Environment Protection Authority v Collis

[2003] NSWLEC 190

>

Land and Environment Court

of New South Wales

CITATION:	Environment Protection Authority v Collis [2003] NSWLEC 190
PARTIES:	PROSECUTOR Environment Protection Authority DEFENDANT David Richard Collis
FILE NUMBER(S):	50004 of 2003
CORAM:	Pain J
KEY ISSUES:	Prosecution :- water pollution - strict liability offence - plea of guilty - culpability of defendant - whether owner of business or employee - application of s 10 of the Crimes (Sentencing Procedure) Act 1999 refused - consideration of penalty - mitigating factors - means to pay
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 s 10 Fines Act 1996 s 6 Protection of the Environment Operations Act 1997 s 120, s 241
CASES CITED:	Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357; Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; Environment Protection Authority v Attard [2000] NSWCCA 242; Environment Protection Authority v Egan (Bannon J, NSWLEC, 5 August 1992, unreported); Environment Protection Authority v Excel Fuels Pty Limited [2002] NSWLEC 160; Environment Protection Authority v Harris (Talbot J, NSWLEC, 19 February 1993, unreported); Environment Protection Authority v Orange City Council (Stein J, NSWLEC, 23 June 1995, unreported); Hunter Water Board v State Rail Authority of New South Wales [No 2] (1992) 75 LGRA 22; Peter Carter v Verna Wall [2003] NSWLEC 94 ; R v Andrew [2002] NSWSC 489; R v Goh [2002] NSWCCA 234; R v Olbrich (1999) 199 CLR 270; R v Paris [2001] NSWCCA 83; R v Piccin (No 2) [2001] NSWCCA 323; R v Thomson; R v Houlton [2000] NSWCA 309; R v Sharma (2002) 54 NSWLR 300; Thorneloe v Filipowski (2001) 52 NSWLR 60
DATES OF HEARING:	02/06/2003
DATE OF JUDGMENT:	08/27/2003
LEGAL REPRESENTATIVES:	PROSECUTOR Ms J Moore (solicitor) SOLICITORS Environment Protection Authority DEFENDANT Mr M Baird (barrister) SOLICITORS Wayne J Boom

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

50004 of 2003

Pain J

27 August 2003
ENVIRONMENT PROTECTION AUTHORITY
Prosecutor
v
DAVID RICHARD COLLIS
Defendant

Judgment


Introduction
1. The Defendant is charged by summons filed 21 January 2003 with one offence of causing waters to be polluted contrary to s 120(2) of the Protection of the Environment Operations Act 1997 (the PEO Act) on 23 January 2002 in the Oberon Council area in the State of New South Wales. At the time of the offence s 120(2) of the PEO Act provided "A person must not cause any waters to be polluted" . I note that s 120 of the PEO Act was amended on 1 July 2002 by the Environmental Protection Legislation Amendment Act 2002 so that the offence of pollution of waters is now contained in s 120(1).

2. The offence is a strict liability offence. The Defendant pleaded guilty to the offence on 4 March 2003. The maximum penalty applicable is $125,000.

3. The pollutant was 180 litres of sodium hypochlorite which is liquid matter which is poisonous or harmful to aquatic life or fish.

4. The waters polluted were 50 metres of the unnamed watercourse leading to the Fish River near the scour valve known as "scour valve 1" and 600 metres of the Fish River from its confluence with the unnamed watercourse to 600 metres downstream thereof.

Facts
5. There was a Statement of Agreed Facts provided by the parties which sets out the circumstances concerning the offence on 23 January 2002. Paragraphs 5.1 - 5.17 are as follows:
5.1 In January 2002 MAINSCLEAN had a contract with Trazlbat Pty Ltd to disinfect (super-chlorinate) new water mains in the Oberon Shire area downstream of Oberon Dam. MAINSCLEAN was to chlorinate the water mains to 50ppm with a detention time of 24 hours or to 100ppm with a detention time of 3 hours.

5.2 On 23 January 2002 the feed water for the 450mm main to be disinfected (main 2) came from an existing parallel main (main 1) that was connected to main 2 by a 50mm hose …

5.3 This was the first time that the defendant and the second time Mr Innes [an employee of MAINSCLEAN] had dealt with a bypass fed water main.

5.4 The flow in main 2 was not monitored by a flow meter at the first scour point on main 2 ("scour valve 1"). Scour valve 1 was approximately 300 metres from the injection point and down a steep slope from that point. Scour valve 1 was about 3 metres from an unnamed watercourse that flowed for about 50 meters before flowing into the Fish River.

5.5 Around 8am on 23 January 2002 Mr Innes was at the injection point and the defendant was at scour valve 1. Mr Innes connected the dosing equipment including the dosing pump and at about 8.15am he started the dosing pump to inject sodium hypochlorite into main 2. He notified the defendant by two-way radio when he had turned on the dosing pump. Using the MAINSCLEAN dosing charts it was estimated that it would take 52 minutes for the water containing the face of chlorinated water to arrive at scour valve 1.

5.6 Sometime after the dosing pump was connected to the main and prior to the pump being switched on, and/or whilst the pump was dosing, 180 litres of a 200 litre drum of sodium hypochlorite syphoned into main 2. Main 2 was overdosed during this period to about double the required strength of chlorine.

5.7 Approximately 32,000 litres of chlorinated water passed through scour valve 1 and into the unnamed watercourse and then into the Fish River. The chlorinated water exited scour valve 1 from a blue pipe that protruded from the ground near a large manhole.

5.8 Around 8.45am Mr Innes rang the defendant by two-way radio and told him he had a problem and asked him to close the scour which was done.

