Environment Protection Authority v Ross

[2009] NSWLEC 36

Reported Decision: 165 LGERA 42

Land and Environment Court

of New South Wales

CITATION:	Environment Protection Authority v Ross [2009] NSWLEC 36
PARTIES:	PROSECUTOR Environment Protection Authority DEFENDANT Harold Mark Ross
FILE NUMBER(S):	50072 of 2008
CORAM:	Pain J
KEY ISSUES:	ENVIRONMENTAL OFFENCES :- water pollution - water contaminated by pesticide - serious environmental harm - whether defendant's risk assessment and preventative measures in using pesticide adequate - s 10 dismissal inappropriate - mitigating factors - consideration of means to pay penalty and costs - whether order other than a penalty appropriate
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 s 3A, s 10, s 21A Fines Act 1996 s 6 Protection of the Environment Operations Act 1997 s 120, s 241, s 244, s 250
CASES CITED:	Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Bentley v BGP Properties (2006) 145 LGERA 234 Cabonne Shire Council v Environmental Protection Authority (2001) 115 LGERA 304 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 (EPA) v Barnes [2006] NSWCCA 246 Environment Protection Authority v Brazel (No 3) (2002) 121 LGERA 156 Environment Protection Authority v Capdate (1993) 78 LGERA 349 Environment Protection Authority v Cargill Australia Ltd [2007] NSWLEC 337 Environment Protection Authority v Colenden [2007] NSWLEC 289 Environment Protection Authority v Johnson and Johnson Pacific Pty Ltd [2001] NSWLEC 99 Environment Protection Authority v Jolly’s Pest Control Pty Ltd [2003] NSWLEC 398 Environmental Protection Authority v Nalco Australia Pty Ltd [2007] NSWLEC 831 Environment Protection Authority v Rail Infrastructure Corporation (2002) 119 LGERA 409 Environmental Protection Authority v Timber Industries Ltd [2001] NSWLEC 25 Environment Protection Authority v Williams [2006] NSWLEC 722 Fairfield City Council v Hong Song Ngo [2008] NSWLEC 200 Hoare v R (1989) 167 CLR 348 Hunter Water Board v State Rail Authority of New South Wales [No 2] (1992) 75 LGRA 22 Markarian v The Queen (2005) 228 CLR 357 Newcastle City Council v Pace Farm Egg Products Pty Ltd (No 3) [2005] NSWLEC 423 R v Carroll [2008] NSWCCA 218 R v Rahme (1989) 43 A Crim R 81 R v Sharma (2002) 54 NSWLR 300 R v Slattery (1996) 90 A Crim R 519 R v Thomson; R v Houlton (2000) 49 NSWLR 383 Thorneloe v Filipowski (2001) 52 NSWLR 60 Veen v The Queen (No 2) (1988) 164 CLR 465
DATES OF HEARING:	23 March 2009 25 March 2009 (written submissions) 26 March 2009 (written submissions)
DATE OF JUDGMENT:	31 March 2009
LEGAL REPRESENTATIVES:	PROSECUTOR Ms K Hewitson (solicitor) SOLICITORS Department of Environment and Climate Change DEFENDANT Mr M Fraser SOLICITORS Moray and Agnew

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

31 March 2009

50072 of 2008 Environment Protection Authority v Ross

JUDGMENT

1 Her Honour: The Defendant is charged with an offence under s 120 of the Protection of the Environment Operations Act 1997 (the POEO Act) for polluting waters at Dungay on 7 October 2007. The pollutant was a liquid insecticide containing Bifenthrin which polluted Dungay Creek and a tributary. The Defendant sprayed the banks and areas adjacent to the waters of the creek so that the pesticide fell or was washed, blown or percolated into the waters.

2 The Defendant has pleaded guilty and has therefore admitted the essential elements of the offence. The offence is one of strict liability so that mens rea is not an element of the offence. The Defendant is now being sentenced.

3 The maximum penalty applicable to offences under s 120(1) of the POEO Act is $250,000 for an individual. The penalty for this offence was increased from $120,000 to $250,000 in May 2006.

Summary of Statement of Agreed Facts

4 The Defendant runs, with his wife, a partnership called Brunswick Byron Pest Control (BBPC). He employs his son in the business. A film company, Granada, leased land in Dungay Creek Road, Dungay (the site). It wanted to have mosquitoes eradicated from parts of the site. BBPC was given the job and quoted on the basis of using Bifenthrin.

5 It was agreed the spraying would be done on 7 October 2007. The Defendant and his son came to the site and were met by a film company employee. That employee accompanied them most of the day and showed them where to spray. The Defendant told him they would be using a product that would be safe to use in the areas adjacent to the waters. The Defendant used a back pack spray device. Spraying took place throughout the day from 9am to about 7pm.

6 The employee saw the Defendant and his son spray near the creek and on the creek banks whilst standing on rocks in the creek bed. They sprayed upwards at a 45 degree angle at the underside of the foliage. He saw the spray travel six or seven metres from the nozzle. Some mist from the spray drifted into the creek particularly in areas 3 and 4 which were marked on the plan attached to the Statement of Agreed Facts (SOAF). He did not see if any pesticide was sprayed directly into the creek.

7 There was a storm on the evening of 7 October 2007 and rain fell. The landowner of the site leased by the film company recorded that 2.4mm had fallen overnight.

8 On the morning of 8 October 2007 film company employees observed over 200 dead crayfish and many ill crayfish in the creek. There were also several dead water insects, crickets and centipedes. Approximately 34mm more rain fell that night. On the morning of 9 October 2007 over 100 dead crayfish were seen by Granada employees. An employee rang the Department of Environment, Conservation and Climate Change (DECC) environment line to report the crayfish. The property owners also observed hundreds of dead crayfish and hundreds of ill crayfish in the creek.

9 An officer from DECC and an officer from the Tweed Shire Council attended the site on 9 October 2007 for a preliminary investigation of the incident. They were later joined by an officer of Department of Primary Industries. All observed large numbers of dead or ill crayfish in the water. Water and biota samples were collected.

10 On 11 and 12 October 2007 more DECC officers attended the creek and saw many dead and sick crayfish and insects in the creek. Further water, sediment and vegetation samples were taken. Samples were also taken on 30 October 2007 and 15 February 2008 by DECC officers. The samples taken were analysed and showed significant concentrations for Bifenthrin in the soil samples and two creek sediment samples (see table in par 19 of the SOAF). Samples taken in October showed Bifenthrin concentrations of 87 parts per million (ppm) in soil and 230 ppm and 87 ppm in creek sediment at two locations. Mr Moreno Julli, an ecotoxicologist employed by the Prosecutor who prepared a report that was annexed to the SOAF, concluded that all concentration rates that were detected in the sediment samples analysed were likely to have had an acutely toxic effect on sensitive benthic aquatic life and some insect larvae. Sediment concentrations greater than 100ppm are likely to have resulted in acute toxic effects on a larger number of aquatic macroinvertibrate species present in the affected area.

