl is a phosphorodithioate orgamophosphorus pesticide, which is toxic because it inhibits the enzyme acetylcholine esterase. This results in muscular weakness and paralysis. When handling Gusathion personal protective equipment should be worn.

10 Dr Crank, consulting chemist and toxicologist, deposed in his affidavit sworn 9 April 2003:-

An escape of azinphos-ethyl in water would result in a progressive transfer of pesticide from water to sediment. This would result in a steady reduction in its concentration in the water over a few days.

The concentration of azinphos-ethyl bound to organic matter in soil or sediment would be 240 times its concentration in water. It is known to have a very high toxicity to fresh water aquatic organisms, particularly invertebrates and fish. According to the evidence of Mr Ross Hyne, the Principal Research Ecotoxicologist at the Centre for Ecotoxicology, 7 grams (or 1 teaspoon) of azinphos-ethyl in an olympic size swimming pool would destroy aquatic life within a matter of hours. Approximately two 5 litre tins of Gusathion containing 400g per litre of azinphos-ethyl was used by the defendant for the spraying.

Elements of offence satisfied

11 The defendant’s plea of guilty signifies that the essential elements of the offence under s 116 of the POEO Act are satisfied. Moffit ACJ in Regina v O’Neill [1979] 2 NSWLR 582 relevantly stated at p 588:-

I think three elemental matters can be stated. First a plea of guilty, in itself, carries with it an admission of the essential legal ingredients of the offence admitted by the plea, and no more. Second, beyond that, any facts relied upon by the Crown and, in particular, any that aggravate the offence must be established by the Crown by some acceptable procedure. Third, any dispute as to matters beyond the essential ingredients of the offence admitted by the plea must be resolved by ordinary legal principles, including resolving relevant doubt in favour of the accused.

The High Court of Australia in Maxwell v The Queen (1995) 185 CLR 501 confirmed at p 510 that a guilty plea constitutes “an admission of all the essential elements of the offence.”

12 The maximum penalty for an individual for an offence against s 116(1) of the POEO Act is $250,000 or 7 years imprisonment or both: see s 119 of the POEO Act.

Sentencing considerations required by s 241(1) of the POEO Act

(a) The extent of the harm caused

13 The discharge of the chemical solution resulted in the death of more than 10,000 fish including bream, snapper, mullet, Australian Bass, herring, trevally, and eels. Not less than 4.16 tonnes of dead fish and eels were collected by Manly Council and Warringah Council and were disposed of at the Belrose Waste Management Centre. It is estimated that at least 12 species of fish within the Lagoon perished. In addition, dead and dying ducks, cormorants, and herons were observed by local residents.

14 The Ecology Lab Pty Ltd was retained by Manly and Warringah Councils as a consultant to investigate the effects of the discharge and the possible causes on the aquatic ecology of the Lagoon. Their report notes that the same consultant had previously sampled the waters of the Lagoon in December 1992 and in January 1993.

15 Azinphos-ethyl was found in the waters of the creek and of the Lagoon and in fish samples and in several ducks that died in the days and weeks following the fish kill. Tissue concentrations of azinphos-ethyl in the dead fish collected on 13 February 2001 were 10 to 500 times the concentrations that would cause their deaths. Six ducks that were examined demonstrated symptoms of poisoning by an organophosphorus pesticide such as azinphos-ethyl. Mr Hyne deposed as follows:-

The persistence of azinphos-ethyl associated with the sediment in the creek sampled in June 2001 indicates that the environmental impact would likely have remained for several weeks after the initial event. The high concentrations of azinphos-ethyl in the sediment would be an ongoing source of contamination to the overlying water in the creek and Lagoon, and would likely impact on the invertebrates, fish and ducks in the creek and Lagoon. However, the local biotic community would recover over time.

16 The report of The Ecology Lab Pty Ltd dated June 2002 establishes that the numbers and types of fish collected one month after the discharge were similar to those collected in 1993. The report states:-

This suggested that either the fish kill did not result in mortality of most of the fish within the lagoon, or that there was rapid replenishment of fish populations in the period between the fish kill and the first survey in 2001. One exception to this was the sea mullet which declined in abundance one month after the fish kill, compared to 1993 at each location. Following this decline, each location showed varying rates of increase.

Accordingly there is no evidence that there has been any permanent loss of fish or other marine or bird life resulting from the discharge.

