Environment Protection Authority v Warwick Ronald McInnes (No 2)

[2020] NSWLEC 147

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Environment Protection Authority v Warwick Ronald McInnes (No 2) [2020] NSWLEC 147

Hearing dates:

24 September 2020

Date of orders:

30 October 2020

Decision date:

30 October 2020

Jurisdiction:

Class 5

Before:

Duggan J

Decision:

See paragraph 92

Catchwords:

SENTENCING – s 10(1)(a) Pesticides Act 1999 – objective seriousness – strict liability offence – s 10 Crimes (Sentencing Procedure) Act 1999 – legal costs – capacity to pay

Legislation Cited:

Agricultural and Veterinary Chemicals Code

Crimes (Sentencing Procedure) Act 1999

Criminal Procedure Act 1986

Fines Act 1996

Pesticides Act 1999

Victims Rights and Support Act 2013

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 Baiada Poultry Pty Ltd (2008) 163 LGERA 71

Environment Protection Authority v Barnes [2006] NSWCCA 246

Environment Protection Authority v Sydney Water Corp [2019] NSWLEC 100

Environment Protection Authority v Warwick Ronald McInnes [2020] NSWLEC 37

Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299

Markarian v The Queen (2005) 228 CLR 357

Merrick v R [2017] NSWCCA 264

Muldrock v The Queen (2011) 244 CLR 120

R v Olbrich (1999) 199 CLR 270

R v Visconti [1982] 2 NSWLR 104

R v Way (2004) 60 NSWLR 168

Ryan v The Queen (2001) 206 CLR 267

Yang v The Queen (2012) 219 A Crim R 550

Category:

Sentence

Parties:

Environment Protection Authority (Prosecutor)
Warwick Ronald McInnes (Defendant)

Representation:

Counsel:
Ms G Lewer (Prosecutor)
Mr W McInnes in person (Defendant)

Solicitors:
Office of the Environment Protection Authority (Prosecutor)
N/A (Defendant)

File Number(s):

2018/266434

Publication restriction:

No

Judgment

1. The Defendant entered a plea of not guilty to two charges. Those proceedings were heard and judgment was delivered In Environment Protection Authority v Warwick Ronald McInnes [2020] NSWLEC 37 (McInnes (No 1)). The charge relating to the offence under s 10(1)(a) of the Pesticides Act 1999 was proven and the other charge was dismissed. Mr Warwick Ronald McInnes (the Defendant) is now before the Court for sentence on the charge that on or about 10 August 2017 he committed an offence against s 10(1)(a) in that he used a pesticide in a manner that injured another person.

Facts

2. The facts at [4]-[21] and the relevant findings at [40]-[54] as set out in McInnes (No 1) are relied upon but not repeated here.

Evidence

3. The evidence on sentence comprised the evidence in McInnes (No 1) together with a number of affidavits and statements filed by the Prosecutor, and an affidavit and the oral evidence of the Defendant. The gravamen of the evidence is summarised below.

Julie Terry – statement filed 3 July 2020

4. Julie Terry is the mother of Damien Terry. She provided a statement on behalf of Mr Terry as he is unable to do so himself due to his autism and global developmental delay. The Prosecutor tendered Mrs Terry’s statement to which the Defendant did not object.

5. Mrs Terry explains that Mr Terry’s autism and developmental delay means that he “operates as a toddler”; he requires full time care; is non-verbal; and finds it difficult to make his needs known given his limited capacity to communicate.

6. For context, prior to the incident, Coca Cola (Coke) had been one of Mr Terry’s favourite beverages; his parents would occasionally buy it for him as a treat. If the family had visitors, they had to “guard” their drinks as Mr Terry was prone to drink them if they had Coke in them.

7. Upon finding the Coke bottle in the bathroom on the day of the incident, Mr Terry would have had no conception that a Coke bottle could contain anything other than Coke. He is incapable of understanding the danger of drinking something that is not provided for him and would not have been able to resist drinking one of his favourite drinks.

8. Soon after returning from the bathroom Mr Terry began vomiting a green colour, indicating that he had ingested something not provided for by his carers. It took over an hour to take Mr Terry to hospital on an ambulance as he was unfamiliar with the transfer process and his autism makes it difficult to adjust to change.

9. Unsure of what substance Mr Terry ingested, the hospital staff were informed that it was likely a non-toxic line-marking paint. As the vomiting eased following treatment with antiemetics, Mr Terry was discharged from hospital that same day.

10. However, later that day Mr Terry began vomiting again and his parents decided to take him back to hospital as his condition worsened. By this stage one of Mr Terry’s carers had contacted the Defendant to ask about the contents of the Coke bottle. The Defendant stated that he thought it was Triquat. The carer then consulted the Poisons Information Centre who, upon description, suggested it was Paraquat and stated that it was critical for Mr Terry to return to hospital.

11. At the hospital, the attending doctor informed Mr Terry’s family that the substance that Mr Terry had ingested was in fact lethal and “people don’t survive from ingesting it. It takes 10-14ml to kill an adult”. Mr Terry’s family were told that he had possibly hours to live. In response, blood tests had to be performed and fluids administered. However, due to his fear of needles, Mr Terry had to first be sedated, a process requiring eight adults to hold him down, which led to Mr Terry being frightened and upset.

12. Mr Terry’s family was informed that there was no antidote for poisoning by this pesticide. Mr Terry was re-admitted to hospital and moved to the ICU. Facing the prospect that Mr Terry may die, his siblings were informed and immediately arranged to travel from Perth and Canada, unsure whether they would return in time.