5.9 Mr Innes then replaced the empty drum of sodium hypochlorite with a new drum of sodium hypochlorite which he commenced injecting into the main and he contacted the defendant by two-way radio to tell him pumping had restarted and to open scour valve 1 again. When informed of this the defendant tested the level of total chlorine at scour valve 1 and states it was then 100ppm so he immediately closed the scour.

5.10 Mr Innes states that within a few hours of the injecting of sodium hypochlorite into the main above scour valve 1, and around lunch that day, he walked down to the Fish River and saw a few dead fish in the river.

5.11 From 8.45am to 6.15pm the defendant and Mr Innes continued disinfecting other sections of main 2. [This included operations at scour valve 7/8]

5.12 At approximately 6.15pm the defendant saw dead fish in the Fish River. He and Mr Innes together inspected about a 200 metre stretch of the river downstream of scour valve 1 and the defendant saw approximately 10 dead fish in that part of the river.

5.13 The defendant supervised the disinfecting process on 23 January 2002.

5.14 At 7.26pm the defendant telephoned by mobile phone Oberon Council's Director Engineering Leigh Robins to advise them of the fish kill. At 7.46pm the defendant telephoned by mobile phone Oberon Council's Development and Planning Manager Kenneth Solman. Mr Solman spoke with the defendant. The defendant informed Mr Solman, "we have had a chlorinated water discharge into the Fish River … ". Mr Solman arranged to meet the defendant at the site and advised him to notify the Environment Protection Authority ("EPA").

5.15 The defendant phoned the EPA pollution line at 7.55pm to report an incident.

5.16 About 8.30pm Mr Solman inspected part of the Fish River downstream of scour valve 1 with the defendant and Mr Innes. Mr Solman saw four dead fish in the river. He ceased his investigation of the river as it became dark.

5.17 Mr Solman decided that the Fish River should be flushed with water from Oberon Dam and he and the defendant met with Mr Martin Duffy of the Fish River Water Supply Authority at about 9pm to discuss this. Following that conversation water was released that night from the dam to dilute and disperse the chlorine in the river.

6. As the Defendant's counsel is arguing that s 10 of the Crimes (Sentencing Procedures) Act 1999 ought to apply it is important to consider all of the objective circumstances of the matter including the investigation of the offence on 24 and 25 January 2002 by the Prosecutor and the Defendant. The Defendant provided two reports to the Prosecutor about the incident, the first on 24 January 2002 and the second on 25 January 2002.

7. The first report prepared by the Defendant on 24 January 2002 stated that the cause of the incident was that at scour valve 7/8 the Defendant may have misjudged the time for the chlorinated water to arrive by a maximum of 10 minutes. During that time chlorinated water of 100 ppm entered the water system. The first report stated that as there was a possibility of chlorinated water entering the river the Defendant tested within a metre downstream of scour valve 7/8 and found the chlorine level to be 100 ppm (this was later corrected by the Defendant to 10 ppm). This level of concentration is not harmful. In the second report prepared by the Defendant dated 25 January 2002 the Defendant stated:
I have looked at the hypochlorite usage rates and I think I know what happened. After looking at the dip records I saw that there was a full 180 litre drum of sodium hypochlorite that could not be accounted for. I asked Allan [Innes] about it, he informed me that the drum had syphoned into the pipeline prior to us commencing the chlorination process … This meant that the slug load was discharged into the river without any treatment or testing.

8. No mention is made of scour valve 7/8. The second report also stated:

The estimated time for the diluted sodium hypochlorite to arrive at scour 1 was 52 minutes.

Between 8.15 am and 8.45 am Allan Innes had a problem with syphoning of sodium hypochlorite directly into the water main using 180 litres in half an hour. The usage should have been 43 litres per half hour. Clearly the main was overdosed to 209 ppm for this half hour period.

David Collis did not start testing for diluted sodium hypochlorite until after the slug of highly chlorinated water came through the scour from the syphoning event and down the unknown stream and then into the Fish River.

Cause of the incident
9. The Statement of Agreed Facts states at par 8.1 that:
The EPA engaged Mr Phineas Stone, an engineer and principal consultant specialising in hydraulics to provide his expert opinion about the incident. According to Mr Stone the most probable cause of the incident was that the dosing pump was connected but not started, scour valve 1 was opened and the flow in the main adjusted to the desired level, and while this occurred a pressure was induced in the pipeline at the sodium hypochlorite injection point that was lower than atmospheric pressure. The cause of the low pressure was the large difference in heights between the injection point and scour valve 1 together with the fact that water was being supplied at the top by a 50 mm hose rather than the 500 mm main pipe. The reduced pressure meant sodium hypochlorite would have been flowing (syphoning) into the main pipe before it was expected and without that fact being appreciated by the operators.

Environmental harm
10. The matters in relation to environmental harm are agreed. Paragraphs 10.3 and 10.4 of the Statement of Agreed Facts are as follows:

The release of the chlorinated water from scour valve 1 on 23 January 2002 effectively "sterilised" at least 600 metres of the Fish River killing 60 trout. Additionally it is likely that other less visible aquatic life such as aquatic insects and plankton, were lethally affected.

This type of spill does not result in long term contamination of waterways. During the inspection of the site on 15 February 2002, by Mr Julli, several live trout were observed resident in the area of the 23 - 24 January 2002 fish kill, indicating that recruitment of fish from downstream sites had commenced. Similarly a range of aquatic invertebrates were also present in the affected section of the Fish River indicating recolonisation had commenced.


Other evidence
11. The Prosecutor relied on the affidavits of Mark Clyne, an environment protection officer employed by the Prosecutor, sworn 15 November 2002, Moreno Julli, an environment protection officer employed by the Prosecutor, sworn 13 March 2003, and Phineas Stone, an engineer and principal consultant specialising in hydraulics and coastal engineering, sworn 12 March 2003.