17 Furthermore it is difficult to ascertain the extent of the harm or actual harm to the environment because the water quality in the Lagoon was poor before the discharge. Dr Crank reported:-

(4) These studies prove that the pesticide escape of 12 February 2001 did not have a permanent or long-term adverse effect on the water quality or fish population of the lagoon.
(5) There is abundant evidence that certain physical and chemical factors, called stressors or stress factors, adversely affect the health of fish and make them more vulnerable to external toxic shock agents, such as pesticides.
(6) Having regard to the poor water quality of the lagoon and its acknowledged state of pollution, it is reasonable to assume that the fish in the lagoon would be more susceptible than normal to an escape of pesticide, such as occurred on 12 February 2001.
(7) It follows that the effect of the pesticide escape was therefore more severe, than it would have been had the lagoon not been affected by other pollutants, and probably more fish were killed as a result of this.
In my opinion, it is not reasonable to attribute the entire biological effects of the fish kill to the escape of the pesticide on 12 February 2001. Certainly it was the even which precipitated the fish kill, but other factors, such as the stressed condition of Manly Lagoon contributed to a significant degree to the severity of the incident.

18 The degraded quality of the lagoon does not mitigate the defendant’s conduct. Bignold J in State Pollution Control Commission v White Wings Limited (Bignold J, Land and Environment Court, 1 November 1991, unreported) stated at p 4:-

Counsel for the prosecution is right to point out that a Defendant discharging effluent into degraded waters is not to be given any advantage by way of mitigation simply because the receiving waters are in a degraded state.

His Honour however concluded that the “nature of the receiving waters” was a factor to consider when ascertaining the extent of the harm to the environment caused by the pollutant. Such approach was later confirmed in Environment Protection Authority v Rail Infrastructure Corporation (2002) 119 LGERA 409 at p 420 and Environment Protection Authority v Ecolab Pty Limited (2002) 123 LGERA 269 at p 273. Accordingly the Court can take note that the pre-existing condition of the waters exacerbated the harm or likely harm to the environment.

(b) Practical measures to prevent or control, abate or mitigate such harm

19 Over a prolonged period the defendant and another Club employee, Mr Edwards, tried unsuccessfully to have the Club install bunding around the concrete slab in the workshop area. Bunding would have prevented any substance such as chemicals or other pollutants from draining into stormwater grates located near the complex. Had bunding been in existence it is likely that the discharge into the creek would have been prevented.

20 The installation of the bunding is a practical measure that the Club, rather than the defendant, may have taken “to prevent, control, abate or mitigate” the harm to the creek and Lagoon. The Court is not concerned in these proceedings with the Club’s actions or omissions. However such evidence establishes that the defendant was well aware that great care was required when handling chemicals in the workshop area because adequate environmental precautions were not in place.

21 There is no evidence to prove that the defendant undertook any practical measures to prevent the environmental harm. The defendant acknowledged one possible practical measure which he could have adopted when he initially responded to the enquiries of an investigating council officer, Mr Ingham. The defendant informed Mr Ingham that he disconnected and cleaned the spray unit on the golf course. In fact such account was false, but it demonstrates that harm could have been avoided if the defendant had inspected the spray unit on the golf course rather than in close proximity to the drain. Additionally the defendant could have placed a receptacle or container beneath the spray unit into which the chemical solution could flow before the hoses were disconnected.

(c) Foreseeability of harm caused or likely to be caused to the environment

22 The Court must consider the extent to which the defendant could reasonably have foreseen the harm which was caused or likely to be caused by the commission of the offence.

23 The machinery workshop area was located between 10 and 15 metres from the bank of the creek. Two drains extended from a point 2.25 metres to the east of the edge of the concrete slab where the spray unit was undergoing repair. Sandy soil lay between the grated drains and the edge of the concrete slab. The defendant knew that the drains led to the creek from his involvement with the Brookvale Creek Rehabilitation Works project. The defendant was a member of the project’s management committee formed during 2000 to oversee the objectives of this project. One object was directed to the improvement of the water quality in the creek and wildlife habitat and the reduction of creek bank erosion. The defendant contributed to the committee’s discussions relating to the construction of new stormwater pits to connect two newly discovered stormwater pipes located in close vicinity to the workshop area. Accordingly the defendant, by his participation, demonstrated that he must have had an awareness of environmental issues relating to the creek.