11 Some fauna samples were taken on 9 October 2007 and showed traces of Bifenthrin. Concentration rates of 110 parts per billion (ppb) were recorded in a centipede and concentration rates of 64 ppb were recorded in a dead crayfish. Table 2 of Mr Julli’s report shows concentration rates at which Bifenthrin becomes toxic for a range of animal species. For aquatic crustaceans toxicity occurs at concentrations between 0.004 ppb and 0.079 ppb depending on the species. For aquatic larval forms of insects toxicity occurs at concentration between 0.08 ppb and 1.1 ppb depending on the species.

12 The testing by Mr Julli assumed that dilution rates and spray concentration and Bifenthrin concentration in the spray mix used by the Defendant were within the specified label application rates.

13 The approved label for Bifenthrin states that it is dangerous to fish and aquatic organisms and must not contaminate dams, rivers, streams, waterways or drains. The active ingredient is stated to be very toxic to aquatic organisms.

14 In terms of the risk assessment undertaken by the Defendant before spraying, he checked the weather report for 7 October 2007 but not subsequent days. The forecast for the day reported by the Australian Bureau of Meteorology at 5.18am on 7 October 2007 for the Northern Rivers area was for:

A warm day with cloudy periods. Whilst there is the chance of some thunder, little if any precipitation is expected. Light to moderate northwest winds turning fresh and gusty north to northeasterly near the coast in the afternoon ahead of a moderate southerly change extending up from the south

Isolated showers and thunderstorms were predicted for 8, 9 and 10 October 2007. At 4.03pm on 7 October 2007 the forecast had worsened for that evening:
Chance isolated showers and thunderstorms. Moderate to fresh and gusty north to northwest winds tending fresh to strong northeasterly near the coast, easing in south ahead of a moderate southerly change extending to the far south overnight

15 The Defendant took the following steps to minimise or eliminate risk to aquatic life in the areas sprayed by him:

(a) he considered likely weather conditions on the basis of a television weather report;

(b) he complied with the recommended spray concentrations and spray rates of the manufacturer; and

(c) he sprayed away from the creek and dams.

16 The Defendant was issued with a clean up notice on 20 November 2007 which required him to employ a person experienced in sediment removal from aquatic environments to remove the contaminated sediment from three artificial pools built by Granada within the creek, report on how the clean up was to be done by 7 December 2007 and to have completed the clean up by 31 January 2008. On 13 December 2007 the Defendant advised DECC that he could not find anyone to do the clean up in the required time frame. An amended clean up notice was issued on 14 December 2007 requiring the clean up to be completed by 31 December 2007. With the agreement of DECC, the Defendant undertook the removal of six to eight cubic meters of sediment from the three pools on 20 December 2007. Care was taken to ensure that no contaminated sediment was returned to the waters. He took the sediment to his own land where it was buried.

17 Mr Julli concluded in his report that:

(a) the substantial number of crayfish killed in a limited section of Dungay Creek could not have been caused by any other cause, such as low dissolved oxygen in the creek waters; and

(b) the absence of Bifenthrin in sediment samples taken from areas upstream of where the spraying commenced, supports the conclusion that the Bifenthrin which caused the death of crayfish and insects in Dungay Creek came from the spraying undertaken by the Defendant.

Environmental harm

18 Serious environmental harm resulted from the spraying along the creek on 7 October 2007. Hundreds of crayfish and some insects were killed as a result. As outlined in the SOAF at par 36 and 37:

36 Ms Jan Miller, a Senior Environmental Scientist employed by the Prosecutor concluded that there was a serious impact to the aquatic macroinvertebrates in the Creek at the Snake Rock Camp site and at lease one other site to a lesser extent. … On the basis of the information available to her she concluded that:

· there has been a serious impact to the aquatic macroinvertebrates in the Creek and at the Snake Rock Camp site;

· high levels of birenthrin was [sic] found in the soil, vegetation and to a lesser concentration, in the water at the Snake Rock Camp site;

· six weeks after the application of insecticide on 7 October 2007, the macroinvertebrates assemblages had not recovered at the Snake Rock Camp site; and

· there was evidence that the Trials Bridge sampling point was also impacted to some extent by the pesticide application.

37 In addition to the matters recorded above, Mr Moreno Julli in his report, also concluded as follows:

· Bifenthrin is a pyrethroid insecticide which has a relatively long environmental persistence time; Bifenthrin is very to extremely toxic to terrestrial and aquatic insects, as well as to fish species and crustaceans;

· Sediment samples taken from within Dungay Creek remained contaminated for approximately two months following the spraying, to an extent likely to cause adverse effects on sensitive aquatic life;

· The removal of 6 to 8 cubic metres of contaminated sediment from Dungay Creek by the Defendant significantly reduced the residual toxic effects on aquatic life;

· Sediment samples taken four months after the spraying did not contain detectable levels of Bifenthrin; and

· He would expect the recovery of affected sections of Dungay Creek would have commenced rapidly once the presence of toxic Bifenthrin residues were eliminated and that full recovery of crayfish and macroinvertebrate populations to pre-incident levels might occur within several breeding seasons.

Mr Julli’s report also states at p 17:
If pesticide application occurred across the Dungay Creek waters (or in the dry creek bed), rather than in a direction solely away from the creek, then direct contamination of creek waters could have occurred. Direct deposition of even small amounts of the prepared spray would potentially contaminate a large volume of Dungay Creek waters. For example given a Bifenthrin concentration of 800 mg/L in the spray solution applied by Mr Ross, then a teaspoon (5mL) of this material could potentially contaminate 4000 litres of creek water to rapidly kill crustaceans and other sensitive aquatic life.

Defendant’s affidavit

19 An affidavit of the Defendant sworn 6 March 2009 was read. The Defendant states that he is a licensed pest controller and has been in the pest control business for approximately 34 years without incident. The Defendant describes the changes in the types of chemicals used in the industry as never ending and that he regularly attends training courses for new products. He undertook training in the use of Bifenthrin in about 1996 from Ensystex Australia, a company specialising in pest treatment products.

20 The Defendant was engaged by Granada to carry out work at the site to deal with mosquitoes present in plague proportions. He attests that he took particular care in this instance to ensure the pesticide mix was prepared and used in accordance with the manufacturer’s specifications. He chose the pesticide because to his knowledge no other chemical was registered for the type of treatment required in the particular environment, a minimal amount of chemical possible could be used at the spray rate required and the chemical has a relatively rapid rate of breakdown in the environment minimising long term impacts.

21 Before spraying the Defendant attested that he considered the weather forecast for the day and believed it was a suitable day for the chosen treatment because there was no forecast of storms which was unusual for the region at that time of year. The forecast was for a change with nil to minimal rainfall. Although he considered there might have been some difficulty with the wind predicted, the change was predicted for later in the day when spraying was to be completed. He believed the day was an ideal one for treatment.

