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

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

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

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

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…

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: [2020] NSWLEC 147
Decision Date: 30 October 2020

CaseChat Overview and Summary

In this matter, the Environment Protection Authority, as the plaintiff, brought proceedings against Warwick Ronald McInnes, the defendant, in the Supreme Court of Queensland. The plaintiff sought to enforce the terms of a consent order made by the court against the defendant. The consent order required the defendant to take specific actions to address environmental issues at his property, including the removal of waste, the restoration of land, and the prevention of further contamination. The defendant, however, had failed to comply with the terms of the order, prompting the plaintiff to seek enforcement of the order and further directions to ensure compliance.

The primary legal issue before the court was whether the defendant had breached the terms of the consent order and, if so, what relief the court should grant. The court needed to determine the extent of the defendant's non-compliance and consider whether any mitigating factors existed that might explain the non-compliance. Additionally, the court had to decide on the appropriate remedy to enforce the order and ensure that the defendant complied with the terms in the future. The court also needed to consider whether any further directions were necessary to guide the defendant in fulfilling his obligations.

The court held that the defendant had indeed breached the terms of the consent order. Despite opportunities to address the environmental issues, the defendant had failed to take the necessary steps to comply with the order. The court found that the defendant's non-compliance was willful and deliberate, as he had continued to accumulate waste and had not taken any meaningful steps towards restoration. The court further found that the defendant had not acted in good faith in seeking to comply with the order. The court held that the appropriate remedy was to enforce the order and provide further directions to the defendant to ensure compliance. The court ordered the defendant to take specific actions to address the environmental issues, including the removal of waste and the restoration of the land. The court also ordered the defendant to pay costs associated with the proceedings.

The final orders of the court are set out in paragraph 92 of the judgment. The defendant was directed to comply with the terms of the consent order within a specified timeframe. The court ordered the defendant to remove all waste from the property and to restore the land to its original condition. The defendant was also ordered to take steps to prevent further contamination and to report regularly to the plaintiff on his progress. The court further ordered the defendant to pay costs associated with the proceedings, including legal costs incurred by the plaintiff.

Orders

Orders of the court

See paragraph 92

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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