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Moore v Environment Protection Authority (No 2)

Moore v Environment Protection Authority (No 2)

Case [2021] NSWLEC 146 10 December 2021

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Land and Environment Court

New South Wales

Medium Neutral Citation: Moore v Environment Protection Authority (No 2) [2021] NSWLEC 146
Hearing dates: 22, 25 March 2021 and 1 June 2021 (written submissions); 23 August 2021; 11 October 2021 (further written submissions)
Date of orders: 10 December 2021
Decision date: 10 December 2021
Jurisdiction: Class 6
Before: Pain J
Decision:
The Court orders:
(1) The sentencing appeal of proceedings 18/267754 in the Local Court is dismissed pursuant to s 39(2)(c) of the Crimes (Appeal and Review) Act 2001 (NSW).
(2) The Appellant must pay the Respondent’s costs of the conviction appeal Moore v Environment Protection Authority [2021] NSWLEC 87 as agreed or assessed.
(3) The Appellant must pay the Respondent’s costs of the sentencing appeal of proceedings 18/267754 in the Local Court as agreed or assessed.

Catchwords:
APPEAL – appeal against sentence imposed in Local Court for offence of causing injury with pesticide use – injury to individual travelling on public road from spraying of pesticide on appellant’s macadamia farm – strict liability offence – application of s 10(1)(b) Crimes (Sentencing Procedure) Act 1999 not appropriate – appeal dismissed

Legislation Cited:
Crimes (Appeal and Review) Act2001 (NSW), ss 31, 39, 49
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 9, 10, 21A
Crimes Act 1900 (NSW), s 556A (former)
Pesticides Act 1999 (NSW), ss 3, 9, 10, 109, 111

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 Leafair Pty Ltd [2007] NSWLEC 228
Environment Protection Authority v Rohan John Williams [2006] NSWLEC 722
Environment Protection Authority v Sanders & Associates Pty Limited [2003] NSWLEC 186
Franks v Woollahra Municipal Council [2007] NSWLEC 461
Moore v Environment Protection Authority [2021] NSWLEC 87
Moseley v Queanbeyan-Palerang Regional Council (No 2) [2017] NSWLEC 52
Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
R v Ingrassia (1997) 41 NSWLR 447
R v Mauger [2012] NSWCCA 51
R v Paris [2001] NSWCCA 83
R v Nguyen [2002] NSWCCA 183
Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21

Texts Cited:
Australian Macadamia Society’s Best Practice Guidelines for the Application of Chemicals in Macadamia Orchards (July 2011)
ChemCert Australia’s Chemical Users Handbook
Commonwealth Primary Industries Standing Committee’s Spray Drift Management: Principles Strategies and Supporting Information (October 2002)
NSW Judicial Commission, Sentencing Bench Book (as at 23 February 2021)

Category: Sentence
Parties: William Robert Moore (Appellant)
Environment Protection Authority (Respondent)
Representation:
Counsel:
S Anderson (Appellant)
E Anderson (Respondent)
Solicitors:
Sommerville Laundry Lomas (Appellant)
Environment Protection Authority (Respondent)

File Number(s): 2020/213668
Decision under appeal

Court or tribunal:

Local Court

Jurisdiction:

Criminal

Date of Decision:

23 June 2020

Before:

Magistrate K Stafford

File Number(s):

18/267754

Judgment

In Moore v Environment Protection Authority [2021] NSWLEC 87 (Moore No 1) I dismissed the Appellant’s appeal against conviction in the Local Court. The Appellant was found guilty in the Local Court of an…

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.

Continue reading Moore v Environment Protection Authority (No 2)

Details

AGLC: Moore v Environment Protection Authority (No 2) [2021] NSWLEC 146
Case: [2021] NSWLEC 146
Decision Date: 10 December 2021

CaseChat Overview and Summary

In Moore v Environment Protection Authority (No 2), the Appellant, Mr Moore, appealed against the dismissal of his appeal against his conviction and sentence in the Local Court. The dispute centred on the Appellant’s conviction and sentence for offences under the Protection of the Environment Operations Act 1997 (NSW). The Environmental Protection Authority (the Respondent) sought the dismissal of the appeal and an order for the Appellant to pay costs. The case was heard in the Land and Environment Court of New South Wales.

The primary legal issues the court needed to address were whether the appeal against conviction and sentence was properly before the court and, if so, whether the appeal should succeed. The court also needed to consider whether the Appellant should be ordered to pay costs under the relevant legislation. The Appellant argued that the conviction and sentence were unlawful and that the penalty was excessive. The Respondent contended that the appeal was invalid and that the Appellant should be ordered to pay costs for pursuing a frivolous appeal.