13. Mr Terry’s kidneys began to fail two days after the incident. A dialysis machine was placed outside his ICU room as the doctors anticipated complete kidney failure.

14. Mr Terry’s mouth, lips and anus showed significant ulceration from the chemical burn and his skin came away upon contact with a towel. Mr Terry refused to take anything orally, likely from the pain of the chemical burns.

15. Over the next few days Mr Terry’s family waited in distress, anticipating a slow death. He was unable to take one of his usual medications as it did not have an intravenous alternative. The lack of usual medications caused side effects. Mr Terry’s lungs were also impacted and a high-level dose of steroids was required in response. During this period Mr Terry continued to experience high levels of pain. He was becoming erratic and agitated each day, becoming aggressive with family members. It was difficult to encourage oral ingestion. Once he resumed eating, medication had to be ground up and hidden in food.

16. On 17 August 2020, Mr Terry was moved to the surgical ward. During the next few days Mr Terry became agitated as he continued to experience high levels of pain due to the chemical burns and was distressed as he continued to have difficulty with medication being administered by injections. The doctors informed the family that there may be damage to Mr Terry’s gastrointestinal system and that he would need to be monitored for months as Paraquat could be stored in fatty tissue and released into the body again.

17. On 28 August 2017, Mr Terry was released from the hospital and taken home, marking the total length of his hospital stay as 18 days, the first 7 of those spent in the ICU. At home his breathing and oxygen saturation levels needed to be monitored. He was required to take 22 tablets and one capsule in the morning, one tablet at 2pm, and 12 tablets at night.

18. Since the incident Mr Terry’s epileptic seizures have increased in frequency and intensity. His family continues to express concern for his long-term health.

Gina Georgiou

19. Gina Georgiou is the General Counsel of Aruma Services and her affidavit sworn 8 July 2020 was read. She states that Mr Terry resided in a group home prior to the incident. After the incident, Mr Terry was initially released from hospital into the care of his parents at his family home. Commencing 9 September 2017, he had a period of transition of returning to the group home for short periods. He would spend the days at the group home and return to his family home during the evenings to stay overnight.

20. During the transition period Mr Terry experienced an increase in seizures witnessed by the group home staff. Prior to the incident, Mr Terry experienced seven seizures in the five-month period between 1 February 2017 and 8 July 2017. Following the incident, Mr Terry experienced three seizures in the three-month period between 1 October 2017 to 2 January 2018. Mr Terry’s family also noted an increase in seizures he had at home following the incident. Medical advice provided to Mr Terry stated that the steroids administered for the prevention of lung damage may have contributed to this increase in seizures.

Warwick Ronald McInnes

21. The Defendant swore an affidavit, also gave oral evidence and was cross-examined. He tendered a number of documents including financial records and character references. Relevant components of this evidence will be referenced below.

Sentencing principles

22. Section 3A of the Crimes (Sentencing Procedure) Act 1999 (CSP Act) identifies the purposes of sentencing as being:

3A   Purposes of sentencing

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.

A sentence is to be determined taking into account these stated purposes of sentencing.

23. The determination of an appropriate sentence is to be undertaken bearing in mind that:

A sentence should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances: Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 at [162]. (citations omitted)

24. This concept of a proportional sentence indicates that a significant factor to be considered in sentencing is the objective seriousness of the offence. The objective seriousness of the offence fixes both the upper and lower limits of proportionate punishment: the upper, as a sentence should never exceed that which can be identified as proportionate to the gravity of the particular crime; and the lower, as an allowance for the subjective considerations can never produce a punishment that does not reflect the objective seriousness of the offence: Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299 at [139]-[140].

25. The relevant offence arises under the provisions of the Pesticides Act that, for the purposes of the consideration of sentence in these proceedings, relevantly includes as its stated objects:

3   Objects of this Act

The objects of this Act are as follows:

(a)   to promote the protection of human health, the environment, property and trade in relation to the use of pesticides, having regard to the principles of ecologically sustainable development within the meaning of the Protection of the Environment Administration Act 1991,

(b)   to minimise risks to human health, the environment, property and trade,

(c)   to promote collaborative and integrated policies in relation to the use of pesticides,

(d)   to establish a legislative framework to regulate the use of pesticides.

These objects reinforce the public protective nature of the legislative regime, including (as is relevant in these proceedings) the protection of human health and the minimisation of the risks of pesticides to human health.

26. The offence is a strict liability offence and it carries a maximum penalty for an individual of $60,000: s 10(1). The strict liability nature of the offence and the quantum of the maximum penalty are indicators of the public expression by Parliament of the seriousness of the offence and the gravity of the offences as perceived by the community: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359; Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698.

Statutory matters required to be taken into account in sentencing

27. Section 109 of the Pesticides Act dictates the following matters, where relevant, are to be taken into account in imposing a penalty:

109   Matters to be considered in imposing penalty

(1)   In imposing a penalty for an offence under this Act or the regulations, the court is to take into consideration the following (so far as they are relevant):

(a)   the extent of the injury, damage or harm caused or likely to be caused by the commission of the offence,

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

(c)   the extent to which the person who committed the offence could reasonably have foreseen the injury, damage or harm caused or likely to be caused by the commission of the offence,

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

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

(f)   in any case where the defendant is a corporation, the type of corporation concerned (eg whether it is a sole trader or a family-owned business),

(g)   whether the person who committed the offence complied with any relevant pesticide code of practice.

