EPA v Gilmour & Anor [No.6]

[2001] NSWLEC 257

Land and Environment Court

of New South Wales

CITATION:	EPA v Gilmour & Anor [No.6] [2001] NSWLEC 257
PARTIES:	PROSECUTOR Environment Protection Authority DEFENDANT Glenn Rex Gilmour PROSECUTOR Environment Protection Authority DEFENDANT Tableland Topdressing Pty Ltd
FILE NUMBER(S):	50006; 50007 of 2000
CORAM:	Sheahan J
KEY ISSUES:	Environmental Offences :- pollution of waters - aerial agriculture - conviction - environmental harm - mitigation - penalty - costs
LEGISLATION CITED:	Environmental Offences and Penalties Act 1989
CASES CITED:	Axer Pty Ltd v EPA (1993) 113 LGERA 357; EPA v Gilmour & Anor [2001] NSWLEC 123; Morrison v Che Mat & Ors (1997) 95 LGERA 212; R v Thomson (2000) 49 NSWLR 383
DATES OF HEARING:	24/09/2001
EX TEMPORE JUDGMENT DATE :	09/24/2001
LEGAL REPRESENTATIVES:	PROSECUTOR Mr T Howard (Barrister) Ms D Buck, Solicitor for the EPA DEFENDANT Mr M Baird (Barrister) Mr S Rugendyke (Solicitor)

JUDGMENT:

IN THE LAND AND Matter No: 50006-7 of 2000
ENVIRONMENT COURT Coram: Sheahan J
OF NEW SOUTH WALES 24 September 2001

ENVIRONMENT PROTECTION AUTHORITY

Prosecutor

v

GLENN REX GILMOUR

Defendant

ENVIRONMENT PROTECTION AUTHORITY

Prosecutor

v

TABLELAND TOPDRESSING PTY LTD

Defendant

JUDGMENT No.6

Introduction

1. On 15 June 2001 I published the fifth judgment in these matters – EPA v Gilmour & Anor [2001] NSWLEC 123 - in which I made the relevant findings on questions of liability, and today the defendants appear on the question of penalty. (See pars 59, 84, 86, 99 and 100 of that judgment for the relevant conclusions).

2. The facts of the matter need not be repeated; they are set out in detail in that judgment of 15 June. Suffice to say that the defendant Gilmour is a principal of, and the main pilot employed by, the corporate defendant, which was retained for a fertiliser spreading operation near the Gwydir River, and Mr Gilmour, in carrying out that operation on the company’s behalf, “allowed” some pellets of fertiliser to fall in and near the river, with the result that a small amount of phosphorus (no more than 700 grams, the evidence would suggest) was released into those waters.

3. The facts as proven constitute a breach on 17 February 1999 of the now repealed Clean Waters provisions of the regime within the Environmental Offences & Penalties Act 1989 (see pars 12-16 of the June judgment). The maximum penalty to which the company is exposed is $125,000, and the maximum to which Mr Gilmour is exposed is $60,000. Mr Baird has asked me to put Mr Gilmour on a good behaviour bond pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999.

The issues of culpability

4. There is a suggestion in the evidence now before the court that a malfunction in the doorway in the bottom of the fuselage of the defendants’ aeroplane may have caused the relevant discharge of fertiliser pellets beyond the boundaries of the area contracted to be fertilised.

5. The court accepts the witness Patton’s written and oral evidence (see Exhibit D3) in this regard, but it is only one class of possible explanations for such discharges. As Mr Baird commented during submissions, the offending discharge seems to have occurred only during turning manoeuvres, and the court simply does not know how to explain the discharges, other than a failure (however explicable) on the part of the defendants to take sufficient care and precautions.

6. Even so, the degree of culpability of the defendants has not been proven to be very high. The evidence of environmental harm is sufficient to make out the offence, but is not strong (see pars 60 to 83 of the June judgment). There was no specific or lasting harm done.

Any issues in mitigation?

7. The company (obviously with the commitment of Mr & Mrs Gilmour) has now fitted the offending plane with up-to-date equipment, which, at least, reduces the risk of straying beyond a defined area, but does not preclude the type of misadventure to which Mr Patton referred. This equipment was purchased at the not inconsiderable price of $31,000, considered by reference to the company’s current overdraft of $61,000, out of its limited facility of $75,000 (see Exhibit D2).

8. The defendants expect me to make the usual order in respect of the Prosecutor’s costs. The total costs of this matter will be very large, I would expect, given the number of dates on which it has been before the court, and I have taken that liability into account in addressing the question of penalty.

9. The defendants have no relevant prior convictions, and have defended these charges resolutely. That is their right, and does not in itself attract a penalty. I accept Mr Baird’s assurance that they view their environmental obligations seriously, and have been deeply concerned about this prosecution, but no discount is here to be allowed in terms of R v Thomson (2000) 49 NSWLR 383.

10. I do not, however, accept Mr Baird’s submission that this particular offence, although of low seriousness, is “trivial” enough to obtain, for either defendant, the benefit of s 10.

11. The aerial agricultural industry is important to both the economy, and the environment, and less than perfect attention to ensuring no environmental harm results from operations such as those in this case must attract a penalty of some sort. See discussion in Axer Pty Ltd v EPA (1993) 113 LGERA 357.

The two defendants

12. In operational terms Mr Gilmour is really the company, or at least he was in this particular event. He was in total control of the operation in every respect, and this is not a case like I encountered in Morrison v Che Mat & Ors (1997) 95 LGERA 212, where there was serious identifiable fault on the part of the employer company, completely separate from the fault found to reside in the employee.

13. If Mr Patton is correct, however, some of the fault must attach to the company, separate from Mr Gilmour.

Conclusion and orders

14. I believe the defendants should pay fines amounting to a total of $12,000.

15. In all the circumstances, I have decided that Mr Gilmour and the company should each pay a fine of $6,000, being 10% of the maximum in the case of Mr Gilmour, and about 5% in the case of the company.

16. In each case the formal orders of the court will, therefore, be:

1. The defendant is convicted of the offence charged in the summons.

2. The defendant is ordered to pay a fine in the amount of $6,000.

3. The defendant is ordered to pay the just and reasonable costs of the prosecutor, to be agreed or assessed according to law.

4. All the exhibits may now be returned.