22 After the incident, the Defendant stated the he had difficulty in arranging for a qualified third party to remove and dispose of contaminated sediment and so he carried out the clean up. This took two full days and involved three other people. The clean up was estimated to cost him $2,581.50. Annexed to the affidavit were lengthy details of the Defendant’s business takings and assets and liabilities such as mortgages and overdraft liabilities over the last three years. A summary of financial circumstances was provided by his counsel. The Defendant stated that he conducts his business as a partnership with his wife and his son is employed in the business. He owns with his wife as joint tenants two investment properties and they have a 1/3 share in a family property, the value of which cannot be realised. His present financial situation would enable him to pay $100 per month or he would have to sell at least one of the investment properties to pay known costs and any fine imposed by the Court.

23 The Defendant described his community involvement as Captain of the Mullumbimby Rural Fire Service. The service of the Defendant, his son and his wife is a cost to the business as jobs may need to be postponed and he continues to pay his son’s wages when he is training or fighting fires. The Defendant sponsors activities at the Mullumbimby Public School and Mullumbimby High School.

24 The Defendant attested that he did not anticipate the adverse consequence of the mosquito treatment having adopted precautionary measures. He stated that he is sorry for the damage caused and greatly regrets the environmental damage. The Defendant attested that the incident is a source of great embarrassment and shame and assured the Court there will be no repetition of the incident.

25 The summary of financial circumstances shows that the Defendant and his wife are self employed and hold all assets jointly. A property at Mullumbimby is valued at $340,000 and is held subject to a mortgage of $47,325. An apartment at Surfers Paradise valued at $285,000 is held subject to a mortgage of $215,352. The Defendant and his wife also have a 1/3 share in a family property in Mullumbimby, the value of which is unable to be realised. The Defendant is liable for a business loan of $98,928 and has a business overdraft of $19,349.51. The Defendant’s other financial liabilities are repayments on two cars, credit card debts and an outstanding tax liability of over $10,000. The Defendant’s taxable income is approximately $60,000 to $70,000 per annum. He employs his son in the business. Apart from the investment properties purchased for superannuation purposes the Defendant and his wife have nominal superannuation of around $500. The Defendant stated that to pay the investigation costs, the Prosecutor’s legal costs, his own legal costs and any fine he will sell the Mullumbimby property. The Defendant has no long-term future plans in place for financial security apart from these investment properties.

26 The Defendant gave oral evidence. He stated that he had received training from Ensystex Australasia in the use of Bifenthrin. He used Bifenthrin because it dries on the vegetation and breaks down over 6-8 weeks through exposure to sunlight and weather. He said that the label stated up to 24 to 48 hours was required for the product to completely dry but this depended on the concentration used. A low concentration was required for mosquito eradication. He noted that humidity and temperature both affect the drying time. On the day of spraying he estimated that in some areas the drying time would be up to 10 to 12 hours and possibly up to 48 hours in some areas of heavy overgrowth. The Defendant stated the he considered the weather forecast for the 24 hours after spraying as he believed this would be sufficient to allow the Bifenthrin to dry. He said that he was unable to recheck the weather at any time during the day on 7 October 2007 because he had no access to a phone or computer and he had no reason to believe the weather would change. The Defendant stated that he could not see the thunderstorm in the afternoon approaching on the day he was spraying because he was situated low in a gully with high both sides which meant he had no vision. The Defendant described the area where Bifenthrin was collected in the sediment as an artificial dam and not a natural creek. The area where the Defendant sprayed was described as old banana country with a lot of regrowth of lantana. Palm trees had been planted by Granada. The Defendant stated that the incident and subsequent prosecution has caused him and his wife a lot of financial stress and he may no longer be able to retain his son as an employee. He was paid approximately $3,500 to carry out the work for Granada including approximately $1,000 for the Bifenthrin.

27 A personal reference and statement of the Defendant’s community service dated 12 March 2009 was provided to the Court from Mr Bob Wilcox, Operations Officer of the Far North Coast Rural Fire Service. Mr Wilcox was aware of the charges against the Defendant which arose during the running of his business. Mr Wilcox acknowledged that the Defendant joined the Mullumbimby Rural Fire Brigade in 1994 after being a volunteer of the State Emergency Service. He holds the position of Captain. He is described as being of exceptional character and well respected by all. He has attended 480 incidents since 2001 including in Healsville during the recent devastating bushfires in Victoria. Mr Wilcox believes the incident was accidental and isolated and he has witnessed the Defendant’s extreme remorse.

Relevant sentencing considerations

28 Section 3A of the Crimes (Sentencing Procedure) Act 1999 (the CSP Act) sets out the purposes of sentencing. Section 3A provides:

The purposes for which a court may impose a sentence on an offender are as follows:

(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the crime and the community.

29 The CSP Act (in particular, Pt 3 Div 1) contains provisions relevant to sentencing procedures. Section 21A of the CSP Act identifies numerous matters which a court must take into account when sentencing including those in relation to aggravating (s 21A(2)) and mitigating (s 21A(3)) factors. The sentence must reflect both the objective circumstances of the offence and the personal (subjective) circumstances of the defendant; Markarian v The Queen (2005) 228 CLR 357 at [73].

30 The POEO Act is directed to the protection, restoration and enhancement of the environment of NSW including by reducing harm to the environment through pollution prevention (s 3).

31 In identifying the relevant objective circumstances, s 241(1) of the POEO Act identifies the following factors to be taken into consideration in imposing a penalty for offences committed under that Act (so far as they are relevant).

(a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence

32 Harm to the environment is defined in the Dictionary to the POEO Act as including:

… 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 .

33 The Prosecutor submitted that the harm caused was serious as Bifenthrin is very toxic to aquatic organisms. While the creek sediment remained contaminated until cleaned up on 20 December 2007 there was potential for further harm to occur. Approximately one kilometre of Dungay Creek and the affected tributary was affected by the toxic effects of the chemical.

34 It is submitted that there was clearly actual harm given the large numbers (hundreds) of dead crayfish and insects recorded in the SOAF over several days of observations and based on sampling between 9 October 2007 and 15 February 2008, detailed in par 19 of the SOAF. Sampling showed very high levels of concentration of Bifenthrin on the soil next to the creek and in the creek sediment. Fauna samples also showed high levels of concentration, as detailed in par 20 of the SOAF. The harm is detailed at par 35, 36 and 37 of the SOAF. That harm is also caused to the ecosystem of the fauna that have an ecological relationship to the waters. Bifenthrin in the ecosystem created a severe localised effect on a wide range of aquatic species. The fauna within the affected area of waters will not recover for several years as it will take several breeding cycles for recovery to occur.

Finding

35 I accept the Prosecutor’s submissions, which are based on the SOAF. The actual and potential harm is detailed in the SOAF and accepted by the Defendant. While the Defendant submitted the harm was not permanent, by which I infer the fauna and its ecosystem will be restored to the same level as before the incident over several breeding cycles over several years, the actual harm included the death of large numbers of aquatic dwelling species. The circumstance that the environment of the creek is modified by artificial structures is not a factor to diminish that harm. The harm caused is reasonably serious.