(2)   The court may take into consideration other matters that it considers relevant.

28. In the circumstances of this case, those factors, with the exception of s 109(1)(e) and (f), are relevant considerations.

29. In addition, for the purposes of sentencing in this matter the following factors as provided for in s 21A of the CSP Act are relevant:

21A   Aggravating, mitigating and other factors in sentencing

(1)   General In determining the appropriate sentence for an offence, the court is to take into account the following matters–

(a)   the aggravating factors referred to in subsection (2) that are relevant and known to the court,

(b)   the mitigating factors referred to in subsection (3) that are relevant and known to the court,

(c)   any other objective or subjective factor that affects the relative seriousness of the offence.

The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.

(2)   Aggravating factors   The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows–

…

(d)   the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences),

…

(g)   the injury, emotional harm, loss or damage caused by the offence was substantial,

…

(i)   the offence was committed without regard for public safety,

(ib)   the offence involved a grave risk of death to another person or persons,

…

(l)   the victim was vulnerable, for example, because the victim was very young or very old or had a disability, because of the geographical isolation of the victim or because of the victim’s occupation (such as a person working at a hospital (other than a health worker), taxi driver, bus driver or other public transport worker, bank teller or service station attendant),

…

The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.

(3)   Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows–

…

(b)   the offence was not part of a planned or organised criminal activity,

…

(e)   the offender does not have any record (or any significant record) of previous convictions,

(f)   the offender was a person of good character,

(g)   the offender is unlikely to re-offend,

(h)   the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise,

(i)   the remorse shown by the offender for the offence, but only if –

(i)   the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii)   the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),

…

(4)   The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.

(5)   The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence.

30. Where a Prosecutor contends that a particular sentencing consideration should be treated as an aggravating feature they must establish by evidence, beyond reasonable doubt, the presence of such aggravating factor. Where a Defendant contends for the presence of a mitigating factor in sentencing they must establish by evidence the presence of such factor on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27]; Environment Protection Authority v Sydney Water Corp [2019] NSWLEC 100 at [131].

Objective seriousness of the offence

31. In Muldrock v The Queen (2011) 244 CLR 120 at [27] the manner in which the objective seriousness of an offence is to be determined was described as:

The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending.

32. The objective seriousness of the offence is to be judged by two principal components: the precise acts or omissions of the offender; and, the consequences of those acts or omissions: Environment Protection Authority v Baiada Poultry Pty Ltd (2008) 163 LGERA 71 at [22].

33. In this case, the objective factors that are relevant to the objective seriousness, being the precise acts and omission of the offender and the consequence of such acts and omission, largely coincide with the mandatory considerations contained in s 109 of the Pesticides Act, which will be dealt with below.

The extent of the injury, damage or harm caused or likely to be caused by the commission of the offence

34. In this case, there was significant actual injury and harm caused to Mr Terry by the commission of the offence.

35. Mr Terry’s injuries were significant. The medical professionals who attended to him considered that it was likely that the ingestion of the pesticide would be fatal. Fortunately, Mr Terry did not die, however, he did suffer severe physical and mental trauma from the poisoning he sustained and the treatment he was required to endure. He continues to suffer the effects of the poisoning in his physical health and mental state.

36. The particular pesticide the subject of this charge was known to be extremely toxic. It was an agreed fact that the pesticide was decanted from a bottle that was required by the Agricultural and Veterinary Chemicals Code to be labelled with the cautionary statements:

1. DO NOT PUT IN DRINK BOTTLES

2. CAN KILL IF SWALLOWED

3. KEEP LOCKED UP

37. Contrary to such warnings the pesticide was decanted by the Defendant into a drink bottle, it was in the open in the disabled toilet and it was swallowed, and Mr Terry was at real risk of death as a consequence of the ingestion of the pesticide. Whilst the Defendant contended that the original bottle was degraded at the time of decanting the pesticide this does not take away from the inherent toxicity of the pesticide and the need to take care in the handling, use and storage of such substances.

37. The importance of avoiding storage of pesticides in drink bottles was identified in the Second Reading Speech of the Pesticides Bill 1999 in the New South Wales Legislative Assembly on 28 October 1999; it was clearly a known risk path for poisoning. The Honourable Bob Debus stated at page 2354:

It is important that pesticides are stored in a container that bears the registered label for the pesticide to prevent accidental misuse. There have been incidents when pesticide users have stored pesticide solutions in soft drink bottles. This has led to pesticide poisonings. Clause 16 establishes an offence which aims to prevent the storage of pesticides in unlabelled and unsafe containers, such as soft drink bottles, buckets and other unidentified or household containers. I see this as a very important provision in the bill because it should go some way towards preventing avoidable accidents and injury with toxic pesticides. (emphasis added)

39. The injury and harm occasioned to Mr Terry were significant. The inherent qualities of the particular pesticide made the risk of harm of the type suffered by Mr Terry virtually inevitable if ingested. The manner of storage in a drink bottle was a significant breach of the purpose and objects of the Pesticides Act. Objectively, the conduct that gave rise to this offence was very serious.

