Murray Irrigation Limited v ICW Pty Limited

[2006] NSWLEC 23

Land and Environment Court

of New South Wales

CITATION:	Murray Irrigation Limited v ICW Pty Limited and Anor. [2006] NSWLEC 23
PARTIES:	PROSECUTOR: Murray Irrigation Limited DEFENDANTS: ICW Pty Limited and Anor.
FILE NUMBER(S):	50026-31 of 2004
CORAM:	Bignold J
KEY ISSUES:	Prosecution :- Sentencing—Discretion not to convict—extenuating circumstances of Defendants who were held to be vicariously liable for the misconduct of a casual employee
LEGISLATION CITED:	Water Management Act 2000, ss 346, 347, 348 Fines Act 1996, s 6 Crimes (Sentencing Procedure) Act 1999, ss, 3A, 10, 21A
CASES CITED:	Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304; Environmental Protection Authority v Taylor (No 4) (2002) 120 LGERA 414; R v Ingrassia (1997) 41 NSWLR 447; R v Paris (2001) NSWCCA 83; R v Piccin (No 2) (2001) NSWCCA 323; Thorneloe v Filipowski (2001) 52 NSWLR 60; Walden v Hensler (1987) 163 CLR 561; Willoughby City Council v Revelas (2004) 140 LGERA 348
DATES OF HEARING:	21/09/2005
DATE OF JUDGMENT:	01/20/2006
LEGAL REPRESENTATIVES:	PROSECUTOR: Mr J Webster, SC with Mr T Howard, Barrister SOLICITORS: Francis Kelly and Grant DEFENDANTS: Mr C Moschoudis, Barrister SOLICITORS Paul Kenny and Associates

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BIGNOLD J

20 January 2006

50026-50031 of 2004 MURRAY IRRIGATION LIMITED v ICW PTY LIMITED; MEARES NOMINEES PTY LIMITED

JUDGMENT

HIS HONOUR:

A. INTRODUCTION

1 In my reasons for judgment delivered on 17 June 2005 I found that the Prosecution had established beyond reasonable doubt that each of the Defendants was guilty of the several offences against the Water Management Act 2000 (the WM Act) with which they had been charged (see [2005] NSWLEC 304).

2 The Defendant (ICW) had been charged with two separate offences against s 346(1)(b) of the WM Act (interfering with a water meter) and with two separate offences against s 347(1) of that Act (taking water without authority) and the second Defendant (Meares Nominees) had been charged with one offence against each of those sections.

3 The WM Act, s 348 prescribes a maximum penalty of 2,500 penalty units (ie $275,000: vide the Crimes (Sentencing Procedure) Act 1999, s 17) in the case of a corporation for an offence under “this Division” (ie Division 1 of Part 3 of Chapter 7 headed “Major Offences”) which includes the offences against ss 346(1)(b) and 347 with which each of the Defendants was charged.

4 At the subsequent hearing on sentence, the Prosecutor has called for the recording of a conviction and the imposition of a fine in respect of each of the charges brought against each Defendant. Additionally, the Prosecutor seeks an order that the Defendants pay its costs (estimated in the order of some $141,000) and an order pursuant to the Fines Act 1996, s 122 that one half of the total penalty imposed upon the Defendants be paid to the Prosecutor.

5 The competing Defence submission was principally that the Court should not convict the Defendants but instead should exercise in their favour the discretion conferred by the Crimes (Sentencing Procedure) Act 1999, s 10. Additionally, the Defence submission was that the Defendants should not be ordered to pay all of the Prosecutor’s costs, especially those relating to the issue of the existence and role in the commission of the offences of the itinerant employee upon which issue the Prosecution case had failed at the trial.

6 At the hearing on sentence, the Defendants led evidence concerning their difficult economic circumstances reflecting upon their limited ability or means to pay a large fine and a large amount of costs.

B. THE EVIDENCE ADDUCED AT THE HEARING ON SENTENCE

7 The Defendants called evidence from Mr Robert Meares Senior who manages the mixed farming property “Bultarra” and his wife Mrs Meares who is a Director of the Defendants.

