Environment Protection Authority v Taylor (No 4) - [2002] NSWLEC 59

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Taylor [No. 4] [2002] NSWLEC 59

PARTIES:
PROSECUTOR:
Environment Protection Authority
DEFENDANT:
Rodney Scott Taylor

FILE NUMBER(S): 50093 of 1998; 50094 of 1998 and 50095 of 1998

CORAM: Lloyd J

KEY ISSUES: Environmental Offences :- penalty - mitigation
Costs:- criminal proceedings - summary prosecution - principles

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 10
Fines Act 1996 s 6
Land and Environment Court Act 1979 s 52 and s 53
Protection of the Environment Administration Act 1991 s 5
Pesticides Act 1978 s 33(1)

CASES CITED: Barton v Berman [1980] 1 NSWLR 63;
Cammilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683;
Clyne v Wringley [1980] 1 NSWLR 599;
Environment Protection Authority v Cooke (1996) 90 LGERA 61;
Environment Protection Authority v Taylor [No. 2] [2001] NSWLEC 114;
Environment Protection Authority v Taylor [No. 3] [2001] NSWLEC 115;
Latoudis v Casey (1990) 170 CLR 534;
R v Madden (1995) 85 A Crim R 367

DATES OF HEARING: 18/03/2002 and 19/03/2002

DATE OF JUDGMENT:
04/30/2002

LEGAL REPRESENTATIVES:
PROSECUTOR:
Mr D A Buchanan SC
SOLICITORS:
Stephen Garrett
DEFENDANT:
Ms V M Heath (barrister)
SOLICITORS:
Sheridan & Stubbs

JUDGMENT:

IN THE LAND AND Matter Nos.: 50093/50094/50095 of 1998
ENVIRONMENT COURT Coram: Lloyd J
OF NEW SOUTH WALES Decision date: 30 April 2002

Environment Protection Authority

Prosecutor

Rodney Scott Taylor

Defendant

REASONS FOR JUDGMENT [No. 4]

1. On 1 May 2001 I found the defendant guilty of three offences against s 33 of the Pesticides Act 1978 (Environment Protection Authority v Taylor [No. 2] [2001] NSWLEC 114, Environment Protection Authority v Taylor [No. 3] [2001] NSWLEC 115)

2. The first offence (in summons No. 50093 of 1998) is that on or about 4 June 1997 at No. 73 Tozer Street, West Kempsey the defendant committed an offence against s 33(1) of the Pesticides Act in that, not being a person required by an order under s 21 of the Act or a person authorised under s 25 of the Act, he did in using a registered pesticide, carelessly disregard an instruction on a label affixed to a container in which he knew or had reasonable cause to suspect the registered pesticide to have been, there being a registered pesticide label for an approved container for the pesticide that contains that instruction. The particular instruction which is said to have been beached was “Do not allow contact with mattresses, bed clothes or clothing”.

3. The second offence (in summons No. 50094 of 1998) is the commission of a similar breach of the same provision but against a different instruction, namely, “Do not contaminate utensils or surfaces where food may be prepared or stored”.

4. The third offence (in summons No. 50095 of 1998) is again the commission of an offence against the same provision but against a third instruction, namely, “Keep away from cooking and eating…

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.

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Details

Case: [2002] NSWLEC 59
Decision Date: 04/30/2002

CaseChat Overview and Summary

The case of Environment Protection Authority v Taylor [No. 4] involved the Environment Protection Authority prosecuting Rodney Scott Taylor for three offences under the Pesticides Act 1978. The offences related to the careless disregard of instructions on a pesticide label, leading to significant contamination in a residential property. The court previously found Taylor guilty of these offences. The current hearing focused on determining the appropriate penalty and whether costs should be awarded to the prosecutor.

The key legal issues were the appropriate penalty for the offences considering Taylor's mental condition and means, and the applicability of costs in criminal proceedings. The court considered Taylor's chronic amnestic disorder resulting from a prior accident, which impaired his ability to understand and follow pesticide instructions. Despite this, the court found that Taylor's actions demonstrated extreme carelessness. The court also deliberated on the principles of sentencing and the deterrent effect of penalties for environmental offences.

Regarding costs, the court noted the general principle that costs should follow the event in both civil and criminal cases, aiming to compensate the successful party. The prosecutor sought over $70,000 in costs, which the defendant argued was disproportionate and should consider his limited means. The court concluded that while the defendant's means were relevant for fines, they did not preclude an order for costs. The court found no disentitling conduct by the prosecutor and upheld the principle that a successful party, in the absence of special circumstances, reasonably expects to be indemnified for incurred costs.

The court ordered Taylor to pay specific penalties for each offence, considering the principle of totality due to the connected nature of the charges. It also ordered Taylor to pay the prosecutor's costs, despite his limited means, emphasizing the importance of prosecuting environmental offences to protect public health and the environment.

Orders