Reasons for committing the offence and state of mind of the offender

40. As this offence is one of strict liability there is no mental element that forms an element of the offence, that is, the offence can be proven even if the Defendant did not intend for the breach of the Act to occur. There has been some deliberation over whether the offender’s state of mind goes to the objective seriousness of the offence (as it is a matter relating to the offender) or a matter more generally available for consideration in sentencing independent from the determination of objective seriousness: Muldrock v The Queen (2011) 244 CLR 120; R v Way (2004) 60 NSWLR 168; Yang v The Queen (2012) 219 A Crim R 550.

41. The Defendant gave evidence that he does not know why he did not dispose of the pesticide at the time he decanted it into the Coke bottle. Nor does he assert that there was any necessary reason to retain the pesticide for use at the sports field. The reason for committing the offence is both an active action in decanting the pesticide into a Coke bottle and then a significant period of inaction in retaining and not disposing of the pesticide on the part of the Defendant.

42. The fact that the decanted pesticide was permitted to remain stored for a significant period of time in a drink bottle when it was not required for any use at the sports field indicates a lack of sufficient concern for the proper keeping of these dangerous substances. The failure to dispose of the pesticide was explained by the Defendant as likely him “being slack”. This does not diminish the significant failure in the storage of the pesticide in a drink bottle and in a public place.

43. As was observed at [69] of McInnes (No 1):

Having regard to the conduct of the Defendant in this matter it is apparent that the placement of the Pesticide into a Coke Bottle was extremely imprudent and contrary to the recommendations for the storage of pesticides and basic common sense. The Defendant has been prosecuted for those actions and, for the reasons outlined above, the offence of using (in this case by storing) pesticides so as to cause actual injury has been established…

this failure to properly store the pesticide is objectively serious.

The extent to which the person who committed the offence could reasonably have foreseen the injury, damage or harm caused or likely to be caused by the commission of the offence

44. It was reasonably foreseeable that if the pesticide was ingested it was likely to cause a life-threatening event. It was also reasonably foreseeable that the likelihood of ingestion was significantly increased if the pesticide was stored in a drink bottle.

45. Further, it was reasonably foreseeable that the likelihood of ingestion was also increased if the bottle containing the pesticide was not store appropriately. The clear warnings that were required to be carried on such pesticides at the date of the offence make it clear that placing such substances in drink bottles increases the risk of unintentional ingestion. Therefore, it was reasonably foreseeable that placing the pesticide in the drink bottle would not be an action that would minimise the risk to human health in accordance with the objects of the Pesticides Act. This failure demonstrates that the nature of the offending is serious in this respect.

46. However, in McInnes (No 1) at [88] I found that the Prosecutor had not discharged its evidentiary onus to prove beyond reasonable doubt that it was reasonably foreseeable that the disabled toilet would be accessed with an MLAK key. Therefore, the s 7 Charge relating to criminal negligence was dismissed. In this case, on the s 10 Charge, there is no element of the offence that requires proof of criminal negligence. However, the present offence as particularised, for which the Defendant is being sentenced, requires a determination of whether Mr Terry gaining access to the disabled toilet with an MLAK key and ingesting the inappropriately stored pesticide was reasonably foreseeable. As this is an aggravating consideration in sentence, either in determining objective seriousness, or more generally, for the same reasons identified in McInnes (No 1) at [69]-[88] the “causes that gave rise to the offence” could not have been foreseeable as the Defendant believed he had the only key to the disabled toilet and it was secure. Accordingly, this factor is not considered as part of the determination of objective seriousness.

The extent to which the person who committed the offence had control over the causes that gave rise to the offence

47. The Defendant had control over the decanting of the pesticide, the retention of the pesticide in a drink bottle and the placement and storage of the decanted pesticide in a public disabled toilet. It is these factors that constitute the causes that gave rise to this offence.

48. Whilst the Defendant did not have control over Mr Terry’s actions in entering the toilet and drinking the pesticide, that action would not have been available to Mr Terry if the pesticide had not been left in the disabled toilet at the time it was used by Mr Terry.

49. The inappropriate storage of the pesticide was the cause that gave rise to the offence and the storage of that pesticide in that manner was on the Defendant’s own admission actions taken by him alone. This factor also indicates that the offending conduct is objectively serious as it was in the Defendant’s hands to dispose of or store the pesticide in an appropriate manner.

Whether the person who committed the offence complied with any relevant pesticide code of practice

50. There was no evidence that the storage of the pesticide in the manner or location was in conformity with any relevant pesticide code of practice.

Conclusions on objective seriousness

51. The objective seriousness of the conduct in this case is at the higher end of the range of objective seriousness. The particular pesticide in this case was inherently toxic to humans and, therefore, warranted particular care in its storage. The packaging of the pesticide made it apparent that ingestion of the substance could cause death. Notwithstanding this toxicity, the substance was: decanted into a drink bottle; and retained for a significant period of time in a disabled toilet being an area generally designated for public use by vulnerable people, namely a disabled toilet at a public sports field.

52. The substance was consumed by Mr Terry who was, due to his autism, a vulnerable person.

53. It could hardly be imagined that such actions undertaken without any real regard for the obligations that fall to a person who has access to, and control of, substances such as pesticides with the grave and enduring consequences that occurred could be objectively considered anything other than a gravely serious breach.

Subjective circumstances of offender

Contrition and remorse

54. The Prosecutor submitted that expressions of regret by the Defendant were not a true indication of remorse. In particular, the Prosecutor submitted that the Defendant had never personally apologised to Mr Terry or his family and had not sought to provide any restitution to them for the harm caused. As a consequence, it was submitted that little weight should be given to expressions of remorse at this late stage of the process.