8 Mr Meares’ evidence establishes that “Bultarra” (comprising a number of separate land holdings) was initially acquired by his father some 70 years ago and has remained in the family since its original acquisition. The property has been irrigated since the early 1950’s and the irrigation system has employed the dethridge wheels (the interference with which was the means whereby water was taken without authority). Mr Meares says that his family and the Defendants have suffered adverse local publicity as a result of these proceedings, including media releases to the effect that the Companies have been found by this Court to be guilty of “water theft”.

9 Since these proceedings were brought, Mr Meares has put in place a standard operational procedure whereby the only persons allowed to operate the dethridge wheel and irrigation system is himself, his son and their full time manager.

10 The Defendants were required to pay a monetary penalty (presumably in terms of their water contract with the Prosecutor) in respect of the taking of water without authority and the Prosecutor reduced the Defendant’s annual water entitlement by the Prosecutor’s estimate of the amount of water taken without authority.

11 Mr Meares gave evidence of his sustained environmental efforts over many years of alleviating the problem of salt affecting the water table which has risen steadily over the years “Bultarra” has been irrigated. These efforts have involved planting some 1 million mature trees which operate to drain the land of the salt water. His successful environmental treatment of a serious and prevailing problem has won him and “Bultarra” widescale recognition and approbation in the farming community, both local and afar.

12 This high standing of the reputation of the Meares family has been buffeted by the adverse media attention that has attended the present proceedings.

13 Under cross-examination, Mr Meares Senior was questioned about the profitability of the farming operations. Since 2002 the overall income derived from the property has been dramatically reduced with a total income of $300,000 earned last financial year being well below running costs. The combined current debts of the Defendants is in the order of $4.5 million.

14 Mrs Meares who is responsible for the Defendants’ financial affairs stated that the Defendants’ current financial position was “appalling” and there was no current capacity to pay any fine that might be imposed if the Defendants were convicted in these proceedings.

15 In the 2003 financial year the Companies’ combined losses were approximately $1 million and Mrs Meares expected a loss of approximately $500,000 for the 2004 financial year (for which a financial statement had not yet been prepared).

C. THE COMPETING SUBMISSIONS ON SENTENCE

16 Before noting the competing submissions on sentence, it should be noted that the parties adopted the following common position in respect of the totality principle in sentencing: (i) the offences which the Court has found to be proven are closely related offences in that the offences of taking of water without authority (the s 347(1) offence) were committed by virtue of the commission of the other offence (the s 346(1)(b) offence) of interfering with the water meter; (ii) the totality principle should be applied to each Defendant in respect of all offences committed by each Defendant; (iii) moreover, since each Defendant is the alter ego of the Meares family, the totality principle should be applied “across all of the offences such that the overall aggregate fine (ie the total when one adds the fines imposed each Defendant) should not exceed what would, in total, be a just and appropriate punishment of the Meares family through their corporate entities for the commission of the offences”: vide par 6 of the Prosecutor’s written submissions; (iv) the far more serious offence in the case of each Defendant is the offence of taking water without authority.

17 The Prosecutor’s submissions may be summarised as follows:

(i) The offence created by s 347(1) (taking of water without authority) is a serious offence by its very nature;
(ii) The commission of the s 347 offences the subject of the present proceedings was a very serious matter, in the light of (a) the express objects of the WM Act ( s 3) and especially the object of providing “ an orderly efficient and equitable sharing of water from water sources ” (object (e) ); (b) the existence of severe drought conditions at the times the offences were committed limiting the annual water allocations to only 8 percent of their overall entitlements; (c) the volume of water that was taken without authority represented one half of the combined volume yielded by 8 percent of their overall annual entitlements; (d) the market value of some $47,000 of the amount of water taken without authority if it had been traded on the Prosecutor’s water exchange programme; and (e) the disadvantage or harm that was potentially caused to other holders of water entitlements by virtue of the unlawful taking of water—although as events happened (the early detection of the offences and the corrective action taken by the Prosecutor) this potential harm did not materialise and no other water user suffered any loss of any relevant water entitlement.
(iii) The culpability of the Defendants in the wrongful actions of their casual or temporary employee (Andrew Crawley) was high by virtue of their failure to properly supervise his work, especially given the casual circumstances of his engagement and the fact that he was a virtual unknown quantity so far as his suitability and reliability was concerned in undertaking the water irrigation operation. The Defendants should be held to be fully responsible in terms of suffering full punishment for Crawley’s wrongful conduct.
(iv) There was a need for a penalty to be imposed to reflect both specific and general deterrence. This was especially so, given that these proceedings represented the first prosecution in this Court in respect of such offences and where the penalty imposed would send the salutary message to other persons who had water entitlements under the WM Act that they should exercise these rights lawfully. If the offence became widespread and prevalent it would undermine the equitable and orderly distribution of scarce and precious water resources and defeat the salutary objects of the WM Act .