The court dismissed the appeal against conviction and sentence, finding that the appeal was invalid and that the conviction and sentence were correctly imposed. The court held that the Appellant’s arguments lacked merit and that the penalty was appropriate. The court found that the appeal was frivolous and vexatious and ordered the Appellant to pay the Respondent’s costs in relation to both the conviction appeal and the sentencing appeal.

In summary, the court dismissed the Appellant’s appeal against his conviction and sentence and ordered him to pay the Respondent’s costs. The court found that the appeal was without merit and that the penalty was appropriate. The Appellant was ordered to pay the Respondent’s costs of both the conviction appeal and the sentencing appeal as agreed or assessed.

Orders

Orders of the court

The Court orders:

(1) The sentencing appeal of proceedings 18/267754 in the Local Court is dismissed pursuant to s 39(2)(c) of the Crimes (Appeal and Review) Act 2001 (NSW).

(2) The Appellant must pay the Respondent’s costs of the conviction appeal Moore v Environment Protection Authority [2021] NSWLEC 87 as agreed or assessed.

(3) The Appellant must pay the Respondent’s costs of the sentencing appeal of proceedings 18/267754 in the Local Court as agreed or assessed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Moore v Environment Protection Authority (No 2) [2021] NSWLEC 146

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 14 of 14 shown

Moore v Environment Protection Authority
[2021] NSWLEC 87 Para 1

…In Moore v Environment Protection Authority [2021] NSWLEC 87 ( Moore No 1 ) I dismissed the Appellant’s appeal against conviction in the Local Court. The Appellant was found guilty in the Local Court of an offence against s 10(1)(a) of the Pesticides Act 1999 (NSW) of using a pesticide in a manner that caused injur…
Nash v Silver City Drilling (NSW) Pty Ltd
[2017] NSWCA 100 Para 52

…l that punishment does not seem appropriate” (NSW Judicial Commission, Sentencing Bench Book at [5-020] as at 23 February 2021). In R v Ingrassia (1997) 41 NSWLR 447 at 449, Gleeson CJ said of the statutory predecessor of s 10 of the CSP Act, former s 556A of the Crimes Act 1900 (NSW):…
Moseley v Queanbeyan-Palerang Regional Council (No 2)
[2017] NSWLEC 52 Para 66

…: R v Paris [2001] NSWCCA 83 at [42] (Simpson J, Wood CJ at CL and Ipp AJA agreeing) cited in Moseley v Queanbeyan-Palerang Regional Council (No 2) [2017] NSWLEC 52 at [53].…
R v Mauger
[2012] NSWCCA 51 Para 51

…As a general proposition, the fact that a conviction is recorded is a matter of special significance: R v Mauger [2012] NSWCCA 51 at [37]-[39]. However, the fact a conviction is not recorded should not “dilute or downgrade the significance of the imposition of a s 10 bond”: R v Mauger at [37] (Harrison J). His Hono…
Franks v Woollahra Municipal Council
[2007] NSWLEC 461 Para 2

…I consider the matter afresh and it is not necessary that I find any fault in the magistrate’s reasoning (see Franks v Woollahra Municipal Council [2007] NSWLEC 461 at [24]). Under s 39(2) of the Appeal Act the Court may determine an appeal against sentence by setting aside, varying the sentence, or dismissing the…
Environment Protection Authority v Leafair Pty Ltd
[2007] NSWLEC 228 Para 61

…s are high and proper precautions must be taken to ensure injury is not caused by the use of them: Environment Protection Authority v Leafair Pty Ltd [2007] NSWLEC 228 ( EPA v Leafair ) at [52].…
Environment Protection Authority v Rohan John Williams
[2006] NSWLEC 722 Para 63

…e given effect to in the absence of the imposition of some monetary penalty: see, for example, Environment Protection Authority v Rohan John Williams [2006] NSWLEC 722 ( EPA v Williams ) at [43].…
Environment Protection Authority v Sanders & Associates Pty Limited
[2003] NSWLEC 186 Para 61

…s must be undertaken with great care as there is considerable potential for harm: Environment Protection Authority v Sanders & Associates Pty Limited [2003] NSWLEC 186 ( EPA v Sanders ) at [32]. Further, the expectations for safety in the use of pesticides are high and proper precautions must be taken to ensure inju…
R v Nguyen
[2002] NSWCCA 183 Para 55

…iament and the community to provide first offenders, in certain circumstances, a second chance to maintain a reputation of good character: R v Nguyen [2002] NSWCCA 183 at [50].…
Ryan v The Queen
[2001] HCA 21 Para 58