(b) the practical measures that may be taken to prevent, control, abate or mitigate that harm

Prosecutor’s submissions

36 The Prosecutor submitted that there were a number of simple practical measures that could have been taken to prevent the incident given that the Defendant had the approved label and Material Safety Data Sheet (MSDS) which both warn that Bifenthrin is toxic to aquatic organisms. In Environment Protection Authority v Rail Infrastructure Corporation (2002) 119 LGERA 409 at [87] Talbot J stated that as there is an inherent risk in spraying herbicides where runoff could occur then it is reasonable to expect that harm may be caused to receiving waters. A high level of care is expected. The measures that should have been taken were:

(i) checking the weather report for the day of the proposed spraying but also subsequent days to ensure that there was no rainfall predicted;

(ii) maintaining a no spray buffer zone on either side of the waters to provide a margin of safety against the possibility of pesticide spray drifting into the waters and reducing the likelihood of contaminated soil particles and sediment being washed into the waters;

(iii) ensuring he was not standing on the creek bed when spraying and thereby reducing the possibility of any pesticide drifting into the waters;

(iv) refusing to carry out the spraying (near the water I infer) if risk of polluting waters too high.

37 The rain that fell overnight on 7 October 2007 was light, only 2.4mm recorded in the rain gauge on the property the site was located, and was unlikely to have washed large amounts of Bifenthrin into the creek. This suggests the cause of contamination was spray drift, as observed by Mr Hawker in par 11 of the SOAF. The heavy rain overnight on 8 October 2007 was likely to have washed additional chemical into the creek. The Defendant should have ensured he looked at the weather forecast beyond the day of the spraying as he would then have been on notice of the likelihood of rain.

38 It was not enough for the Defendant to take the precautions that he did in not spraying directly into the waters and he is highly culpable.

Defendant’s submissions

39 The Defendant’s counsel submitted that he took several active steps to abate and mitigate harm. He considered the weather report for the day he was spraying, he complied with the recommended spray concentrations and rates of the manufacturer and sprayed away from the creek. The weather forecast on Pay TV in the early morning was “little precipitation expected” suggesting that it was safe to spray that day. The Defendant states in his affidavit that he thought it was safe to spray given that weather report. The 4.03 pm forecast changed to a chance of isolated showers and thunderstorms. According to his affidavit he was more concerned about wind.

40 Once Bifenthrin is dry, it is safe as it “binds” onto the vegetation and cannot be washed off. The approved label says not to apply to wet soil. The cause of Bifenthrin washing into the creek on 7 October 2007 was not spray drift, contrary to the Prosecutor’s submissions. The Defendant tendered over objection an extract from a record of interview with Mr Hawker, Granada employee, on 18 December 2007 in which he expressed his view that he could “probably say he saw spray drift over the creek”. An extract from Mr Hawker’s affidavit (par 30) was also tendered. That states that he did notice some mist from the spray drift over the creek bed. This wording appears in the SOAF at par 11. The Prosecutor has not established beyond reasonable doubt that the cause of contamination on 7 October 2007 was spray drift in light of Mr Hawker’s less definite statement in the record of interview. The Defendant does not dispute that the heavier rainfall on 8 October 2007 would have washed Bifenthrin into the creek.

41 An alternative hypothesis put forward by the Defendant in relation to events on 7 October 2007 is that there was a thunderstorm in the evening after the spraying had ceased at 7pm and after the Defendant had left. The thunderstorm which deposited rain on the sprayed areas of the creek was heavier than the 2.4mm collected in the rain gauge on the property approximately one kilometre away, according to the Defendant’s counsel’s submissions relying on the scaled plan of the area attached to the SOAF. An extract of the record of interview of Mr Hawker was tendered in which he stated that he drove through heavy rain when he left the site. Mr Hawker could not say whether it poured on the site. Part of the record of interview of the Defendant was also relied on as that stated he had been told by people (unspecified) that it poured. The Defendant’s counsel asked the Court to take judicial notice that thunderstorms can drop large amounts of rain over a small area. The chemical washed into the creek as a result of the unexpected thunderstorm. It was not in the forecast early on 7 October 2007. The main error of the Defendant was the failure to obtain an updated weather report during the day on 7 October 2007.

42 The Defendant undertook the clean up measures required by the Prosecutor after he was unable to find anyone else in the necessary time frame. He took all the measures available to abate or mitigate the harm caused. Overall he took all the steps necessary in his professional opinion after many years of experience and after training in the use of this chemical. It is not appropriate to require a standard of perfection.

43 The Prosecutor has not established beyond reasonable doubt that the cause of the pesticide being in the water on 7 to 8 October was spray drift. The Defendant accepts there was a strong likelihood that the heavy rain on 8 October 2007 washed Bifenthrin into the creek.

Finding

44 According to the SOAF par 26, the steps taken by the Defendant to minimise the possibility of spray entering the creek were:

(a) he considered likely weather conditions on the basis of a television weather report;

(b) he complied with the recommended spray concentrations and spray rates of the manufacturer; and

(c) he sprayed away from the creek and dams.

45 In terms of the measures that could have been taken which the Prosecutor alleged (par 36), key evidence relevant to the Defendant’s decision to use Bifenthrin close to the creek was his oral evidence that the chemical is designed to dry on contact with vegetation and is thereafter water insoluble. Once dried it is not dislodged by rain according to his understanding of the chemical’s application, gained from the training course that he attended. No evidence contrary to this evidence is before me and I accept that is the reason the Defendant applied Bifenthrin next to the creek without a buffer zone (par 36(ii)).

46 The approved label states that the re-entry time (which means drying according to the Defendant’s counsel) is 3-4 hours. The Defendant’s oral evidence is that he considered it could take some areas of chemical sprayed in shaded bush up to 24 hours or more to dry depending on factors such as temperature and humidity. The concentration of chemical required to destroy mosquitoes is lower than for example termites and the drying time is less than for higher concentrations. Apart from the reference to the chemical being toxic for aquatic animals and identifying that water bodies should not be contaminated with it, there is no suggestion on the label or in the MSDS or in the training which the Defendant attended which suggested that the chemical could not be sprayed next to water or that a minimum buffer zone around a water body was necessary.

47 When these matters are considered, whether a buffer zone should have applied as the Prosecutor argued, while desirable in hindsight is not a measure that the Defendant, an experienced operator would necessarily take, given the lack of information and training about it. The same also applies to the application of Bifenthrin immediately next to water, which is essentially the same issue as requiring a buffer zone.

48 Given the highly toxic effect of the chemical on aquatic animals there appears to be a gap in the regulatory framework, as found in the approved label and MSDS and the training by Ensystex Australasia, about how this chemical should be used very close to water bodies. The approved label and MSDS also appear to be inadequate as they say only that the re-entry time is three to four hours. That is inadequate guidance for Bifenthrin sprayed outdoors, particularly near water bodies. According to the Defendant the drying time can be 24 hours or more depending on conditions. The label otherwise states it should not be sprayed on wet soil. Mr Julli’s evidence is that one teaspoon at 800mg/L concentration of the spray solution could contaminate up to 4,000 litres of water (par 18) to rapidly kill crustaceans and other sensitive aquatic life. Greater caution in the application of such a chemical around any water body is warranted if the risk of serious environmental harm is to be minimised and hopefully eliminated. An appropriate buffer zone should be considered as part of any further written instructions issued or training given by Ensystex Australasia.

