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Environment Protection Authority v Ross

Environment Protection Authority v Ross

Case [2009] NSWLEC 36 31 March 2009

Environmental Offence

Pollution

Harm to the Environment

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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)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Environment Protection Authority v Ross

Details

AGLC: Environment Protection Authority v Ross [2009] NSWLEC 36
Case: [2009] NSWLEC 36
Decision Date: 31 March 2009

CaseChat Overview and Summary

In this case, the defendant Harold Mark Ross was charged with an offence under s 120 of the Protection of the Environment Operations Act 1997 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. The defendant pleaded guilty and was being sentenced.

The Land and Environment Court found that the defendant's actions had resulted in serious environmental harm, including the death of large numbers of aquatic species. The court considered the relevant objective and subjective circumstances of the offence, including the extent of the harm caused, the measures that could have been taken to prevent or mitigate the harm, and the extent to which the defendant could reasonably have foreseen the harm. The court found that the defendant was highly culpable, as he did not take sufficient precautions to prevent the pesticide from entering the waters, and that the environmental harm caused was reasonably serious.

The court rejected the defendant's argument that s 10 of the Crimes (Sentencing Procedure) Act 1999 should be applied, as the offence was not trivial and could have been easily avoided. The court also considered sentencing principles, including general and specific deterrence, proportionality, and evenhandedness, and found that a penalty should be imposed to punish the defendant, deter others, and encourage compliance with the Act.

In setting the penalty, the court considered the defendant's limited means to pay a substantial fine, his early guilty plea, his remorse, and his efforts to clean up the contaminated sediment in the creek. The court imposed a penalty of $18,000, to be paid within 28 days, and ordered the defendant to pay the prosecutor's legal costs of $23,000 and investigative costs of $12,000.

In addition, the court made an order under s 250(1)(b) of the POEO Act, requiring the defendant to notify specified persons of the offence and its environmental consequences, and to lodge an Adverse Experience Reporting Form with the Australian Pesticides and Veterinary Medicines Authority. The purpose of the order was to promote public and private education and to encourage manufacturers, training organisations, and professional bodies to review warnings, advice, and guidance given in labels, literature, and education programmes, so as to ensure that such advice and guidance accords with best practice procedures for the use of pesticides near waterways.

Orders