12. In addition to giving evidence in relation to the cause of the incident (see par 8.1 of the Agreed Statement of Facts set out at par 9 above), Mr Stone also gave evidence in relation to the procedures that should have been used during pipe disinfection and the adequacy of the procedures used by the Defendant/MAINSCLEAN.

13. Mr Stone stated at par 9 of his affidavit that:
In my opinion for sound environmental practice the following features are necessary when undertaking pipe disinfection:


(1) a flow meter at the downstream end of the pipe being dosed;
(2) a valve at the end of the dosed section (frequently referred to as the scour valve/point);
(3) a valve between the injecting equipment and the upstream end of the pipe being dosed;
(4) a flow meter between the above mentioned valve and the sodium hypochlorite dosing equipment; and
(5) a means of adjusting the flow of sodium hypochlorite so as to achieve the desired flow rate as measured by the above mentioned flow meter.

14. Mr Stone’s evidence was essentially that on the day of the incident (1), (4) and (5) had not been implemented, (3) had either not been implemented or was incorrectly operated. Further, when advised of a problem the correct procedure would include immediately establishing the nature and cause of the problem. A risk assessment should also be undertaken before a procedure if there are not normal operating conditions. (I note step (2) was in place, being the valve operated by the Defendant).

Should s 10 of the Crimes (Sentencing Procedure) Act 1999 be applied?
15. Before considering the matters in relation to penalty under s 241 of the PEO Act it is appropriate to deal with the Defendant's submission that s 10 of the Crimes (Sentencing Procedure) Act 1999 ought to be applied.

16. Section 10(1) of the Crimes (Sentencing Procedure) Act 1999 relevantly states:
Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders:
(a) an order directing that the relevant charge be dismissed,
(b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years,
…


17. Section 10(3) provides the factors to take into account when deciding whether to make an order under s 10(1):
(a) the person’s character, antecedents, age, health and mental condition,
(b) the trivial nature of the offence,
(c) the extenuating circumstances in which the offence was committed,
(d) any other matter that the Court thinks proper to consider.

Who owns MAINSCLEAN?
18. The statement of agreed facts states at [4.1] that:
The Defendant is the manager of MAINSCLEAN which conducts pipe cleaning and disinfecting. The defendant has been the manager for 14 years. David Collis and Associates Pty Ltd is the trustee for the Collis Family Trust trading as MAINSCLEAN. David Collis is a director and a shareholder of David Collis & Associates Pty Ltd.


19. I note that there was evidence of these statements provided in a letter from an accountant (exhibit C, tab 14) and also in a letter from MAINSCLEAN to the Prosecutor and other material provided to the Prosecutor at the time a notice for information and records was issued by the Prosecutor to the Defendant and to David Collis & Associates Pty Ltd.

20. When questioned by me as to why the Defendant had been prosecuted personally, the solicitor for the Prosecutor stated that it was because of the Defendant's personal involvement in the circumstances giving rise to the offence on the day in question and, further, that the business names search for MAINSCLEAN stated that MAINSCLEAN was owned by two individuals, one of whom was the Defendant. According to the Business Names Act 2002 a person must not carry on business under a business name unless it is registered in that person's name: see s 4. This is contrary to the Statement of Agreed Facts which states that the Collis Family Trust is trading as MAINSCLEAN. The exact relationship of the Defendant in regards to MAINSCLEAN, that is, whether he should be regarded as an employee only or as an owner or operator of the business, at the time of the offence, is important in considering whether s 10 of the Crimes (Sentencing Procedure) Act 1999 should apply.

Defendant's submissions on s 10
21. The Defendant firstly submitted that as s 10 is applicable to environmental offences the Court should not dismiss applications made under these provisions because it considers that no environmental crime is "trivial".

22. The Defendant's counsel submitted the circumstances of this offence were such a rare and exceptional circumstance that s 10 ought to be applied. In relation to s 10(3)(b), as to whether the offence is trivial in nature, the Defendant's counsel submitted that while the offence itself could not be described as trivial, given the amount of environmental harm caused, where the Defendant's culpability is trivial it is open to the court to consider applying s 10. R v Goh [2002] NSWCCA 234 and R v Andrew [2002] NSWSC 489 were relied on. In both cases the Crimes Act prescribed a maximum penalty of five years imprisonment and the judge at first instance applied s 10 so that no conviction was recorded. R v Goh was appealed to the Court of Criminal Appeal and the trial judge's decision was upheld. R v Piccin (No 2) [2001] NSWCCA 323 concerned a charge of malicious wounding and the Court of Criminal Appeal considered the issue of the trivial nature of the offence. Hulme J stated at [25] that he did not consider that it was a precondition of the exercise of power under s 10 that the offence involved be trivial. Further, in R v Paris [2001] NSWCCA 83 Simpson J considered that s 10(3) requires the Court to have regard to the four factors listed therein, but that it is not necessary for the application of s 10 that the offence be characterised as trivial, holding that the four factors in s 10(3) are disjunctive and non-exhaustive (at [42]). Ipp AJA agreed with the judgment of Simpson J subject to the following comment (at [48]):
In my view section 10(3) sets out what may be termed as criteria to be borne in mind in deciding whether or not to make an order referred to in subs 1. While none of these criteria is conclusive, all are to be taken into account.

Wood CJ at Common Law agreed with Simpson J subject to the qualification imposed by Ipp AJA.

23. Section 10 has been applied in the environmental offences context by the New South Wales Court of Criminal Appeal in Thorneloe v Filipowski (2001) 52 NSWLR 60. Two paragraphs from the judgment of Spigelman CJ were particularly relied on by the Defendant. At par 178 his Honour stated:
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.

24. At par 186 his Honour stated:

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 perfection.


25. It was contended that the Defendant should be regarded as an employee and manager of MAINSCLEAN, as set out in the Statement of Agreed Facts, rather than the owner of the business. The Defendant's counsel argued the reasoning in Thorneloe should apply to the Defendant who, as an employee of MAINSCLEAN, could have done nothing to avoid the pollution incident from scour valve 1.