49 In terms of the alternative hypotheses raised by the Defendant in relation to the cause of the chemical contamination on 7 October 2007, given what is in the SOAF based on Mr Hawker’s affidavit the Prosecutor has established that there was some spray mist seen across the creek when the spraying occurred. In relation to an unexpected thunderstorm on the evening of 7 October 2007, the Defendant does not have any direct evidence that it occurred. The small amount of rain collected (2.4mm) in the rain gauge about a kilometre away from the area does not confirm such a downpour. His counsel relied on a hearsay statement of the Defendant that he was told by persons (unspecified) that it poured on the evening of 7 October 2007 and from Mr Hawker of Granada that it rained heavily on him after he left the site by car. The Defendant must establish such matters on the balance of probabilities and has not done so.

50 The need to check the weather report for the day of spraying and at least the next day to ensure as far as possible that there will be no rain is essential if Bifenthrin is to be applied in an area where there is any possibility that it would be able to get into water before drying. The Defendant gave evidence that he checked in the morning of 7 October 2007 but not for the weather report for the next day. He should have done so given the requirement, according to his evidence, that up to 24 hours or more was required for the Bifenthrin to dry on thicker vegetation. There were practical measures which could have been taken to prevent the harm occurring on the day the Bifenthrin was applied.

51 In terms of clearing up the contaminated sediment, the Defendant complied with the clean up notice issued by the Prosecutor himself when he could not find anyone else to do the work. He took steps as identified in the SOAF to clean up and therefore abate the harm caused.

(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

52 The Prosecutor submitted that the harm was foreseeable and the Defendant was an experienced pest control operator. He was aware that the pesticides used were highly toxic in water. He should have been aware that using a fine mist spray was likely to result in the pesticide drifting onto the waters particularly as he stood in the creek to spray. Any application of pesticides means there is potential for the pesticide to run into waters during later rainfall.

53 The Defendant submitted that he took the necessary precautions in light of his experience and training.

54 The MSDS and the approved label clearly state that Bifenthrin is toxic to aquatic animals. I have found in relation to s 241(1)(b) that the weather report for 8 October 2007 should have been checked. Given the Defendant’s evidence about the drying time required for Bifenthrin, the text of the approved label and the training received by him, while it would clearly have been highly desirable for there to be a buffer zone in place to reduce the likelihood of runoff into the creek, the fact the Defendant did not apply such a measure is understandable in the circumstances before me. It was however unsatisfactory that chemical spray was allowed to settle in the creek. The Defendant could have foreseen the harm caused given the highly toxic nature of Bifenthrin to aquatic life.

(d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence

55 The Prosecutor submitted that the Defendant could and should have reasonably foreseen the harm caused by the offence as he had full control over the causes that gave rise to it. He selected the chemical used and its application. While he had no control over the rainfall he did choose to spray when there was some chance of rain that day and following. He gained a commercial benefit in carrying out the spraying and accepted the risk in doing so.

56 The Defendant relied on the submissions concerning foreseeability and control.

57 The Defendant did have control over the causes giving rise to the offence given my finding on drift of chemical spray into the creek and the need for greater checking of weather reports.

(e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee

58 Not applicable.

59 In relation to the s 241 factors and the need to consider the objective circumstances, regard must be had to the culpability of the Defendant and the individual circumstances which led to the commission of the offence and the consequences of those circumstances, R v Carroll [2008] NSWCCA 218. The Prosecutor submitted that the offence committed by the Defendant is objectively serious in light of the harm caused to fauna and the ecosystem.

60 I accept the Defendant’s submissions concerning the Defendant’s state of mind that the actions giving rise to the offence were not premeditated, the consequences were unintended, the manufacturer’s instructions were followed, the Defendant was aware of the need to check the weather forecast and did so for the early morning of 7 October 2007 and the event was accidental. The Defendant was unable to check the late afternoon report as he was out of range of a radio or television. I do not however accept the submission that this case falls within Thorneloe v Filipowski (2001) 52 NSWLR 60 per Spigelman CJ at 76 that the Defendant could not as a matter of practical reality have done anything to ensure the adverse consequence of the conduct did not occur. He could and should have prevented the mist spray on the creek and should have checked the weather report for at least 8 October 2007.

61 I do not consider the fact the Defendant was engaged in commercial activity of itself gives rise to an aggravating circumstance. While he did receive payment for the spraying work from Granada it was in the usual course of his business and he sprayed a much larger area of the property away from the creek section the subject of this offence without mishap. I accept that there was no commercial gain to him from committing the offence. His oral evidence is that he received about $3,500 from Granada of which about $1000 was the cost of the Bifenthrin. None of the aggravating factors referred to in s 21A(2) apply.

62 The matters discussed in relation to s 241(1)(b), (c) and (d) suggest a low level of culpability on the part of the Defendant, albeit the environmental harm caused was reasonably serious.

Section 10 Crimes (Sentencing Procedure) Act 1999

63 Sections 10 of the Crimes (Sentencing Procedure) Act 1999 (the CSP Act) relevantly provides:

(1) 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,
(c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program.

( 2) An order referred to in subsection (1) (b) may be made if the court is satisfied:

(a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or
(b) that it is expedient to release the person on a good behaviour bond.

…
(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors:
(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.

64 The Defendant’s counsel argues that s 10 of the CSP Act should be applied in light of his antecedents and because there are extenuating circumstances. He is of impeccable character and undertakes substantial community service work as part of the Rural Fire Service. This is identified in the personal letter of reference tendered. The offence is not trivial but that is not a bar to the application of s 10.

65 The Prosecutor opposed the application of s 10 as the offence is not a mere technical breach of legislation and is not trivial, rather it is a serious breach of environmental protection legislation. It resulted in substantial actual harm and could have been easily avoided.

Finding on s 10

66 In considering the factors to take into account in determining whether an order ought be made under s 10(1)(a), s10(3) refers to a person’s character and antecedents. I have before me an excellent reference which attests to the Defendant and his substantial community work for the Rural Fire Service. His evidence demonstrates that he is a small business operator in partnership with his wife in a pest control business for many years. In relation to s 10(3)(b) the offence is not trivial given the serious environmental harm that has resulted, that the harm was foreseeable and that measures to prevent it occurring were available to the Defendant. The Defendant is a commercial pest control operator engaged on a daily basis in the application of chemicals in the environment. In relation to s 10(3)(c) there are no extenuating circumstances. The unexpected thunderstorm on the evening of 7 October 2007, which has not been established on the balance of probabilities in any event, is not an extenuating circumstance given that the Defendant stated in oral evidence that thunderstorms were not uncommon. The toxic effects of Bifenthrin on aquatic organisms suggests that its use near waterways requires great caution.