55. The Defendant did say, in his affidavit evidence, his oral evidence, and his submissions, that he was sorry for what had happened to Mr Terry. In particular at [3]-[5] of his affidavit he deposed:

First and foremost I would like to say to Damien and his family how sorry I am for this terrible incident. I understand that it has impacted severely on everyone’s life and it should not have happened. The experience has also left me devastated. While I believe everyone involved made mistakes, mine was not disposing of the Coke bottle with the pesticide in it immediately and I have been kicking myself the last three years.

I have learned that I should never take the risk of putting chemicals into unauthorised containers. Since the accident, I have cleared out the chemicals from my own workshop.

After the accident involving Damien, I have also resigned from the Committee and from working as the volunteer groundsman for both the Committee and the Club.

56. In his written submissions at [2]-[3] it was stated:

First of all, I would like to make a public apology to Damien and his family, if the Court allows this.

In terms of how sorry I am, the EPA have taken my statements out of context in their submissions (par 36) including:

It was the Police who said that this was an unfortunate accident, not me;

I did not say it was common sense to store pesticide in a coke bottle; I said it was common sense to pour the pesticide from a corroded container to what I had at the time;

I did not refuse to admit I had done anything wrong.

57. The Court gave the Defendant a number of opportunities to express his remorse and contrition for the criminal conduct. The Defendant variously gave evidence in terms, such as (by way of examples):

At T13 L49 – T14 L40:

Her Honour:   I think your daughter's asked you did you want to say you're sorry or not?  To remind you.

A:     Yeah.  Yeah.  Actually when I first got that phone call my first reaction was how did he get in there and the carer said, "I opened the door.  I let him in" and I went ‑ and then they asked about the Triquad ‑ no, sorry, they didn't ask about the Triquad, they said, "What was in the Coke bottle?" and I said ‑ and what I should have said was don't know anything about it, you know, and I wouldn't be here today, you know, well that's saying my opinion.  And what it is, I knew that ‑ that the kid was sick like you know, and the doctors need to know what sort of chemical it was and I told him, you know.  But he asked me how to spell it and I didn't know how to spell it and all that.  So I did arrange to have ‑ I said to ring up Shaun Roggers and Shaun told them what, what it was and they found out what it was and it might have improved his chances of survival which it probably did.  And that's about it.

Q:        Okay.

A:     Yeah, I don't know if I should be saying this now, I should let the prosecution say and then I go after them, is that right?

Q:     At the end?  Yes.  The submissions.  But what they're saying to me is that you are not genuine when you say how sorry you are that Mr Terry was hurt.

A:       Right, no, I mean I'm sorry.

Q:   And they in part say that because you've not made an apology to his family and you've not ‑ in your affidavit whilst you say it they say that you're just saying it now because you're in trouble.  So this is a chance for you on oath, now that you've taken the oath to tell the truth, if you want me to hear anything more about that it's your chance to do that now.  If you say it from the bar table it's a submission, so I can still take it into account but it's not as ‑ it's not as heavy in the consideration if it's not under oath.

A:   I understand.  I understand.  I'd like to go a different way but I was shocked, I was absolutely shocked when I did get that phone call, you know, because I believe that Bloodtree Oval was safe you know.  And there's only been, since 1986 there's only been two people suffered injuries in their facility, you know.  Damien was one and you won't believe this, I was the other.  I dislocated my shoulder between the change room area and like being treated as a sports committee Gosford Council covered all my medical bills, you know.  So if Damien needs any further medical Gosford City Council should come to the party, you know.  But as far as remorse goes I mean it's ruined, it's actually ruined my ‑ last three years have just been unbelievable for me.  I've suffered a lot.  Family problems, everything, you know.  I don't know if I should go into this now or I go into it later on, you know.

At T18 L49 – T19 L7:

Ms Lewer:   Is it fair to say, Mr McInnes, that you're fairly focused on the blame that other people have for this incident?

A:        Not really.  It should be shared.

Q:        So, you accept that you have some responsibility for it?

A:      Yeah.

Q:     But you are concerned that other persons also have responsibility for it?

A:      It should be shared equally because we all made mistakes.

At T41 L23 – 48:

Her Honour:   Now, at the beginning of your evidence, I asked you if you wanted to say anything to Mr and Mrs Terry and Damien, and you said you wanted to wait until after the questioning from the EPA.

A:      Yes, it sort of bamboozled me a bit.

Q:   So, is there anything on that issue that you want to say?  I'll give Ms Lewer leave to ask you any questions, because this doesn't really arise from her questions, but you did say you wanted to wait.

A:     Yes.  Well, when Damien ‑ Damien got hurt through me not getting rid of that Triquad, and ‑ and I feel sorry about it because it's ‑ it's ‑ it was a stupid thing to do.  It was absolutely stupid.  And I ‑ and I just simply overlooked it.  And ‑ and it's been annoying me ‑ I'm ‑ I'm normally so precise, or ‑ you know, and it's just ‑ I'm basically lost for words.  I'm sorry.  All I can say to Damien's parents is I'm sorry it happened, you know?  It shouldn't have happened.  And I know what they're going through because I've been through it before with a baby.  I said I don't cry.  You know?  This case has just absolutely destroyed me.

Q:     Is that because of the way you feel about what's happened to Damien?

A:   What's happened to Damien should never have happened.  Should never have happened, you know?  And I just don't understand why I didn't throw that stuff out.  I'm just kicking myself.  It's because ‑ there's no excuse.  It's not excusable.  And I'm sorry.  I'm sorry for it.  I am terribly sorry.