26. The Defendant's counsel's submissions also quoted extensively from the decision of Bignold J in Environment Protection Authority v Excel Fuels Pty Limited [2002] NSWLEC 160, particularly [41] - [53]. The defendant in that case conducted a fuel distributorship business. In relation to s 10(3)(b), the trivial nature of the offence, Bignold J took into account that the offence was serious because of the introduction into a stormwater drain and a creek of 400 litres of diesel fuel that were not recovered in cleanup operations. He also considered the defendant's subjective culpability was serious because of the absence of proper procedures and protocols for the operation of the oily water separator, and the absence of training for any employee at the depot in the operation of the separator as part of the infrastructure of a fuel storage and distributor operation which was inherently dangerous by the nature of the goods handled. The Defendant's counsel submitted this situation was to be contrasted with the Defendant, whose employer MAINSCLEAN had an operations manual which set down procedures to be followed and provided training to its employees.

27. In the circumstances of this case, the Defendant is an employee of MAINSCLEAN and, while in charge of operations on the day of the offence, was located out of sight of the operator of the dosing pump, Mr Innes. Only Mr Innes could have been aware of the amount of sodium hypochlorite which entered the mains water and he did not tell the Defendant of that circumstance. This, combined with the unusual operating environment, meant that there was nothing the Defendant could have done to avert the offence on 23 January 2002 as it had occurred by 8.45am. The objective circumstances of the incident show that by 8.45 am the chlorinated water had already discharged into the Fish River and environmental harm had occurred. Mr Collis was not in a position to have prevented this from occurring even if he had been told of the syphoning event at that time. It is the evidence of Mr Collis that he only became aware about 3.30 pm on 24 January 2002 that a spill had occurred and he initially believed it was from scour valve 7/8.

28. Considering matters in s 10(3)(a), a number of written references concerning the Defendant's character were provided to the Court which attest that he is careful and thorough in his work. He has no previous convictions for environmental offences. There was also a statement from a clinical psychologist attesting to the negative impact the prosecution has had on the Defendant.

29. In relation to s 10(3)(c), it was submitted that because the circumstances in which the offence was committed are unique and outside the usual frame of reference for the Defendant, the offence was committed in extenuating circumstances.

30. It was submitted that in light of the character of the Defendant and in light of all the material put before the Court in mitigation, namely, the legal costs payable by the Defendant, the low income of the Defendant, changes implemented by MAINSCLEAN to ensure future spills will not occur, the Defendant has been operating for 14 years with no environmental record, the environment was recovering three weeks after the event, there was nothing the Defendant could have done to prevent the incident and the Defendant began immediate testing when he thought there was a problem arising from the scour valve 7/8, the Defendant ought not be punished for the events which occurred between 8.15 am and 8.45 am on 23 January 2002. Accordingly, s 10(1) should be applied.

Prosecutor's submissions on s 10
31. The Prosecutor argued that an order under s 10 is not generally appropriate in relation to a breach of environmental laws, relying on Hunter Water Board v State Rail Authority of New South Wales [No 2] (1992) 75 LGRA 22 and Environment Protection Authority v Attard [2000] NSWCCA 242. The Prosecutor's submissions were based on the assumption that the Defendant was the owner of the business MAINSCLEAN (although that is not what is stated in the Statement of Agreed Facts) and also the person in charge of operations on the day of the offence (which is not disputed by the Defendant).

32. In relation to the factors referred to in s 10(3)(a) it is acknowledged that the Defendant has no prior convictions and has a good record.

33. In relation to s 10(3)(b) the Prosecutor submitted the offence is not trivial but is serious, with serious likely consequences. There was actual harm of 60 fish and a likelihood of harm to other organisms. It is not appropriate to make an order under s 10 when there is actual environmental harm. The harm was significant and resulted from a highly toxic chemical in concentrations in the river well in excess of the ANZECC guidelines. Badgery-Parker J in Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 367 was relied on where his Honour stated:
Those who handle dangerous chemicals must be regarded as under a heavy obligation to the rest of the community to do so with the utmost care. This Court should not be seen to send any message other than that.


34. The Prosecutor argued that the Defendant's culpability is not trivial. There were a number of inadequacies in the procedures followed, based on the undisputed evidence of Mr Stone (set out at par 13 and 14 above). It was not enough for the Defendant to argue that he was downstream of Mr Innes and could not have been aware of the difficulties with the syphoning. The Defendant has 14 years experience in this business, has indicated that he was responsible for the management on the day, he is the owner of the business according to the business names records search, and director/shareholder of the company which is trustee of the Collis Family Trust. His failure to investigate any problems at 8.45 am on 23 January 2003 had serious consequences because there was delay in mitigating measures being taken and consequently a highly toxic pollutant was released into the watercourse.

35. In relation to s 10(3)(c), the Prosecutor submitted there were no extenuating circumstances. The fact that the operating environment was unique to the Defendant required that he take extra precautions. He was an experienced operator and should have known that greater precautions were necessary. The fact that the Defendant was unfamiliar with the situation is not an extenuating circumstance.

36. In relation to s 10(3)(d), any other relevant matters, the Prosecutor submitted that this case is not similar to that in Thorneloe . There were a number of procedures which could have been undertaken to ensure sound environmental practice was followed. It is not a situation such as Thorneloe where there was nothing the Defendant could have done to prevent the offence occurring nor was the discharge small as in Thorneloe .

Finding on s 10
Clause 10(3)(b)
37. The offence is clearly not trivial but is the Defendant's culpability trivial? The Defendant's counsel emphasised that the Defendant should be regarded as an employee not an owner of MAINSCLEAN. R v Olbrich (1999) 199 CLR 270 was referred to as authority for the proposition that matters which are to be taken into account in the Defendant's favour must be proved on the balance of probabilities. The Prosecutor is required to prove all matters adverse to the interests of the Defendant beyond reasonable doubt.