67 In Newcastle City Council v Pace Farm Egg Products Pty Ltd (No 3) [2005] NSWLEC 423 I reviewed the application of s 10 at [24]-[25]:

Several cases have made it clear that s 10 of the Crimes (Sentencing Procedure) Act (and its predecessor s 556A of the Crimes Act 1900) is rarely applied in pollution cases. In Environment Protection Authority v Attard [2000] NSWCCA 242, Sperling J (with whom Mason P and Smart AJ agreed) stated at [5] that s 556A would only be applied in exceptional circumstances. In Hunter Water Board v State Rail Authority of New South Wales [No 2] (1992) 75 LGRA 22, Stein J at 23 said:

This Court has not infrequently stated that it will be a rare case when a dismissal under s 556A is seen as appropriate for an environmental offence, especially a breach of the Clean Waters Act

In Thorneloe v Filipowski (2001) 52 NSWLR 60, Spigelman CJ at 74 adopted the statement of Stein J in Hunter Water Board in the context of s 10 of the Crimes (Sentencing Procedure) Act. Similarly, in Environment Protection Authority v Johnson and Johnson Pacific Pty Ltd [2001] NSWLEC 99, Bignold J stated in the context of s 10 of the Crimes (Sentencing Procedure) Act at [20] that:

water pollution offences created by the PEO Act (and its predecessor legislation) have long been considered to be serious offences for which significant maximum penalties have been prescribed by Parliament.

68 This case is not similar to Thorneloe v Filipowski in which a s 10 order was made because the circumstances giving rise to the offence were beyond the control of that particular defendant and he could not have done anything to prevent it.

69 I do not consider an order under s 10(1)(a) is appropriate in the circumstances of this case. The Defendant’s counsel also referred to s 10(1)(b) being the making of an order discharging a person on condition that the person enter into a good behaviour bond for a term not exceeding two years. Section 10(2) states that such an order may be made if it is inexpedient to inflict any punishment other than nominal punishment on the person. For the reasons stated above in relation to s 10(3) an order under s 10(1)(b) is also not appropriate.

Sentencing considerations

70 The Defendant’s counsel also submitted that if I did not make an order under s 10 then he should not be liable for any penalty. The Defendant has been punished sufficiently already by the liability he has incurred for the Prosecutor’s costs of $35,000 and his legal costs have already placed a substantial financial burden on him. The prosecution process has also placed a substantial burden on him and caused him substantial stress.

71 In setting a penalty the Court should 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] and [701] respectively that:

The task of a court is to assess the relative seriousness of the offender’s particular offence in relation to a worst case for which the maximum penalty is provided…

..the more serious the lasting environmental harm involved the more serious the offence and, ordinarily, the higher the penalty.

72 The increase in the maximum penalty from $120,000 to $250,000 for individuals in May 2006 should not result in a commensurate automatic increase in penalties of over 50 per cent but does reflect a legislative intention to increase penalty levels substantially; Environmental Protection Authority v Nalco Australia Pty Ltd [2007] NSWLEC 831 at [28] referring to R v Slattery (1996) 90 A Crim R 519 at 524. The relative criminality must be considered in relation to the worst case for which the maximum penalty is provided; Environmental Protection Authority v Timber Industries Ltd [2001] NSWLEC 25 approved in Cabonne Shire Council vEnvironmental Protection Authority (2001) 115 LGERA 304 at [37].

General deterrence

73 Section 3A(b) of the CSP Act states that one of the purposes for a court in imposing a sentence is to prevent crime by deterring offenders. Sentences imposed in relation to environmental offences must embrace powerful considerations of general deterrence: see Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 per Badgery-Parker J at 367. In Axer, Mahoney J stated at 359:

The quantum of the fines which the legislation allows to be imposed has no doubt been fixed not merely to indicate the seriousness with which such pollution is regarded but also to deter those engaged in such activities and to procure that they will take the precautions necessary to ensure that it does not occur.

74 The Prosecutor submitted that the objects of the POEO Act require a substantial sentence to punish the Defendant, to deter others and to encourage full compliance with the Act, per Camilleri’s Stock Feeds Pty Ltd per Kirby J at 701. The importance of deterrence in environmental offences was discussed in Bentley v BGP Properties (2006) 145 LGERA 234 at [139]-[141] and in relation to the application of pesticides in Environment Protection Authority v Williams [2006] NSWLEC 722.

75 There is also a need to consider specific deterrence, per Axer Mahoney JA at 359 to 360. The Defendant operates a business using toxic chemicals for commercial gain. Any penalty must reinforce the need to conduct his business so as not to cause pollution, see Environment Protection Authority v Colenden [2007] NSWLEC 289 at [30] and Environment Protection Authority v Cargill Australia Ltd [2007] NSWLEC 337 at [36].

76 I accept that general deterrence is an important consideration in relation to sentencing in these circumstances where the Defendant is engaged in a commercial operation as a pest controller. As it is his first offence after 34 years working in such a business, he has expressed remorse and will take care to ensure there is no further occurrence, I do not consider that he is likely to re-offend within the context identified in Veen v The Queen [No. 2] (1988) 164 CLR 465. At 477 the majority judgment of Mason CJ, Brennan, Dawson and Toohey JJ stated that past criminal behaviour is relevant in sentencing:

to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law .

77 I accept his submissions that he has found the prosecution a salutary experience. The Prosecutor has referred to Colenden and Cargill Australia (par 75) to support its submission that specific deterrence is necessary where a defendant is engaged in commercial activities involving the use of chemicals which can harm the environment. The defendants in both matters were companies. Each case must be considered on its facts and in this case concerning an individual defendant the circumstances do not suggest that specific deterrence is warranted.

Proportionality

78 An appropriate sentence is to be determined by considering the gravity of the offence per Hoare v R (1989) 167 CLR 348 at 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ):

… a basic principle of sentencing law is that a sentence…imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances (see Veen v. The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465, at pp 472, 485-486, 490-491, 496).

Evenhandedness

79 The principle of evenhandedness requires that the Court consider if there is any sentencing pattern for like offences in order to determine a consistent approach to penalty. This principle must always be applied subject to the particular circumstances of the case before the Court.

80 In Environment Protection Authority v Brazel (No 3) (2002) 121 LGERA 156 the defendant was found guilty of an offence under s 120 but Talbot J dismissed the charge pursuant to s 10 of the CSP Act. The employee of the defendant placed pesticide in a position where it fell and spilt into a nearby drain. The pesticide contained Bifenthrin and another highly toxic chemical. The harm caused included environmental degradation of the street gutter and associated drainage works. Further harm was avoided by the defendant’s cooperation and prompt and efficient action in containing the spread and diluting it before it reached any sensitive waters. Although the offence was described as not trivial, the escape of the pesticide was not foreseeable and the defendant acted reasonably at all times. In applying s 10, Talbot J noted the defendant’s impeccable character, the absence of previous convictions and financial statements evidencing a small family business and the defendant’s modest means. The defendant was ordered to pay the prosecutor’s costs.