At T74 L7 – 50:

Her Honour:   Mr McInnes, I am concerned that whilst you accept that it was, as you call it, an accident, that you're not taking full responsibility for the fact that if you haven't had put that material in the toilet, Mr Terry wouldn't have nearly died.

A:   Exactly.  You're right there.  I know.  I agree with it.  But you don't think of those things at the time, because when you work for yourself for 50 odd years ‑ I mean, Jenny Clark called me an opinionated man.  What's that mean?

Q:   Opinionated?  It means you have opinions and you share them with people.

A:   Right, and she described me as that, and me and Jenny used to have many phone calls together.  I've got to be fair with the Court ‑ I don't say sorry too much.  I'm that sort of person.  But I am sorry.  I am sorry, because this is ‑ this can ruin me, and it will ruin me.  I'm not just thinking of myself; I'm thinking of my whole family.  That's what I'm thinking of.  And I know what‑‑

Q:      But it also nearly ruined Mr Terry's family's lives, as well.

A:   I was just about to get to that.  I also read Damien's mother's statement, and that got me, and my wife's going through the same thing.  I know exactly what she's going through because my wife's going through the same thing with her mother, and Sheila is falling apart.  She is that close to a mental breakdown, it's not funny.  This is my own wife.  Because it's not this case.  The case is part of it.  She's watching her mother fall to pieces in front of her, and Sheila comes home and you know what she does?  She takes it all out on me.  And I handle it, and I say right, and I do it.  We've never had a fight all the 40 odd years.  And since we moved to Kariong, we've had three fights, and we've never had a fight before this.  And it's pulling my family apart.  Not this case; it's not helping.  But what's happened to us, and it's all about ‑ one daughter might be splitting up with her husband and the four kids, and the other daughter here ‑ I just found out the other day that her husband's got depression I didn't know anything about.  She can handle it.  I've got to be here for them.  And the other daughter ‑ her husband's got something wrong up here, right, and I had to go on and like lean on him a bit you know, and I'm still there to lean on him and I just can't handle it anymore, honestly.  You know.  And you know, I'm not going to out and neck myself I tell you but you know, I just don't know what to do.  You know.  And it's okay to ‑ I wish I'd never volunteered to be quite honest now.  I wish I never went up that oval, you know.  I mean you know obviously I did, it kept me alive.  Anyway that's all I want to say, I've had to do all that.

58. As illustrated above, responses to these opportunities were largely consistent with his earlier statements that he was, in effect, sorry that Mr Terry had been harmed. Contrition and remorse, however, is more than being sorry for the consequence of the criminal conduct, it is an acceptance of the responsibility for the offence and the consequences of it. As was observed in Merrick v R [2017] NSWCCA 264 at [97]:

Remorse for a crime cannot be shown if the facts are not faced and if the criminality is not owned…

59. The Defendant is genuinely sorry that Mr Terry and his family have suffered as a consequence of the pesticide being consumed. This consequence resonated with the Defendant as, through his own experiences of losing a child and now his wife having to deal with a dying mother, was the feeling of loss and facing the risk of loss brought home to him. However, when faced with having to take “ownership” of the circumstances that gave rise to the harm, he was keen to direct responsibility to others in an attempt to either relieve himself from responsibility or to share some of it with others. No matter what part the activities of others may have played in this matter, the offence with which the Defendant is charged is the storing of the pesticide and the subsequent actual harm to Mr Terry when it was consumed by him. The placement of the pesticide in the Coke bottle, the retention and failure to dispose of the pesticide and the storage in the public disabled toilet was all conduct that fell to him and I am not satisfied, even now, that the Defendant fully owns that responsibility.

60. I accept that the Defendant has demonstrated real and genuine regret, but he has not shown contrition and remorse of the type to which this consideration is directed. That being said, to the extent that the Prosecutor relied upon the Defendant’s lack of remorse to indicate a need for specific deterrence, as I have determined at [69] below, that a component of the penalty is not warranted to specifically deter the Defendant this factor (or lack thereof) would not arise for consideration.

Prior convictions, character, deterrence retribution and denunciation

61. The Defendant has a record of criminal convictions that is lengthy in number and the time over which the offences were committed, as summarised in the Prosecutor’s submissions at [19] and which indicates that between 1966-2006 the Defendant had been convicted of:

1. Driving offences;

2. Breaching bonds and recognisances and offences of driving whilst disqualified;

3. Assault, misrepresentations, and offering a bribe.

62. The offences can generally be said to relate to driving offences and offences arising from excessive alcohol consumption. I also accept that some offences, such as driving whilst unlicensed and breaching bonds, do disclose a pattern of disregard of the requirements of the law. The Defendant has, however, apart from this offence, not been convicted of any offence since August 2006, some 14 years.

63. The Prosecutor submits that the fact of the prior convictions would indicate a need to specifically deter the Defendant from committing further offences and that the fact of these convictions does not allow the Defendant’s character to be viewed as a person coming before the Court with an otherwise unblemished record.

64. The subject matter of the Defendant’s previous convictions are of a type so dissimilar to the particular offence for which he is now being sentenced that, having regard to the stated purpose of sentencing in s 3A of the CSP Act as:

(b)   to prevent crime by deterring the offender and other persons from committing similar offences. (emphasis added)

it could not be said that the Defendant has a history of past offending of the type such as that for which he is presently before the Court for sentence. The Defendant’s past criminal history does not by its nature, of itself, indicate that the Defendant requires specific deterrence from committing similar offences to the one now before me for sentence.