38. The evidence the Defendant sought to rely on, as contained in the Statement of Agreed Facts, is that the Defendant is an employee of MAINSCLEAN. This is not supported by the Registered Business Names search for MAINSCLEAN relied on by the Prosecutor and about which the Defendant's counsel made no submissions by way of explanation. The evidence on this issue is clearly in conflict. It is of course possible the Agreed Statement of Facts is correct but that the required notification that MAINSCLEAN is being operated as a business name by the Collis Family Trust has not been filed under the Business Names Act.

39. The relationship of the Defendant to MAINSCLEAN is an important issue to resolve for the purposes of this s 10 application. Given the particular circumstances early in the day on 23 January 2003 set out at par 5.5 - 5.9 of the Agreed Statement of Facts (see par 5), it is clear that the Defendant, using MAINSCLEAN's procedures, could not at that point have prevented the discharge of the chlorinated water from scour valve 1 between 8.15 am and 8.45 am given Mr Innes' failure to alert him to the syphoning event. If the Defendant is an "arms-length" employee having no involvement in the management of the business, arguably his culpability would be trivial in these circumstances. If the systems of work implemented by MAINSCLEAN are considered more generally however, there clearly was a lack of adequate equipment and procedures in place at the time of the offence. If the Defendant is the owner and/or operator of the business or responsible for managing the business rather than an "arms-length" employee, he is clearly responsible for that lack of equipment and procedures. In that situation I consider the Defendant's culpability would not be trivial.

40. The evidence shows that the Defendant is a director and shareholder of David Collis & Associates Pty Ltd (the only other director and shareholder being Denise Collis) (Affidavit of Mark Clyne sworn 15 November 2002, Annexure H). David Collis & Associates Pty Ltd is the trustee company of the Collis Family Trust which trades as MAINSCLEAN (Agreed Statement of Facts par 4.1). The Business Names Extract for MAINSCLEAN shows that MAINSCLEAN was first registered as a business name on 22 December 1988 with Denise Collis as the registered proprietor since that date. The Defendant has been a co-registered proprietor since at least 1991 (Affidavit of Mark Clyne sworn 15 November 2002, Annexure G).

41. The Defendant is the manager of MAINSCLEAN and was the supervisor of the process the subject of this offence and of Mr Innes (see Agreed Statement of Facts par 4.1, 4.7, 5.13). The Agreed Statement of Facts states at par 4.7:
From 6 August 2001 to 29 April 2002 Mr Allan Innes was employed by the Collis Family Trust t/a MAINSCLEAN and undertook pipe cleaning and disinfecting work for MAINSCLEAN. During that period the defendant was Mr Innes’ overall supervisor and responsible for his training. Prior to the incident the defendant had provided Mr Innes with on the job training and additional practical and theoretical training on the disinfection unit at the MAINSCLEAN depot on the 25 th October 2001.


42. In relation to his work for MAINSCLEAN, the Defendant is employed by David Collis & Associates Pty Ltd (Exhibit B at 13, 18). The Collis Family Trust pays the Defendant’s wages as an employee of MAINSCLEAN (Exhibit B, appendix 6, Exhibit 1, tab 7) and as a director of David Collis & Associates Pty Ltd (Exhibit B at 7).

43. The evidence relied on by the Prosecutor to prove that the Defendant is the owner of MAINSCLEAN, namely the Business Names Extract for MAINSCLEAN, does not prove that fact beyond reasonable doubt. The Defendant’s formal legal relationship with the business of MAINSCLEAN is that of an employee on the evidence relied on by the Defendant and I accept this has been proved on the balance of probabilities.

44. Is the Defendant the operator/manager of the business? The evidence (at par 40 - 42) suggests that the Defendant is not an “arms length” employee but rather is the manager and operator of the business. He is involved in the overall conduct of the business of MAINSCLEAN and has been for some time. Further, there is no evidence adduced by the Defendant that there was anyone else apart from himself who could have been in charge of the overall operation. I consider his role in relation to the operation of the business means that he can be considered to have responsibility for the failure of the systems used by MAINSCLEAN on the day of the offence.

45. The Court of Appeal decision of Thorneloe must be closely considered to see if the same reasoning should be applied here. In my view the circumstances of this case have some important differences to those in Thorneloe . This case involved actual and serious, albeit not long term, environmental harm, and there was release of a large volume of chlorinated water, namely 32,000 litres. One of the factors determining whether s 10 ought apply in Thorneloe was that the offence was minor, unlike in this case.

46. The Defendant in this case is a manager and operator of MAINSCLEAN. His involvement in the events leading up to the offence is different to the ship's captain in Thorneloe . The Defendant, as an experienced manager, is liable if he applies the usual MAINSCLEAN operating procedures in unusual circumstances where his experience should tell him caution must be exercised and fails to implement adequate procedures and use appropriate equipment. I note that based on the measures I have found could have been implemented in relation to s 241(1)(b) below, there were measures that could have been implemented to avert the offence.

47. I do not consider the Defendant's culpability is trivial.

Clause 10(3)(c) - (extenuating circumstances)
48. The fact the Defendant is experienced in the business of pipe cleaning and had not encountered this particular operating environment before is relied on by the Defendant to suggest there was an extenuating circumstance in this case. The Defendant's experience also suggests that he should have been more aware of the need to take different precautions in an unusual operating environment given the highly toxic nature of the chemicals being used. I accept the Prosecutor's submission and the evidence of Mr Stone at par 13 and 14 above, so that given the Defendant's experience he should have been aware that the usual procedures may not be sufficient and that greater caution was warranted. The fact that one of the means implemented since the incident includes the purchase of a $300 see-through limited capacity tank and that training procedures now include the need to advise of any irregularity in process, suggest that relatively simple measures were available to assist in ensuring such an incident could not occur. I do not consider extenuating circumstances exist.