18 The competing Defence submissions may be summarised as follows:

(i) the Defendants (as the alter egos of the Meares family) should receive the benefit of the favourable exercise of the Court’s discretion under the Crimes (Sentencing Procedure) Act 1999 , s 10 for the following reasons—
(a) the Prosecution had failed in its case at trial that the Meares family had personally committed the offence;
(b) although the Court found that the relevant offences imposed both strict an vicarious liability, the finding that the Defendants were vicariously liable for the wrongful conduct of Crawley was a borderline case of liability in respect of which from the viewpoint of punishment the Defendants should be regarded as lacking moral culpability because their sole lapse was to repose trust in Crawley as to the manner in which he undertook his duties of irrigating the crop during the very brief period that he was working at “ Bultarra ”;
(c) The Meares family had been involved in farming “ Bultarra ” continuously since the father of Mr Meares Senior acquired the property 70 years ago and they had so engaged in farming activity with environmental and agricultural distinction enjoying a good reputation in the farming locality which good reputation had been buffeted by the adverse media publicity of the current proceedings which would be exacerbated by the recording of convictions against the Defendants;
(ii) if the Court was not disposed to exercise in favour of the Defendants, the s 10 discretion the quantum of any penalty to be imposed would need to reflect the following conditions—
(a) the absence of any aggravating factors in the commission of the offences (as conceded by the Prosecutor’s submissions);
(b) the presence of a number of mitigating factors in terms of the Crimes (Sentencing Procedure) Act 1999 , s 21A(3) as follows—

· no substantial injury, loss or damage had been caused by the offences (par (a));

· the offences were not part of a planned or organised criminal activity (par (b));

· the Defendants did not have any record of previous convictions (par (c));

· the Defendants were persons of good character (par f);

· the Defendants were unlikely to re-offend (par (g));

· the Defendants had made reparation for the offences by paying monetary penalties to the Prosecutor and by having their future water entitlement adjusted (par (i)); and

· the co-operation of the Defendants at the trial in the making of several admissions that assisted proof of the Prosecution case (par (k)); and

(c) the lack of financial means of the Defendants, having regard to the extent of their existing debts, to pay a substantial fine in addition to the Prosecutor’s costs (the latter having been estimated by the Prosecutor’s Solicitor in the order of $141,000);
(iii) there was no need in the present case for a sentence to be imposed to effect specific deterrence because of the vary unusual features of the present case including the manner in which the offences were committed and the basis upon which the Defendants were held to be vicariously liable for the wrongful conduct of the casual employee, Crawley; and
(iv) likewise, there was no need for a sentence to be imposed to effect general deterrence because of the widespread publicity in the local farming community given to the present proceedings. Moreover, in view of the very unusual circumstances in which the Defendants were held to be liable in the present proceedings, the only true general deterrent effect that would arise from the imposition of a sentence in the present case would be to discourage farmers from engaging casual employees to undertake farm activities involving irrigating crops without strict supervision of those activities. The publicity given to the present proceedings effectively provided that element of community education, without the need for reinforcement by the imposition of a sentence on the Defendants.

19 The Crimes (Sentencing Procedure) Act 1999, s 3A states the following “purposes of sentencing”:-

(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

20 In the light of my reasons for judgment holding that the Defendants were vicariously liable for the wrongful conduct of their casual employee, Crawley, I am of the opinion that the sentencing purposes specified in paragraphs (a), (b) and (e) are relevant considerations in the present cases. The purpose specified in par (f) is not in my judgment relevant because on the basis of my earlier findings and conclusions there is no justification for denouncing the conduct of the Defendants. In so concluding, I accept the Defence submissions on sentence that the only moral culpability of the Defendants was their entrusting the irrigation task to a casual employee (who was an unknown quantity). Whereas he was instructed how to operate the irrigation system his work was not strictly supervised (at least in the hours of nightfall during which times the offences were committed, without the knowledge or consent of Mr Meares Senior or Mr Meares Junior). The lack of such supervision explains how the wrongful conduct of the casual employee came to be committed without the knowledge and consent of the Meares’ family but it does not demonstrate any relevant neglect or carelessness on the part of the Meares’ family since the Prosecution entirely failed to establish that the operating of the irrigation system on “Bultarra” was an intrinsically difficult procedure or one that required the constant supervision of the person (albeit a casual employee, being an unknown quantity) who had been instructed by Mr Meares Junior how to undertake the necessary tasks.