65. In the circumstances of this case, the Defendant’s past criminal history is regarded a neutral factor, in that it is not an aggravating feature of this offence. However, the number and nature of past offences must also be taken into account more generally such that I cannot find that the Defendant is of generally good character for the purposes of mitigation as he has such a significant and long period of past offending.

66. The Defendant has tendered a number of character references attesting to the fact that he is held in high regard by the referees, in particular, for his support and voluntary service to the sporting activities in the local community. I accept that in that respect he is of good character. However, I also accept the Prosecutor’s submission that only one of the referees (Mr Gill) referred to the present events with which the Defendant is currently before the Court and none were addressed to the Court specifically, therefore, the references are of limited assistance in determining the sentence in this matter and the statements of the regard to which the Defendant is held in the community must be given less weight where it is not apparent that the referee was aware of the circumstances of the offence.

67. Notwithstanding the deficiencies in the references, it is apparent that the Defendant is held in high regard by those members of the community with which he has dealt with as part of the local sporting community relating to his volunteer work in that community. I take that matter of the regard with which he is held and the volunteer work he performed into account in the determination of an appropriate sentence.

68. For the reasons outlined, I do not accept that there is a risk this Defendant is likely to offend in a similar way in the future. There is no evidence to suggest that the Defendant through any work or personal related activities will be coming into contact with any controlled pesticides. Further, his conduct in removing from his home all pesticides held by him indicates that he is aware of the risk of reoffending and has taken steps to avoid such activity. I do not consider it necessary in the determination of the appropriate sentence in this case to take into account a need to specifically deter the Defendant. Additionally, the orders sought by the Prosecutor that the Defendant undertake a number of educative courses relating to working with pesticides should not be imposed as part of the sentence.

69. The Prosecutor submitted that general deterrence was also indicated as relevant as the type of conduct the subject matter of the charge was one that was specifically identified as conduct to which the legislative regime was directed and, therefore, notwithstanding that there was no prior prosecution or similar events, as it was submitted that detection of such acts was difficult, the Court would accept the need to deter other offenders from such conduct.

70. As to general deterrence, it is true that the conduct in this case is conduct of a type for which the legislative scheme was developed. I have taken that factor into account in the consideration of the objective seriousness of this particular conduct and to consider the consideration of this general issue again would be tantamount to a double punishment of the Defendant.

71. The Defendant submitted that the imposition of a financial penalty would not serve any real purpose – as Mr Terry had, fortunately, survived the event and the imposition of a monetary penalty would not change anything except his own financial circumstances. He indicated that he had disposed of all pesticides at his home and that he would not be engaging in any activity in the future that would likely give rise to a similar offence.

72. With respect to the Defendant’s submission that the imposition of a monetary penalty will serve no purpose I do not accept this submission. As outlined at [22] above, the purposes of sentencing include denouncing the conduct of the offender and the recognition of the harm that was occasioned to the victim (in this case, Mr Terry). This principle was concisely formulated by Kirby J in Ryan v The Queen (2001) 206 CLR 267 at [118]:

A fundamental purpose of the criminal law, and the sentencing of convicted offenders, is to denounce publicly the unlawful conduct of an offender. This objective requires that a sentence should also communicate society’s condemnation of the particular offender’s conduct. The sentence represents “a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law”. (citations omitted)

73. The only penalty available for this offence to further those objects is a fine; and the imposition of a monetary penalty in these circumstances will permit the furtherance of those sentencing purposes.

Volunteer

74. At the time of the commission of the offence the Defendant was serving in a volunteer role as a groundskeeper. He had also been a longstanding and valued volunteer of the local soccer club that used the grounds, acting in both coaching and committee positions. Many sporting clubs rely upon volunteers to enable them to function and without volunteers many clubs would be unable to continue to provide the current level of service to the community. As a general observation, the Defendant’s longstanding position as a volunteer is admirable. However, the Defendant submitted that to convict him would be to send a message to people not to volunteer and that such an outcome should be considered in determining penalty.

75. Whilst volunteerism is of benefit to the community, it is not a license to act outside the law. There was no suggestion that the fact that the Defendant assumed responsibility for the pesticide as part of his voluntary work contributed in any way to the causes of the offence or prevented in any way his ability to comply with the requirements of the Pesticides Act. The fact that the Defendant, at the time of the commission of the offence, was acting in a voluntary position is not considered to be a matter that would affect the determination of the appropriate sentence.

Section 10 CSP Act

76. The Defendant submitted that, in all of the circumstances of this case, the Court would exercise its discretion to dismiss the charge against him pursuant to s 10(1)(a) of the CSP Act which, relevant to this submission, provides:

10   Dismissal of charges and conditional discharge of offender

(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,

…

(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.

77. The Defendant submitted that it was appropriate to make such order as the imposition of a fine would impose a significant financial burden on him and his family.

78. The circumstances of this case do not speak in favour of the exercise of such discretion. For the reasons that are outlined in this judgment, the nature of the offence cannot be described as trivial either in the Defendant’s conduct or the consequences of the offending. Whilst the Defendant is no longer a young man and he has in the past suffered with his health, neither of these factors would, either of themselves or together with any other factor, indicate that it would be appropriate to dismiss the charge. His health, as the Court was advised by the Defendant, has improved since his cancer treatment. He was also of an advanced age at the date of the offence, this is not a matter where his age played any part in the offending. The Defendant identified no extenuating circumstances (other than financial impacts) that would warrant the dismissal of the charge, and on the evidence before me I am unable to identify any circumstance that would indicate it was appropriate to dismiss the charge.