24 The defendant has testified that when hosing the former concrete slab he directed the water in a northerly direction, namely at right angles to the location of the grated drains. The defendant disputes the allegation by the prosecutor that there was a drainage line at the northern end of the concrete slab leading to the northern most stormwater grate. However it is apparent that the water from the hosing operations mixed with Gusathion was able to travel from the concrete slab towards the grated drain by means of a depression in the surface of the ground.

25 The defendant had worked with Gusathion for many years and the container from which the chemical was obtained was labelled as “Gusathion”. The label was faded but was nevertheless legibile. Whilst the defendant believed he was using a chemical known as Chlorpyrifos, it is agreed that the toxic affects of both chemicals were essentially the same. Despite the contention about the type of chemical used, it is evident that the defendant knew that the chemical was toxic. The defendant hosed the chemical away from the workshop area to prevent his colleagues coming into contact with it.

26 The defendant was aware that the workshop area was not adequately bunded to prevent pollutants escaping into the stormwater drains, which the defendant knew led to the creek. This is apparent from the minutes of a meeting of the Brookvale Creek Rehabilitation Works Project held on Thursday 2 November 2000 which records the following:-

(Phone call JH/CC regarding sediment run off from the workshop down the stormwater pits. CC [the defendant] agreed to install and maintain silt fence around the stormwater pits.)


For these reasons the Court finds the risk of harm to the environment was reasonably foreseeable.

(d) The extent to which the defendant had control over the offence

27 The offence resulted from the action of the defendant directing that the hose be disconnected and from the defendant’s subsequent hosing of the concrete slab. The defendant accordingly had total control over the offence.

Plea of guilty

28 The Court must take the defendant’s guilty plea into account (s 22 of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”)) but it is not mandatory for the Court to exercise its discretion to provide a reduction in sentence for a guilty plea: see Cameron v R (2002) 76 ALJR 382 per Kirby J at p 393. The Court will consider the circumstances of each case and decide whether the plea reflects genuine remorse and has been beneficial from a utilitarian perspective: see R v Thomson; R v Houlton (2000) 49 NSWLR 383 at p 415.

29 In these proceedings the defendant did not plead guilty until at least six months had elapsed following disclosure of the prosecutor’s case. In Thomson at p 415 Spigelman CJ observed that the rationale for reducing the penalty from a utilitarian perspective is to save “…considerable expenditure… incurred by the prosecution…”, in addition to preparing witnesses and Court resources. By such a delay the prosecutor has incurred expense in the preparation of its case.

30 Despite his plea of guilty the defendant has made it apparent during his oral testimony that he does not regard himself solely to blame for the environmental damage resulting from the offence. The defendant refers particularly to the failure on the part of the Club to install the appropriate bunding around the workshop area. The defendant maintains that the Club rejected the requests to provide bunding. In response, the management of the Club declined such claiming that there were insufficient funds for such purpose.

31 The defendant also attributed blame to other persons as being responsible for the offence. The Court cannot make any findings against other parties. It can however take into account the physical state of the premises and can also consider whether there should be some recognition of the fact that the premises were deficient in their environmental protection measures. There is no evidence before the Court that any other person was responsible for the events of the 12 February 2001 when the spillage occurred. It is inferred therefore that the defendant’s guilty plea is a very “simple expression of remorse.”: see R v Thomson at p 412.

32 The range of discount on sentence has been held to be 10% to 25% for a guilty plea: see R v Thomson at p 418. The Court grants the defendant a discount at the lower end of this range.

Further sentencing considerations

33 Section 21A of the Sentencing Procedure Act lists further factors that the Court may consider when determining the appropriate penalty. Schedule 2 cl 45(3) of the Sentencing Procedure Act provides that the current s 21A of the Sentencing Procedure Act is only relevant to guilty pleas which have not been withdrawn and were accepted by the Court after the commencement of the section, which was on 1 February 2003. Such section repealed and replaced an earlier s 21A of the Sentencing Procedure Act as inserted by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002. The earlier s 21A of the Sentencing Procedure Act applies to guilty pleas that have not been withdrawn and accepted by the Court prior to 1 February 2003 but after 5 April 2002 when such section commenced.