81 In Environment Protection Authority v Jolly’s Pest Control Pty Ltd [2003] NSWLEC 398 the defendant pleaded guilty to an offence under s 120. A pesticide including Bifenthrin was washed into a stormwater drain after the defendant had sprayed a site. The stormwater entry point was underneath the vehicle and trailer belonging to the defendant. The defendant did not realise this. The liquid was pumped out of the drain with the cooperation of the Environment Protection Authority (the EPA) and the defendant. Cowdroy J found that the defendant could have taken measures to avoid the offence involving properly surveying and bunding the site. The potential for harm was high because without pumping high concentrations of toxic pesticide would have entered a river. No actual harm occurred. The likely harm was reasonably foreseeable and the defendant had control over the incident. Consideration was given to the defendant’s early guilty plea, the absence of prior convictions and limited financial means. A penalty of $7,500 was imposed. The maximum penalty at the time was $120,000.

82 Fairfield City Council v Hong Song Ngo [2008] NSWLEC 200 is the only case that has imposed a penalty for offences under s 120 of the POEO Act since the maximum penalty for an individual was raised from $120,000 to $250,000 in 2006. In this case the defendant was instructed by his employer to wash the inside of a garbage truck on a number of occasions with a fire hose and tip the wastewater remaining in the truck into a stormwater drain. The wastewater included solid matter and food waste left over from the rubbish lawfully tipped elsewhere. The offences caused actual harm to the stormwater drainage system by introducing wastewater and some solids. The defendant did not know the acts were wrong as he assumed his manager had obtained the approvals required. Jagot J considered the defendant’s limited financial means, his limited bargaining power in the relationship with his employer, his good character, expression of remorse and the unlikeness of further offences. Jagot J did not make a s 10 order as weight had to be given to the POEO Act’s objects of adequate punishment, deterrence of others, protection of the community and denunciation of the defendant’s conduct. A penalty of $22,500 was imposed.

83 This matter is more serious than Brazel (No 3) and Jolly’s Pest Control given the greater environmental harm. The penalty impose in Ngo of $22,500 reflects in part the greater maximum penalty now in place since May 2006 for this kind of offence.

Mitigating factors

84 A number of mitigating factors should be taken into account to reduce any penalty, as provided for in s 21A(3) of the CSP Act.

Guilty plea s 21A(3)(k), 22 CSP Act

85 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 CSP Act in the range of 10-25 per cent: R v Thomson; R v Houlton (2000) 49 NSWLR 383; R v Sharma (2002) 54 NSWLR 300. The Prosecutor accepts that there has been a guilty plea at the earliest opportunity. There should be a large discount on this basis.

Remorse (s 21A(3)(i) CSP Act)

86 The Defendant expressed remorse in his affidavit and has pleaded guilty. I accept that the Defendant is very remorseful.

87 The Defendant did cooperate with the investigation.

No prior convictions - s21A(3)(e)

88 The Defendant has no prior convictions having been in the pest control business for 34 years. He started working with his father in the same company when he was 13 or 14 years of age.

Means of the Defendant to pay

89 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.

90 The Defendant is 47, and conducts the business in partnership with his wife. He employs his son. The Defendant submitted that he has very limited means to pay a substantial fine in view of his financial circumstances. He has provided these in considerable detail to the Court. In order to pay the expenses he is aware of which includes the Prosecutor’s costs ($23,000) and investigation expenses ($12,000) and his own legal costs, he will have to sell one of the properties he was purchasing as part of his and his wife’s superannuation planning. They do not have any other assets apart from those identified. According to his affidavit he has about $100 per month available to pay off debts until he can sell this property. He stated in oral evidence that the market for real estate in Mullumbimby is not good at present. He employs his son and is concerned that he may have to terminate his employment if the business cannot sustain that salary. A substantial penalty will severely strain his financial resources.

91 In written submissions on penalty, the Prosecutor stated at par 62 and 63:

Once a determination has been made that a fine should be imposed, the correct procedure in assessing the appropriate amount of the fine is to determine it by reference to the gravity of the offence for which it is imposed. If the Court is satisfied that the offender would be unable to pay the amount determined it may reduce it to take account of the offender’s means and impecuniosity ( R v Rahme (1989) 43 A Crim R 81 (CCA) at 87)
Where the gravity of the offending is serious, a lack of a capacity to pay a fine is not the most important factor. The most important factor is the seriousness of the offence and the need for general and individual deterrence and the need for punishment. A small or nominal fine would not satisfy the element of deterrence, let alone punishment ( EPA v Capdate Pty Ltd at 354).

92 I accept the Prosecutor’s submission in relation to the application of R v Rahme (1989) 43 A Crim R 81. I will take into account the Defendant’s limited means to pay given the impact a substantial fine will have on his long term financial security and that of his wife in light of the approach in Rahme.

93 Part 8.3 of the POEO Act deals with orders that the Court may make in connection with offences under the Act. Orders may be made under this Part in addition to or in substitute of any penalty that may be imposed or any other action that may be taken in relation to the offence (s 244). Section 250 provides a list of alternative orders that the Court may make. Section 250(1)(b) provides:

(1) Orders
The court may do any one or more of the following:
…
(b) order the offender to take specified action to notify specified persons or classes of persons of the offence (including the circumstances of the offence) and its environmental and other consequences and of any orders made against the person (including, for example, the publication in an annual report or any other notice to shareholders of a company or the notification of persons aggrieved or affected by the offender’s conduct), …

94 The Defendant submitted that there is utility in making an order under s 250(1)(b) as an alternative to a penalty or in addition to a penalty in the sentencing of the Defendant. General deterrence by public education can be achieved by requiring the Defendant to notify specified persons of the particulars of this offence. The purposes of orders under s 250 include public and private education and the section recognises that particular orders may serve the purposes of sentencing more effectively than imposing a fine.

95 The Defendant submitted that he carried out his work to the best of his professional ability, in the context of 34 years of experience, in accordance with training by Ensystex Australasia and obeying all available warnings on the APVMA approved label and MSDS. The Defendant submitted that the approved label and MSDS do not give adequate warning about the use of the product near waterways and do not give adequate warning or guidance on the need for the product to dry prior to rainfall. It is the Prosecutor’s admission that the incident could probably have been avoided had measures they submit the Defendant should have taken to prevent the harm been included on the approved label or MSDS. Similarly if these measures are contained on the approved label or the MSDS it will be far less likely that future users of Bifenthrin will be the agent of a similar incident.

96 The label on Country Bifenthrin Aqua is approved by the Australian Pesticides and Veterinary Medicines Authority (APVMA). APVMA is an Australian government authority responsible for the assessment, registration and regulation of pesticides. Its role is to independently evaluate the safety and performance of chemical products. The APVMA publishes a “Report of Adverse Experiences” annually. Anyone can submit an adverse agricultural chemical report. Outcomes of the reporting program include registration amendments such as label changes and education and publicity directed towards particular professions and relevant communities. The Defendant proposes the Court make an order for the lodgement of an adverse agricultural chemical report which would include this judgment in detailing the incident.