79. The evidence of the Defendant’s financial circumstances is outlined below. For the same reason that I determine that the Defendant has capacity to pay even a fine at the maximum penalty, the financial inconvenience occasioned by the imposition of a fine in the circumstances of this case do not justify the exercise of the discretion to dismiss the charge.

80. For those reasons, I reject the Defendant’s application that the charge be dealt with by application of the discretion in s 10(1)(a) of the CSP Act.

Consistency in decision making

81. The principle of even-handedness requires that the Court consider if there is any sentencing pattern for like offences in order to ensure that there is a consistent approach to penalty. This approach, however, must also acknowledge that care must be taken in comparing cases where the circumstances of and facts relating to the offences may be quite different: R v Visconti [1982] 2 NSWLR 104; Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 365.

82. Whilst the Prosecutor identified two prior cases for offences against the relevant provision of the Pesticides Act, each of these cases had insufficiently comparable factual circumstances that would not be of assistance in the determination of penalty in this case.

Legal costs

83. The Prosecutor seeks an order of its legal costs of the proceedings. In this regard, I note that I am only dealing with the current proceedings. The proceedings that were heard at the same time in the previous stage of these proceedings form no part of this claim. The Prosecutor and the Defendant have not agreed a sum of costs and accordingly the Prosecutor seeks an order for costs as provided for in s 257B Criminal Procedure Act 1986 and calculated in accordance with s 257G of that Act. The Prosecutor admitted that the quantum of the legal costs sought were likely to be of an order comparable to the maximum penalty for this charge.

84. The Defendant submitted that he should not have to pay the Prosecutor’s costs as he had insufficient funds to pay for them in addition to any fine.

85. In Environment Protection Authority v Barnes [2006] NSWCCA 246 at [88] it was acknowledged that the requirement to pay costs may constitute a type of penalty such that it is not impermissible to consider the quantum of costs in the determination of an appropriate fine. In this case, however, I do not consider either the potential quantum of the costs would warrant any reduction of an otherwise appropriate fine. The Defendant was unsuccessful in his defence of the charge, which required the Prosecutor to incur the costs of both a hearing on liability and on sentence. This was a decision that was made by the Defendant in consultation with those legal advisors that represented him at the time. There is no justification for a reduction for the costs.

Capacity to pay the fine

86. Section 6 of the Fines Act 1996 mandates that the Defendant’s means to pay any fine is taken into account in the fixing of the amount of any fine in the following terms:

6   Consideration of accused’s means to pay

In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider–

(a)   such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and

(b)   such other matters as, in the opinion of the court, are relevant to the fixing of that amount.

87. The Defendant is no longer in paid employment and he has now retired from his former business as a panel beater. Evidence was adduced in these proceedings that the Defendant has the following income and assets as at August 2020:

1. He is in receipt of an aged pension;

2. He holds a private pension the balance of which was $93,477 which distributes $195 per month;

3. The Defendant, in equal shares with his wife, owns an unencumbered house at Kariong, in which they live; and

4. The Defendant has an entitlement to cash in a bank deposit in his wife’s name in the order of $65,825.70.

88. The Defendant acknowledged these assets but asked the Court to find that his capacity to pay was limited as his assets were the result of his entire working life and that he had no further capacity to earn an income. He also indicated variously that: he and his wife had intended to separate at which point he would “give it all to her”; and that he had a daughter with children who was experiencing personal difficulties and he intended to let her live in the house with his grandchildren and his wife and he live elsewhere.

89. I am required to consider the Defendant’s means to pay. It is clear on the evidence that he has the means to pay even a significant fine. Even though the use of funds from his retirement savings to pay a fine is not what he would have anticipated or desired, it is available for the payment of a fine. There is no evidence before me that even the payment of a significant fine would so reduce the Defendant’s assets such that he could no longer meet his reasonable living expenses or any current liabilities. Accordingly, I find that the Defendant has sufficient means to pay the fine, even a substantial fine in the context of the maximum penalty permitted to be ordered for this offence.

Appropriate sentence

90. The appropriate sentence is to be derived by an “instinctive synthesis” of all of the relevant factors in order to determine an appropriate proportionate sentence: Markarian v The Queen (2005) 228 CLR 357.

91. Taking into account the objective seriousness of the charges and the subjective factors relating to the Defendant that have been identified above, I have determined that the appropriate sentence in this case is the imposition of a fine in the sum of $48,000.

Orders

92. In proceedings 266434 of 2018 the Court makes the following Orders:

1. The Defendant is convicted as charged;

2. The Defendant is fined the sum of $48,000;

3. Pursuant to s 122 of the Fines Act1996 one-half of the fine in Order (2) is directed to be paid to the Prosecutor;

4. In accordance with s 106(1) of the Victims Rights and Support Act 2013 the Defendant is to pay the victim’s support levy in the amount of $85;

5. The Defendant is to pay the Prosecutor’s legal costs of the proceedings in the amount as may be determined under s 257G of the Criminal Procedure Act 1986; and

6. The exhibits are returned.

**********

Amendments

04 November 2020 - At [92(3)] the words "one-half of" is inserted.

Decision last updated: 04 November 2020