EPA v Umbers

[2001] NSWLEC 67

Land and Environment Court

of New South Wales

CITATION:	EPA v Umbers [2001] NSWLEC 67
PARTIES:	PROSECUTOR Environment Protection Authority DEFENDANT Brian Desmond Umbers
FILE NUMBER(S):	50014 of 2000
CORAM:	Sheahan J
KEY ISSUES:	Environmental Offences :- - pesticides - plea of guilty - mitigation
LEGISLATION CITED:	Pesticides Act 1978 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	EPA v Donohoe (10084 and 50085 of 1997, 19 December 1997); EPA v Wellbourne and Ligano Pty Ltd [1999] NSWLEC 244
DATES OF HEARING:	8/03/2001
EX TEMPORE JUDGMENT DATE :	03/08/2001
LEGAL REPRESENTATIVES:	PROSECUTOR Solicitor Mr M Kelly Environment Protection Authority DEFENDANT Solicitor Mr G Spencer Riley Gray Spencer

JUDGMENT:

IN THE LAND AND Matter No: 50014 of 2000
ENVIRONMENT COURT Coram: Sheahan J
OF NEW SOUTH WALES 8 March 2001

ENVIRONMENT PROTECTION AUTHORITY

Prosecutor

v

BRIAN DESMOND UMBERS

Defendant

JUDGMENT

1. This defendant is an agricultural pilot of eight years experience who has come from North Queensland to answer a charge that on about 6 April 1999 he committed an offence against the Pesticides Act 1978 by carelessly disregarding an instruction on a registered label of pesticide Glyphosate CT (Exhibit E1 par 10). At the time of the offence charged he was operating out of Gunnedah.

2. A plea of guilty was entered at an early date and Mr Umbers gave evidence in his own defence. Although there is an agreed statement of facts, there is some dispute in the factual evidence, most relevantly about:

(i) the geographical relationship between the sorghum crop he sprayed and the oats crop damaged, and
(ii) about the prevailing wind at the time, the suitability of the conditions in which the spraying was done, and when the sprays were shut off.

3. For the Prosecution we have the sworn evidence of EPA officer Butler, on the first issue, and the neighbouring farmer, Coleman, on the other, as against the defendant’s now sworn evidence on both matters.

4. The defendant’s then employer was engaged to spray a sorghum crop of 180ha in two paddocks of 120ha and 60ha. The defendant says that the oats paddock was directly east of the 60ha paddock, and that, because of the existence of a crop of some sort to the east of the 60ha paddock, he took particular care to spray only the bulk of the 120ha paddock south-west of the oats.

5. Mr Coleman swore in his affidavit that he saw spray drift on to his oats, and Ms Butler investigated the resulting damage, and took photographs (Exhibit E2).

6. Mr Umbers, when he received Mr Coleman’s complaint, inspected the damage from the air, and his then employer later settled a compensation claim.

7. Accordingly, the court is satisfied that the defendant’s spraying operation on that day caused some environmental harm, and I find the offence proved. However, the degree of his culpability is not free of doubt.

8. I am satisfied that he took precautions in designing and carrying out his one-hour spraying operations on that day, but that they proved to be inadequate. In the end analysis it matters little which evidence about the wind is the more likely to be correct - in all the circumstances some of the pesticide found its way onto Mr Coleman’s oats. Mr Coleman is an experienced farmer and believes that no spraying, aerial or ground-based, should have been carried out in the conditions as he observed them.

9. The maximum fine for this offence is $22,000 for an individual, but Mr Gray-Spencer has asked me to consider applying either s 10 or s 11 of the Crimes (Sentencing Procedure) Act 1999.

10. The environmental harm was quite serious, but closely confined to the immediate vicinity, and has been compensated by the defendant’s then employer.

11. The operation was entirely under Mr Umbers’ control, and he appears to have made a misjudgment which caused him great surprise.

12. He has no environmental record - indeed no criminal record - and is well regarded by two referees, both professionally and personally. He is regarded as having an “extremely responsible attitude to the difficult job that he does” (Exhibit D3).

13. He is 45 years of age with two young children and another about to be born. His employment history shows diligence, and application to self-improvement, and he holds many relevant certificates and permits. A conviction for this offence may, but in my opinion should not, have any impact on those credentials.

14. Like Lloyd J in EPA v Donohoe (10084 and 50085 of 1997, 19 December 1997, at p4) and Pearlman J in EPA v Wellbourne and Ligano Pty Ltd [1999] NSWLEC 244 (pars 19 to 22), and for the reasons they expressed, I do not think that s 10 or s 11 is appropriate in cases such as this.

15. However, in imposing a fine on Mr Umbers I have had regard to the matters I have already noted, as well as his frankness and co-operation, both during the investigation, and in the witness box, and also his acceptance of the fact that the court will order him to pay the Prosecutor’s costs which may amount to $8,000.

16. I apply a 25% discount for the defendant’s plea of guilty, and the court makes the following orders:

1. The defendant is convicted of the offence with which he has been charged.
2. The defendant will pay a fine of $1,500.
3. The defendant is ordered to pay the costs of the Prosecutor, as assessed or agreed, within 3 months of such assessment or agreement.
4. Exhibits E2, D2 and D3 may be returned.