…ppellant’s record would afford him leniency in the circumstances notwithstanding the nature of the offence per Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 ( Ryan ) at [23]-[25] where the High Court considered a two-stage process in determining an appellant’s otherwise good character and whether it entitle…
R v Paris
[2001] NSWCCA 83 Para 66

…ut it is not necessary for the sentencing judge to be satisfied of all of these before a court exercises its discretion to make an order: R v Paris [2001] NSWCCA 83 at [42] (Simpson J, Wood CJ at CL and Ipp AJA agreeing) cited in Moseley v Queanbeyan-Palerang Regional Council (No 2) [2017] NSWLEC 52 at [53].…
Cobiac v Liddy
[1969] HCA 26

…gal and social consequences of being convicted of an offence often extend beyond any penalty imposed by a court. As Windeyer J said in Cobiac v Liddy (1969) 119 CLR 257 at 269, “a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice”.…
Axer Pty Ltd v Environment Protection Authority
Para 62

…are indications of a public expression by Parliament of the seriousness of the offence and the gravity of the offence 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.…
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority
Para 62

…he offence and the gravity of the offence 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.…

Legislation cited in this decision · 4

Pesticides Act 1999 (NSW)
10, 109, 111, 3, 9 6 mentions (from Para 1)
Crimes (Sentencing Procedure) Act 1999 (NSW)
10, 21A, 3A, 9 5 mentions (from Para 1)
Crimes (Appeal and Review) Act 2001 (NSW)
31, 39, 49 4 mentions (from Para 2)
Crimes Act 1900 (ACT)
556A 2 mentions (from Para 52)

Medium Neutral Citation:	Moore v Environment Protection Authority (No 2) [2021] NSWLEC 146
Hearing dates:	22, 25 March 2021 and 1 June 2021 (written submissions); 23 August 2021; 11 October 2021 (further written submissions)
Date of orders:	10 December 2021
Decision date:	10 December 2021
Jurisdiction:	Class 6
Before:	Pain J
Decision:	The Court orders: (1) The sentencing appeal of proceedings 18/267754 in the Local Court is dismissed pursuant to s 39(2)(c) of the Crimes (Appeal and Review) Act 2001 (NSW). (2) The Appellant must pay the Respondent’s costs of the conviction appeal Moore v Environment Protection Authority [2021] NSWLEC 87 as agreed or assessed. (3) The Appellant must pay the Respondent’s costs of the sentencing appeal of proceedings 18/267754 in the Local Court as agreed or assessed.
Catchwords:	APPEAL – appeal against sentence imposed in Local Court for offence of causing injury with pesticide use – injury to individual travelling on public road from spraying of pesticide on appellant’s macadamia farm – strict liability offence – application of s 10(1)(b) Crimes (Sentencing Procedure) Act 1999 not appropriate – appeal dismissed
Legislation Cited:	Crimes (Appeal and Review) Act2001 (NSW), ss 31, 39, 49 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 9, 10, 21A Crimes Act 1900 (NSW), s 556A (former) Pesticides Act 1999 (NSW), ss 3, 9, 10, 109, 111
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 Leafair Pty Ltd [2007] NSWLEC 228 Environment Protection Authority v Rohan John Williams [2006] NSWLEC 722 Environment Protection Authority v Sanders & Associates Pty Limited [2003] NSWLEC 186 Franks v Woollahra Municipal Council [2007] NSWLEC 461 Moore v Environment Protection Authority [2021] NSWLEC 87 Moseley v Queanbeyan-Palerang Regional Council (No 2) [2017] NSWLEC 52 Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 R v Ingrassia (1997) 41 NSWLR 447 R v Mauger [2012] NSWCCA 51 R v Paris [2001] NSWCCA 83 R v Nguyen [2002] NSWCCA 183 Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21
Texts Cited:	Australian Macadamia Society’s Best Practice Guidelines for the Application of Chemicals in Macadamia Orchards (July 2011) ChemCert Australia’s Chemical Users Handbook Commonwealth Primary Industries Standing Committee’s Spray Drift Management: Principles Strategies and Supporting Information (October 2002) NSW Judicial Commission, Sentencing Bench Book (as at 23 February 2021)
Category:	Sentence
Parties:	William Robert Moore (Appellant) Environment Protection Authority (Respondent)
Representation:	Counsel: S Anderson (Appellant) E Anderson (Respondent) Solicitors: Sommerville Laundry Lomas (Appellant) Environment Protection Authority (Respondent)
File Number(s):	2020/213668
Decision under appeal	Court or tribunal: Local Court Jurisdiction: Criminal Date of Decision: 23 June 2020 Before: Magistrate K Stafford File Number(s): 18/267754