34 The plea of guilty was first made on 13 September 2002 and was confirmed on the first day of the hearing. The prosecutor alleged that this was not a formal plea of guilty and cited the observations of Dawson and McHugh JJ in Maxwell at p 509 where their Honours stated:-

In these days when there is often, as in this case, only a note or memorandum of a plea of guilty and nothing which could be described as a formal entry of the plea on the record of the court (see Griffiths v The Queen (1977) 137 CLR 293 at 313-314), a plea of guilty is not, in the ordinary course of events, accepted until sentence is passed on the accused.

35 Schedule 2 cl 45 of the Sentencing Procedure Act determines the application of the prevailing s 21A of the Sentencing Procedure Act. It applies when the “court has accepted” the guilty plea. Accordingly s 21A inserted by the Crimes (Sentencing Procedure) Amendment (General Sentencing Principles) Act 2002 which prevailed at the date of the plea is the applicable statutory provision.

36 The Court has already considered some of the listed sentencing matters in s 21A(2) of the Sentencing Procedure Act which the Court is required to take into account. Such matters include “the nature and circumstances of the case” (s 21A(2)(a)), “any injury, loss or damage resulting from the offence” (s 21A(2)(d) and “the degree to which the offender has shown contrition for the offence” (s 21A(2)(e)). Additional factors the Court will now consider include “the need to deter the offender or other persons from committing an offence of the same or a similar character” (s 21A(2)(f)), “the need to ensure that the offender is adequately punished for the offence” (s 21A(2)(h)) and “the character, antecedents, cultural” (s 21A(2)(i)) of the defendant.

37 Such considerations are intended to reflect the purpose for which the Court will impose a sentence: see s 3A of the Sentencing Procedure Act. In this instance such purposes include deterrence (s3A(b)), to denounce the conduct of the defendant (s 3A(f)) and to recognise the harm to the environment and community (s 3A(g)).

Deterrence

38 The Court is conscious that penalties for pollution offences operate as a general deterrent. In Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 (CCA) Mahoney JA said a p 359:-

In the end, the object of the legislation is to prevent pollution and to do this, inter alia, by the deterrent effect of a substantial fine and by, in consequence, persuading the industries concerned to adopt preventative measures.

In this instance the penalty to be imposed by the Court will contain a component for deterrence. However such a consideration, although important, cannot “override, to an impermissible degree” the defendant’s favourable circumstances: see Regina v Jenkins [1999] NSWCCA 110.

Defendant’s character

39 The Court must determine whether the defendant is “of otherwise good character” and if established take it into account as a mitigating factor in the sentencing process: see Ryan v The Queen (2001) 206 CLR 267 per McHugh J at p 275 and 278. The inquiry into an offender’s good character will depend on all the circumstances.

40 The defendant is, and has been, a person of excellent character. The defendant had no criminal record. He had an unblemished employment record. The defendant was employed by the Club as course superintendent for 12 years until his employment ceased in July 2001. Prior to his employment with the Club the defendant was employed at the Gordon Golf Course, also as a course superintendent. In total his experience as a golf course superintendent amounts to approximately 20 years. The defendant’s duties at the Club included day to day supervision of the golf course, maintaining the course, ensuring that the course was in a playable condition, and supervising the Club’s greenkeepers, gardeners and maintenance staff. The defendant attended weekly meetings of the Brookvale Creek Rehabilitation Works between 16 March 2000 and 26 October 2000 as a representative of the Club.

41 In the assessment of penalty the Court is mindful of the consequences to the defendant which resulted from his conduct. The defendant’s employment was terminated. The defendant was ultimately reinstated on the ground of unfair dismissal. However the defendant subsequently resigned from his position, finding that his resumed employment was intolerable.

42 Many character references have been tendered in support of the defendant. In addition the Court observes that the defendant has served as a lifesaver with North Palm Beach Lifesaving Club and has been recognised for an act of public bravery. The defendant has actively participated in the Clean Up Australia campaigns for the benefit of the community. The defendant, but for this offence, has proven to be a responsible citizen, and a person who has been held in the highest regard by his peers. The defendant’s antecedents, good character and employment record mitigate heavily in his favour.