21 Having noted the relevant purposes of sentencing prescribed by the Crimes (Sentencing Procedure) Act, s 3A it is important to also note the existence within the overall framework and ambit of the Act of the discretion conferred by s 10 which is in the following terms:

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,
(b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years,
(c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program.
(2) An order referred to in subsection (1) (b) may be made if the court is satisfied:
(a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or
(b) that it is expedient to release the person on a good behaviour bond.
(2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person.
(2B) Subsection (1) (c) is subject to Part 8C.
(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.
(4) An order under this section has the same effect as a conviction:
(a) for the purposes of any law with respect to the revesting or restoring of stolen property, and
(b) for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996 , and
(c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property.
(5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence.

22 Section 10 essentially perpetuates the Crimes Act 1900, s 556A which was introduced into that Act in 1929 when it was modelled on the provisions contained in the Probation of Offenders Act 1907 (UK): see R v Ingrassia (1997) 41 NSWLR 447 at 449 where Gleeson CJ also made the following observation:

The essence of s 556A is that it empowers a court which considers that a charge has been proved, in certain circumstances, to take certain steps without proceeding to conviction. The legal 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.

The condition of the exercise of the power given by s 556A is that the court is of the opinion, having regard to certain considerations, that it is inexpedient to inflict any punishment or any other than a nominal punishment, or that it is expedient to release the offender on probation. In such a case, the court may, without proceeding to conviction, either dismiss the charge or take the course set out in s 556A(1)(b).

23 This passage is cited by Spigelman CJ in Thorneloe v Filipowski (2001) 52 NSWLR 60 at 72 after his Honour had made the following observations concerning the wide ranging discretion conferred by s 10:

The discretion conferred by s 10 is wide-ranging. There is no warrant for treating the scope and range of matters which it is proper for a sentencing judge to take into account in a narrow way. Nevertheless, it is a discretion which must be exercised judicially. The identification of relevant considerations turns on the scope and purpose of s 10.

As Windeyer J said in Cobiac v Liddy (1969) 119 CLR 257 at 269 in the context of concluding that the then equivalent of s 10 in South Australia applies to the offence there under consideration:

... The whole history of criminal justice has shewn that severity of punishment begets the need of a capacity for mercy. The more strict a rule is made, the more serious become the consequences of breaking it, the less likely it may be that Parliament would intend to close all avenues of exception. Especially when penalties are made rigid, not to be reduced or mitigated, it might seem improbable that Parliament would not retain a means of escaping the imposition of a penalty which must follow upon conviction, that it would abolish it, not directly but by a side wind. This is not because mercy, in Portia's sense, should season justice. It is that a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice.

24 In exercising the discretion conferred by s 10(1) the Court is required to have regard to the factors specified in subsection (3) and I now proceed to consider each of those factors.

(a) character, antecedents etc

25 Since as earlier noted the case has been conducted on the basis that the two corporate Defendants are the alter-ego of the Meares family, it is appropriate to include in the present consideration that family’s character and antecedents.

26 The Meares family has farmed “Bultarra” for the past 70 years of which the past 50 years have involved the utilisation of the irrigation system without any misconduct. In particular, since Mr Meares Senior’s continuous working involvement with the property since the mid 1960s, the farm has been exemplarily managed from an environmental viewpoint.

27 The excellent Meares family reputation has been shaken by the adverse publicity emanating from these proceedings.

(b) the trivial nature of the offence

28 The Defendants rightly have not submitted that the offences proven against them are trivial. Clearly they are not trivial offences.

29 However, the more recently decided cases have held that this fact, of itself, does not exclude the availability of the discretion conferred by s 10, notwithstanding the contrary view expressed by Brennan J in respect of similar Queensland legislation in Walden v Hensler (1987) 163 CLR 561 at 577 (but see the different view expressed by Dawson J at 595).