Clause (10)(3)(a)
49. I note that Mr Collis' character references are excellent and attest to his careful work habits.

50. I consider that in these particular circumstances it is not appropriate to apply s 10. I do not consider the culpability of the Defendant can be considered to be trivial, nor that there were extenuating circumstances. Given the level of environmental harm caused the offence is a serious one. The good character of the Defendant is not sufficient to outweigh these factors. There were a number of other matters referred to by the Defendant's counsel (see par 30) which are not relevant here.

51. It is necessary that I now consider the matter of penalty.

Section 241(1)(a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence
52. The Defendant has agreed that the environmental harm caused is as stated in the Statement of Agreed Facts set out at par 10. Clearly there is harm caused and likely to be caused to the environment, but that harm is likely to be short term only.

Section 241(1)(b) the practical measures that may be taken to prevent, control, abate or mitigate that harm
Prosecutor's submissions
53. The Prosecutor argued that there were a number of steps which could have been taken by the Defendant to prevent the discharge and/or prevent and mitigate the harm caused by the offence. Given the unusual operating circumstances the Defendant should have undertaken a risk assessment to determine if additional procedures were warranted rather than apply usual procedures. There are six further steps which the Prosecutor identified in its submissions:
(1) Use of a flow meter to measure the amount of sodium hypochlorite injected into the main;
(2) Install and properly operate a valve between the sodium hypochlorite dosing pump and the main being dosed which could be closed when equipment was being set up to prevent any syphoning occurring;
(3) Use of a "see through" sodium hypochlorite tank or a tank with a limited maximum capacity;
(4) Take drum dips of the amount of sodium hypochlorite used whilst dosing. The usual practice at the time was for the operator to only take a drum dip reading at the start and end of the dosing (see exhibit MJC - 6 p34 to the affidavit of Mark John Clyne and Statement of Agreed Facts at par 4.8);
(5) Fully investigate the incident at 8.45 am when Mr Innes reported there was a problem; and
(6) Report the incident earlier than 7.26 pm.

54. Paragraph 9.1 of the Agreed Statement of Facts essentially states the Defendant has now done (1) and (3) and instructed operators to immediately report anything outside of normal procedures.

Defendant's submissions
55. The Defendant also highlighted the procedures he has now implemented as set out at par 9.1 of the Statement of Agreed Facts. The Defendant's counsel argued the dosage pump operated with a similar effect to the use of a flow meter and still would have required Mr Innes to notify the Defendant of the problem, the difficulty was rather with the changed pressure in the pipes which caused the syphoning to occur. Furthermore, this was the first time the Defendant had come across this arrangement of pipes. The Defendant's counsel further argued that in the circumstances there was nothing that the Defendant could have done to prevent or mitigate the harm.

56. The immediate water testing conducted after the incident at scour valve 7/8 by the Defendant at about 3.00 pm on 23 January 2002 showed that the chlorine level was not sufficient to have caused environmental harm. When dead fish were found near scour valve 1 and reported to the Defendant at around 6.30 pm on 23 January 2002 further testing was conducted by the Defendant. Once again, there was no evidence of chlorine in the Fish River at that time. Nevertheless the Defendant and Mr Solmon, Council officer, arranged for the release of water to flush the river. Testing on 24 January 2002 also showed no evidence of chlorine in the Fish River (see report no 2).

57. Because of the circumstances of the pollution event at scour valve 1 the chlorinated water passed through the mainline prior to 8.45 am before the Defendant had been requested to shut off the scour valve by Mr Innes and before the time calculated for testing to start. Once that chlorinated water was in the Fish River the only action that could have been taken was to increase the flow to dilute the chlorine as much as possible. The Defendant's evidence is that he was not aware until the next day there had been any discharge from scour valve 1. There was, accordingly, nothing he could have done to prevent or mitigate the harm.

Finding
58. I have already set out my findings in relation to the Defendant's relationship to MAINSCLEAN in relation to my finding on s 10 at par 44. Clearly there were practical measures that could have been taken by the Defendant, as manager and operator of the business, to prevent, control abate or mitigate the harm as identified by the Prosecutor at par 53 above. I do not however, accept the Prosecutor's submissions that the incident should have been reported earlier.

Section 241(1)(c) - the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence
Prosecutor's submissions

59. The Prosecutor submitted the likely harm was clearly foreseeable. The Defendant was using a highly toxic chemical in close proximity to a waterway. Further, until the repeal of the Clean Waters Act 1970, the Defendant's company, David Collis & Associates Pty Ltd, held a pollution control licence under that Act. That licence contained a discharge limit for chlorine of 1 mg/L when cleaning mains and a discharge limit for chlorine of 3 mg/L when disinfecting mains. The Defendant had operated under that licence for approximately ten years and should have been aware of the harm associated with a discharge of this nature.

Defendant's submissions
60. The Defendant submitted that it was not reasonably foreseeable that a syphoning event would have occurred so that 180 litres of sodium hypochlorite would flow through a water main and be discharged into the environment without it being noticed by the operator of the dosing pump. This, it was argued, required the Defendant to operate at a level of "virtual perfection" as identified by Spigelman CJ in Thorneloe at 186. It is unreasonable for the Court to impose an unwarranted standard of behaviour because of this particular situation. The matters identified by Mr Stone as to what should have been done (see par 13, 14) are matters which are beyond the procedures set down in the MAINSCLEAN manual. Further, Mr Innes' actions were not foreseeable and the Defendant, while responsible for procedures on the day, could not completely control Mr Innes' actions.