Consequences of the offence

43 The defendant has incurred expanses of $220,000 for legal advice relating to these proceedings, investigations of the fish kill and the unfair dismissal proceedings. The defendant has been obliged to sell his house in Sydney and to relocate his family to less expensive accommodation near Coffs Harbour with financial assistance provided by relatives. The defendant’s parents, who are retired have lent $100,000 to help fund the defendants legal costs. The defendant has been unable to find employment, and has earned a negligible income in the last financial year from a landscaping venture. His wife had to resign from her employment in Sydney, where she worked as a librarian. The defendant’s two children, aged 13 and 16, have been placed in new schools and in a new environment. The defendant’s daughter has a tumour on her optic nerve and requires continual medical assessment. The defendant has suffered severe emotional stress as a consequence of the offence, which has been exacerbated by his sentiment that he has been a scapegoat for the actions of other persons.

44 The Court acknowledges that the defendant and his family have had to alter their lives as a result of the offence. However, such changes do not constitute extreme and exceptional hardship: see T v R (1990) A Crim R 29 at p 40 wherein Gleeson CJ in said at p 40 that “the hardship must be so “extreme” – going so far beyond the sort of hardship which inevitably results to a family when the breadwinner is imprisoned” to warrant a sentencing judge to be more lenient. His Honour gave an example of such hardship being “where a wife is mentally ill and is at risk of suicide unless supported by the companionship of the offender.” The Court acknowledges the changes in the defendant’s personal life following the offence, but these circumstances do not constitute extreme or exceptional hardship. Accordingly, the impact of the consequences of the defendant’s conduct upon his family does not mitigate the defendant’s sentence.

The extent of the defendant’s co-operation

45 The prosecutor initially submitted that the defendant had not co-operated with the investigators. When the environmental damage resulting from the offence was discovered the defendant was interviewed and gave a false account of the circumstances leading to the offence. The Court is satisfied that the defendant, provided the false account because of his fear of the consequences of his actions, and thereby sought to exculpate himself. To his credit, he confessed within a matter of days that the account was not true.

46 A disputed issue remains concerning the prosecutor’s allegation that the defendant attempted to conceal two empty 5 litre cans which had allegedly contained the Gusathion. The evidence establishes that the two 5 litre cans were lying in a waste compactor bin on the morning of Tuesday 13 February 2001. Ian Gregory Birrell, a groundsman of the Club, observed the defendant climbing into the compactor bin and removing two cans, one of which Mr Birrell identified as having held Gusathion. Mr Birrell then observed the defendant place the cans in the boot of his car. Ms Nolan observed the defendant use a stick to reach into the compactor bin and pull out a can. Later she saw him carrying two 5 litre containers.

47 The prosecutor asks the Court to draw the inference that the defendant deliberately attempted to hide the Gusathion containers. The defendant, however, has testified that he climbed into the compactor bin to retrieve a rubbish bin which he had accidentally dropped.

48 The evidence of the two prosecutor’s witnesses is conflicting. Ms Nolan did not testify that the defendant climbed into the compactor bin and she noticed him retrieving only one can. Mr Birrell, in contrast, testified that the defendant climbed into the bin and retrieved two cans. Mr Birell did not observe the defendant using a stick to retrieve any cans.

49 The Court must be satisfied beyond reasonable doubt of any fact adverse to the defendant: R v Storey [1998] 1 VR 359 at p 369 confirmed in The Queen v Olbrich (1999) 199 CLR 270 at p 281. Against the factual discrepancies relating to the witnesses’ observations and the evidence of the defendant, the Court is not satisfied according to the requisite standard of proof that he attempted to conceal the empty containers of Gusathion as alleged.

50 These proceedings were re-listed at the request of the prosecutor after the hearing for the purpose of informing the Court that the defendant had assisted the prosecutor in related proceedings. Despite such co-operation the Court considers that the defendant did not make significant pre-trial disclosures or adequately assist the authorities in their investigations of the offence to warrant a discount of penalty which might be allowed pursuant to s 22A and s 23 of the Sentencing Procedure Act.

Penalty

51 For the defendant it is submitted that whilst the consequence of the offence was serious, the committal of the actual offence was not serious. The defendant requests that the Court should not proceed to conviction but rather exercise its discretion to find the offence proved but record no conviction (see s 10 of the Sentencing Procedure Act). The defendant also submits that the whole of the costs of the clean up operations which are claimed by the prosecutor includes wages which would have otherwise been payable in any event to employees of local authorities. The defendant also submits that the cost of the ecological assessment of the Lagoon was required for the continued management of the Lagoon and not associated with the “prevention, control or mitigation of harm” as provided for by s 246 and s 247 of the POEO Act.