97 The Australian Environmental Pest Managers Association Inc (AEPMA) is a voluntary association of pest exterminators in Australia. The Defendant submitted that it would be appropriate for notification of the incident be made under a s 250(1)(b). It is anticipated a public education purpose would be served via AEPMA publications and seminars. Ensystex Australasia and the manufacturer of Bifenthrin Aqua should similarly be notified for the purposes of educating about use of the product. Granada could also be notified for the purpose of future protection of the site.

98 The order sought by the Defendant is:

The defendant at its expense and pursuant to s 250(1)(b) of the Protection of the Environment Operations Act 1997 shall within 14 days of the date of these orders:

Which letter shall be substantially in the form of “Annexure A” to this order. (not included here)

99 The Prosecutor submitted that the Defendant’s proposal, if sought in lieu of a penalty, is inappropriate and inadequate because general and specific deterrence are not provided for and the proposal does not address the gravity of the offence given the actual harm caused. The Prosecutor relied on its submissions made during the course of the hearing as to the need for ensuring general and specific deterrence. The Prosecutor considered that an order under s 250(1)(b) if could be made in addition to a significant penalty.

100 The Prosecutor submitted that the order proposed does not create any obligation on the informed parties to act on the information provided. The Prosecutor also submitted that the APVMA has already been made aware of the incident through the EPA and cooperation between the two agencies is ongoing.

101 The Prosecutor rejected the submission of the Defendant that he acted appropriately given the instructions on the label and his extensive experience in pest management. The MSDS is sufficient to have indicated to the Defendant that the product should not be used near water or that a buffer zone ought to have been created. The Defendant did not fully comply with the label and MSDS because both required that the user not contaminate waterways.

102 I have broad discretion under s 250 of the POEO Act to determine whether I should make alternative orders with or without imposing a penalty. The Defendant has proposed that an order be made under s 250(1)(b) in the form identified above at par 98. This is opposed by the Prosecutor because it argued there was a failure to comply with the approved label and MSDS, both of which say there should be no contamination in the water. That submission does not respond to the Defendant’s evidence that if Bifenthrin is sprayed and dries it is apparently safe to use near water. As already identified at par 48, based on the circumstances before me there appears to be inadequate information on the approved label and in the MSDS and in any training about safe drying times for Bifenthrin when applied in the open. If a no spray buffer zone around water bodies is necessary then appropriate wording on the approved label and in the MSDS and changes in the training in the use of Bifenthrin may also be necessary. Given this context I consider the proposed order should be made in some form. Before finalising the form of the order I will ask the parties if any refinement is needed.

Costs

103 The Defendant has agreed to pay the Prosecutor’s legal costs of $23,000 and investigation expenses of $12,000.

104 In EPA v Barnes [2006] NSWCCA 246 the Court of Criminal Appeal recognised that the amount of costs could be taken into account when setting the level of penalty. After the defendant agreed to pay the prosecutor’s costs of more than $15,000, the primary judge concluded that a much higher penalty would have been imposed had the costs not been so great. The Court of Criminal Appeal recognised that it was appropriate to take the amount of costs into account when setting a penalty because the costs “were an important aspect of the punishment of Mr Barnes” (Kirby J at [78]).

105 The Defendant has provided a lot of information about his financial position which I must consider in light of s 6 of the Fines Act requiring a court to take the means of an accused into account so far as it can. That evidence supports the Defendant’s position that he has limited means to pay a substantial fine. His long term financial plans for retirement will be severely disrupted as he will have to sell one of his two investment properties and he does not have any other superannuation funding. He will also be selling at a difficult time in the real estate market in Mullumbimby.

106 As I intend to make a particular order under s 250(1)(b), and taking into account that the imposition of a substantial penalty will have a significant financial impact on the Defendant, his early plea of guilty, his efforts to clean up contaminated sediment in the creek, his substantial good character and community service as demonstrated by the reference of Mr Wilcox, Operations Officer of the Far North Coast Rural Fire Service and his liability for substantial legal and investigative costs of the Prosecutor, a smaller fine is appropriate. I will impose a penalty of $18,000.

Orders

107 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 $18,000 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 of $23,000.

4. The Defendant must pay the Prosecutor’s investigative costs of $12,000 pursuant to s 248 of the POEO Act.

Addendum
The Court makes the attached order pursuant to s 250(1)(b) of the POEO Act.

ORDER PURSUANT TO SECTION 250(1)(b)

1. The defendant at its expense and pursuant to s 250(1)(b) of the Protection of the Environment Operations Act 1997 shall within 14 days of the date of these orders:

(i) Lodge an Adverse Experience Reporting Form with the Australian Pesticides and Veterinary Medicines Authority (APVMA). The form shall:

a. be completed fully and properly as the form requires,

b. attach a copy of the Judgment in this matter,

c. be attached to a letter substantially in the form of Annexure “A” to this Order;

(ii) Cause to be sent by registered post or delivered by personal service a letter, substantially in the form of “Annexure A” to this Order, to each of:

1. the Australian Environmental Pest Managers Association;

2. Ensystex Australasia;

3. A & C Rural Pty Ltd

Annexure A

On 31 March 2009 I Harold Mark Ross was convicted by the Land and Environment Court for an offence under s.120 of the Protection of the Environment Operations Act 1997. I had pleaded guilty to the offence.

Details of the circumstances are contained in the judgment. A copy of the Court’s judgment of 31 March 2009 is attached.

The court made the following orders:

1. The defendant is convicted of the offence with which he is charged;

2. The Defendant is fined the sum of $18,000 to be paid to the Registrar within 28 days of today’s date;

3. The Defendant must pay the Prosecutor’s costs of the proceedings of $23,000; and

4. The Defendant must pay the Prosecutor’s investigative costs of $12,000 pursuant to s248 of the POEO Act.

For reasons outlined in paragraphs 48 and 102 of the judgment, the Court also issued an order under Section 250(1)(b).

This letter is sent [in the case of the APVMA the attached Adverse Experience Reporting Form is lodged] in compliance with the court’s order so to do.

The purpose of the court making the order requiring notification [in the case of the APVMA requiring lodgement of the Form] to you is to:

1. instigate the prospect for review by the APVMA of the APVMA Approved label for “Country Bifenthrin Aqua” produced by A & C Rural Pty Ltd and other products by any manufacturer containing Bifenthrin or other pesticides capable of killing aquatic organisms to contain appropriate warning(s) and recommendation(s) for use near such waterways and before rainfall;

2. instigate the prospect for review of the Material Safety Data Sheet for “Country Bifenthrin Aqua” produced by A & C Rural Pty Ltd (and other products by any manufacturer containing Bifenthrin or other pesticides capable of killing aquatic organisms) to contain appropriate warning(s) and recommendation(s) for use near such waterways;

3. promote manufacturers, training organisations and professional bodies to review warnings, advice and guidance given in labels, literature (including websites) and education programmes, so as to ensure that such advice and guidance accords with best practice procedures for use of pesticides near waterways. Education as to best practice would reduce or eliminate the prospect of an event such as that which led to my conviction occurring with other users or operators of such pesticides.