61. The Defendant argued it was reasonable to rely on the usual MAINSCLEAN procedures and for the Defendant to assume that Mr Innes would notify him of any problems. It was not reasonably foreseeable that super chlorinated water would reach the discharge point within 30 minutes rather than the expected 52 minutes. The Defendant could only have prevented the chlorinated water from escaping by turning off scour valve 1 before he had received notification from Mr Innes that there had been a problem. The lower pressure in the water supply mains led to a higher than calculated flow rate.

Finding
62. I accept the Prosecutor's submissions that the harm caused or likely to be caused was foreseeable by this Defendant. The harm caused to the environment by inadequate procedures and equipment being in place when using a highly toxic chemical in close proximity to waterways is clearly foreseeable.

Section 241(1)(d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence
Prosecutor's submissions

63. The Defendant was in charge of operations on the day of the incident, which is admitted, and had control over the causes that gave rise to the offence. He told Mr Innes, the operator injecting the sodium hypochlorite into the main, when to start and stop the pump and gave him any other instructions . Further, the Defendant was at the downstream end of the main and failed to close scour valve 1 allowing the escape of the 32,000 litres of chlorinated water.

Defendant's submissions
64. It was the employee Mr Innes who was at the dosing pump where the sodium hypochlorite was injected into the main. The events contained in the Statement of Agreed Facts show that the process at scour valve 1 started at 8.15 am. At 8.45 am the Defendant was informed there was a problem, but not the extent. By the time the Defendant was notified there was any problem at 3.30 pm on 24 January 2002 the chlorinated water had passed through the mains and discharged into the Fish River, that is, by 8.45 am the damage had been done.

65. Essentially it was argued that as the MAINSCLEAN manuals and procedures including dosing charts were followed, which charts showed the face of the chlorinated water should have taken 52 minutes to reach scour valve 1, all relevant procedures were followed by the Defendant. Mr Innes was the only person who could have known of the 180 litre discharge of sodium hypochlorite. The Defendant's counsel argued that essentially the Defendant did not have control over the causes which gave rise to the offence in these circumstances.

66. It was acknowledged that MAINSCLEAN has altered its procedures so that now the dosing metre is connected to a 20 litre maximum capacity see through tank only.

Finding
67. I accept that the Defendant did have control over the causes giving rise to the offence. As manager and operator of the business, and supervisor on the day, he is clearly responsible for the lack of procedures in place which led to the offence being committed.

Other sentencing matters
68. Regard must be had to the culpability of the defendant and the individual circumstance which led to the commission of the offence.

69. The sentence must be proportional to the gravity of the crime. The Court is also to have regard to the maximum penalty applicable, as this is an expression of the seriousness Parliament attributes to the offence: see Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698.

Deterrence
70. The Prosecutor argued that the environment protection legislation includes the need for general deterrence in sentencing: see Axer per Badgery-Parker at 367. The Prosecutor submitted a substantial sentence is required in these circumstances by way of general deterrence to ensure that other operators in the industry realise that adequate steps must be taken to ensure water is not polluted when using highly toxic chemicals such as sodium hypochlorite in close proximity to waterways.

71. I accept that the Court must have regard to general deterrence when considering the penalty to be imposed, but do not accept that this element alone would be sufficient to warrant a substantial sentence being imposed in the circumstances of this case.

72. I note that the Defendant has no prior convictions. However, the Prosecutor argued there were a number of failings in the procedures adopted by the Defendant on the day which make it suitable to provide specific deterrence to the Defendant in this case. The Prosecutor relied on Axer , at 359 - 360 (Mahoney JA) in support of this proposition. I do not think there is any need for specific deterrence in this case given the lack of prior convictions over a 14 year period in that pipe cleaning business. I do not consider this Defendant is likely to re-offend.

Aggravated circumstances?
73. The Prosecutor also argued there were aggravated circumstances of this offence because of:
1. the size and toxicity of the pollutant
32,000 litres of chlorinated water polluted the unnamed watercourse near scour valve 1 and the Fish River. Chlorine is highly toxic to aquatic life. The release from scour valve 1 was approximately 230,000 times higher than the Australian and New Zealand Guidelines for Fresh and Marine Water Quality 2000. There is a heavy obligation on those handling dangerous chemicals to do so with the utmost care: Axer at 367 (Badgery-Parker J).

2. the inadequacy of the procedures used on the day of the offence
As the Defendant had never disinfected a main using feed water from a second main before and given there was such a steep slope to the main to be disinfected, a special risk assessment should have been undertaken. The other steps not taken by the Defendant were articulated in relation to s 241(1)(b). The failure to use a flow meter was contrary to the Department of Public Works and Services specifications for the pipe disinfecting operation (note this is disputed by the Defendant's counsel who argues the dosage pump had a similar effect to a flow meter).
3. the failure to investigate the problem at 8.45am when Mr Innes advised the Defendant he had a problem
The Defendant should have used basic care at the time that Mr Innes told him at 8.45am that he had a problem. The Prosecutor argued it was normal industry practice that this would have been followed up. If the Defendant had taken steps to identify the problem at 8.45am it is probable he would have realised that at that time a whole drum of sodium hypochlorite had been used. Further mitigating measures could have been taken at that time to neutralise the pollutants in the unnamed watercourse and the Fish River which may have prevented or reduced the size of the subsequent fish kill.
4. the second incident at 3.40pm at scour valve 7/8.
The Prosecutor argued that despite the Defendant knowing at 3.40pm that he may have allowed 7,200 litres of contaminated water to discharge into the Fish River at scour valve 7/8, he did not report the incident to anyone until 7.26pm that night when he informed the Council and self-reported to the EPA. As the Defendant has operated under a pollution control licence under the Clean Waters Act 1970 for approximately ten years which had a discharge limit for chlorine of 3mg/L when disinfecting mains the Defendant should have been aware of the seriousness of any discharge to waters involving water chlorinated above that level. The incident should have been reported much earlier than it was.