52 In respect of the clean up operations the prosecutor acknowledged that the defendant should not bear the total amount of the clean up costs but submitted that the defendant should pay half of such costs. The Court finds that such clean up operations were largely conducted by Manly Council and Warringah Council employees. As such, they were undertaking duties in the course of their employment, and such fixed employment costs should not be borne by the defendant. However, the tipping fees and disbursements for the disposal of the dead fish incurred by Warringah Council should be paid by the defendant. Such amount is $1,236.00 as detailed in the affidavit of Craig Tucker sworn 21 March 2002. The Court also accepts the submission that the Ecology Lab Pty Ltd report was useful for a purpose beyond the initial investigations. Accordingly the defendant will not be ordered to pay the costs of such report.

Summary

53 Offences against s 116 of the POEO Act are considered by the Legislature to be within the tier of most serious environmental pollution offences. This is reflected by the prescribed maximum penalty for this offence. Such a substantial fine is also intended to deter others engaged in similar activities from committing environmental offences “and to procure that they will take the precautions necessary to ensure” such incidents do not occur: see Axer at p 359. In this instance it is particularly important to signify to employees, and their employers that environmental precautions must be taken when handling toxic chemicals.

54 The Court rejects the submission made by senior counsel for the defendant that a conviction should not be recorded. Severe environmental damage, especially the fish kill, resulted from the defendant’s criminally negligent actions. In the defendant’s favour, the Court notes that the extent of damage was not permanent and was exacerbated by the poor quality of waters in the Lagoon.

55 The defendant has pleaded guilty to the charge and thereby has expressed, to a limited extent, his contrition for the offence. The Court finds that the offence arose as a result of an act of negligence and was committed without intent or malice. The defendant has otherwise been of an exemplary character and has proven to be a responsible citizen.

56 The defendant regards himself as a victim of the Club’s failure to provide proper environmental safe guards. The Court notes that Talbot J has convicted the Club in respect of a charge brought pursuant to s 116(2) of the POEO Act (see: Environment Protection Authority v Warringah Golf Club [2003] NSWLEC 140). His Honour said at par 92:-

The Court finds beyond reasonable doubt that the club itself breached its duty to take reasonable steps to avoid or minimise harm to the environment. It negligently, and in the material respect, contributed to the conditions that gave rise to the commission of the offence of Mr Coggins.

57 The prosecutor acknowledges that the imposition of a financial penalty would be inappropriate in view of the defendant’s lack of means and his current unemployment. The prosecutor also submits that a term of imprisonment would be unsuitable.

58 Taking into account the mitigating factors referred to above, the Court considers that the defendant should serve, by way of penalty, community service. The Court is satisfied of the matters referred to in s 86 of the Sentencing Procedure Act and has had regard to the contents of the pre-sentence report of the Department of Corrective Service Probation and Parole Service which establishes that the defendant is suitable for community work. The number of hours specified in the community service order must not exceed 500 hours (see s 8(2) of the Sentencing Procedure Act) or the maximum period as provided for by cl 23 of the Crimes (Sentencing Procedure) Regulation 2000 (“the Regulations”). Clause 23 of the Regulations prescribes the maximum number of hours that may be imposed according to the maximum period of imprisonment for the offence. Where the maximum term of imprisonment prescribed for the offence is more than six months but does not exceed a year the duration of a community service order is limited to 200 hours: see cl 23(1)(b) of the Regulations. In respect of an offence which prescribes, as the maximum penalty, a term of imprisonment of more than one year the maximum community service order is 500 hours: see cl 23(1)(c) of the Regulations. The Court has considered these constraints, and has tken account of the mitigating factors referred to in this judgment which require the Court to discount the penalty. Taking such considerations into account, the Court imposes upon the defendant a community service order for 250 hours.

59 The defendant is also to pay the prosecutor’s costs.

Orders

60 The Court orders:-

1. The defendant is convicted of the offence as charged;

2. The defendant is sentenced to 250 hours of community service work. The defendant is to report to the New South Wales Probation and Parole Service at Coffs Harbour within one month of the date of this judgment to enable administration to be commenced;

3. The defendant is to pay $1,236.00 for the tipping fees and disbursements for the disposal of the dead fish to Warringah Council;

4. The defendant is to pay the prosecutor’s costs pursuant to s 52(2) of the Land and Environment Court Act 1979;

5. The exhibits be returned.