74. Of the four matters raised by the Prosecutor to support its argument, matters 1 and 2 have already been considered in relation to s 241. I do not think it is appropriate to consider these again in the way the Prosecutor is suggesting. In relation to item 3, while the Defendant can be criticised for failing to inquire further of Mr Innes the cause of a problem at 8.45 am, his failure to do so was not reckless and should be characterised more as an unfortunate oversight. Nor do I accept that the Defendant was slow to report the incident at scour valve 7/8, as alleged in item 4. I therefore do not accept the Prosecutor’s suggestion that there are aggravated circumstances in addition to matters I have considered pursuant to s 241(1).

Evenhandedness
75. The Court is required to have regard to other sentencing cases where the facts of other offences are of a similar nature: Camilleri's Stock Feeds at 701 - 702. The Prosecutor referred to three matters. Firstly, Environment Protection Authority v Orange City Council (Stein J, NSWLEC, 23 June 1995, unreported) in which the Defendant pleaded guilty and was fined $25,000 (the maximum fine for a corporation was $120,000). The offence involved a chlorine spill from the Orange Olympic Pool during a routine filling of the chlorine storage tanks. In Environment Protection Authority v Egan (Bannon J, NSWLEC, 5 August 1992, unreported) the defendant pleaded guilty to a breach of s 16(1) of the Clean Waters Act 1970 and was fined $8,000 (the maximum penalty was $60,000). The defendant was a cotton farmer who had installed a tail gate drainage mechanism on his farm which was faulty. The pesticide Endosulphan escaped into a nearby creek causing the death of a number of fish. Another matter of Environment Protection Authority v Harris (Talbot J, NSWLEC, 19 February 1993, unreported) was referred to in which the defendant was charged with breaching s 16(1) of the Clean Waters Act 1970 and pleaded guilty. He was fined $12,000, the maximum penalty being $60,000. He was the co-owner and manager of a property where cotton farming was conducted. The property had been sprayed with an insecticide Thiodan. As a result of rain there was a large buildup of stormwater in channels on the property which contained the insecticide Thiodan. The stormwater escaped into a nearby creek causing death to fish and other aquatic organisms.

Means of the Defendant to pay
76. Under s 6 of the Fines Act 1996, in the exercise of its discretion to fix the amount of any fine, the Court is required to consider such information regarding the means of the accused as is reasonably and practicably available for the Court's consideration and such other matters as, in the opinion of the Court, are relevant to the fixing of that amount. The Court was provided with copies of the tax returns for Mr Collis for 2001/2002 showing that in 2001 he had a taxable income of $6,880. In 2002 his taxable income was $20,345. His ability to pay a substantial fine is limited based on these records, which are the only financial matters placed before me. While this information does not provide a complete picture of all of the Defendant's assets and liabilities I do take the information into account in assessing penalty.

Mitigating factors
77. There are also a number of mitigating factors that should be taken into account to reduce any penalty. Firstly, the Defendant pleaded guilty at the earliest opportunity. A plea of guilty entitles the Defendant to a discount in penalty under s 22 of the Crimes (Sentencing Procedure) Act 1999 in the range of 10-25%: R v Thomson; R v Houlton [2000] NSWCA 309; R v Sharma (2002) 54 NSWLR 300. I consider the Defendant is entitled to the maximum discount envisaged under R v Thomson of 25%.

78. I consider that the Defendant has shown contrition and remorse in the material provided to the Court. I consider also that the Defendant has cooperated with the Prosecutor in all aspects of the investigation of these offences. The Defendant has now implemented measures to prevent a recurrence. I do not accept the Prosecutor's submission that there was delay on the part of the Defendant in reporting the incident at scour valve 7/8. Nor do I accept that in the circumstances concerning scour valve 1 the Defendant delayed in following up the matter. As soon as the Defendant became aware of the possible release from scour valve 1 he notified the relevant authorities and promptly prepared his second report for the EPA which pointed to the relevant circumstance. I believe the Defendant responded as quickly as he was able, given the timing of his knowledge of the incident, in the circumstances. Further, the Defendant is liable for the Prosecutor's costs, which may be considerable.

79. The Court has been supplied with a number of character references which refer to the authors' knowledge of the present prosecution. The references attest to the Defendant's good character and work habits. I note also that the Defendant has no prior record.

80. In all the circumstances I think that the Defendant’s penalty should be discounted by a total of 40%. Taking all the circumstances of the offence into account and also taking into account the Defendant's means to pay, after applying the discount of 40% I consider that a fine of $5,000 is appropriate.

Costs
81. During the hearing the Defendant's counsel indicated he wished to raise the issue of the quantum of the Prosecutor's costs, namely that the Court should limit the quantum of the Prosecutor's costs payable by the Defendant on the basis that those costs are excessive. The Prosecutor indicated that if anything other than the usual costs order in Class 5 proceedings was proposed by the Court it would need the opportunity to make submissions. I indicated to the Defendant's counsel that it would be more appropriate that I make the usual order as to costs in Class 5 proceedings and that any issue of quantum be left to the costs assessor, if the matter could not be agreed by the parties.

82. I note that since this matter was heard Cowdroy J handed down judgment in Peter Carter v Verna Wall [2003] NSWLEC 94 in which he held the Court did not have power to make an order limiting the quantum of costs in class 5 proceedings.

Orders
83. The Court orders that:
1. The Defendant is convicted of the offence with which he is charged.
2. The Defendant is fined the sum of $5,000 to be paid to the Registrar of the Court within 28 days of today's date.
3. The Defendant must pay the Prosecutor’s costs of the proceedings against him, as agreed or assessed.
4. The exhibits may be returned.