30 The more recent decisions include those of the NSW Court of Criminal Appeal in R v Paris (2001) NSWCCA 83; R v Piccin (No 2) (2001) NSWCCC 323; and my decision in Willoughby City Council v Revelas (2004) 140 LGERA 348.

31 An important relevant holding in Walden v Hensler is that in considering whether the offence is trivial it is not simply the nature of the offence that is to be considered but the circumstances of its commission are also relevant: see at 577 per Brennan J. This has some relevance to the present case because the Defendants’ liability for the offences is their vicarious liability for the wrongful conduct of their casual employee, of which they were ignorant and for which they were not personally implicated or responsible (other than by virtue of the vicarious liability that I held the relevant offences to have created).

(c) extenuating circumstances

32 The “extenuating circumstances” here relevant are those relevant to the Defendants’ vicarious liability for the wrongful conduct of their casual employee, Crawley. They include the fact that the Defendants (including Mr Meares Senior and Mr Meares Junior) were entirely ignorant of the wrongful conduct of their casual employee, to whom they gave the task of operating the irrigation system after Mr Meares Junior had instructed him how to undertake the operation, being a task that was not inherently complex or difficult. That the wrongful conduct could continue over a period of two or three weeks undetected by the Defendants (acting through Mr Meares Senior and Mr Meares Junior) is probably explained by the fact that the interference with the three relevant dethridge wheels occurred during the night-time when it was standard practice for the irrigation system to be continued to be operated. However, the cover of darkness may have left the casual employee’s misconduct undetected, but the result of that misconduct was obviously detectable by the Prosecutor by virtue of the system of daily inspections by the water bailiff employed by the Prosecutor and weekly readings of the meters during the course of the programmed irrigation. (At the trial, it was never explained by the Prosecutor why, given the regime of daily inspections and weekly readings of the meters, it took some two to three weeks before the Prosecutor realised that there were significant discrepancies between the actual recordings on the water meters and what those recordings would be expected to reveal given the programmed release of water irrigation to the property according to the arrangements made after Mr Meares had placed his order for the supply of water irrigation to the property.)

33 In my judgment, these are significant extenuating factors which are relevant to the moral culpability of the Defendants in the commission of the offences.

34 Notwithstanding the Court’s holdings that the relevant offences created strict liability and vicarious liability and that the Defendants were vicariously liable, these extenuating factors, in my opinion, vitally diminish the Defendant’s moral culpability in the commission of the offences. This is not to countermand or undermine the fact that the Defendants have been held to be vicariously liable for the wrongful act of their casual employee. Rather, it rightly focuses attention on the nature and extent of the culpability of the Defendants in the context of their being held to be vicariously liable for the misconduct of their casual employee.

35 In the decision of the Court of Criminal Appeal in Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304, there is to be found a similar focus on the question of the culpability of a defendant which was vicariously liable for the acts of its employee which had polluted waters. In that case, where the trial judge had found the employee “had committed the offence intentionally” and in so doing had been given a “free rein”, Giles JA in giving the leading judgment at 311 rebutted the suggestion that the defendant (ie the employer) had committed the offence intentionally or that the employee had been given “free rein” in the sense of being uninstructed how he was to undertake his duties of collecting sewage in a pump-out tanker and disposing of the contents at authorised land fill sites. (He committed the offences by disposing the contents to an unauthorised site.)

36 In the same case, Hulme J at 313 referred to the “lack of personal fault” on the part of the defendant. This reference obviously was intended to be in contradistinction to the personal fault of the wrongdoer (ie the employee).

37 In the present proceedings where the Prosecutor failed to establish its principal case that the existence and role of the casual employee Crawley was “a fiction invented by the Meares family to avoid responsibility for the offences charged against the Defendants” but where the Court has held the Defendants to be vicariously liable for the misconduct of their casual employee, the only basis for establishing moral culpability on the part of the Defendants that was advanced by the Prosecutor was to question the prudence and sense of the Defendants in giving the irrigation task to an unknown quantity and to assert the lack of proper supervision of him in the performance of this task.

38 But in large measure, this criticism of the Defendants is based upon hindsight. Apart from the benefits of hindsight, the Prosecutor did not establish that for the Defendants to give a casual employee the task that was given to Crawley lacked sense or prudence either because the task was technically difficult (which it was not) or because he was an unknown quantity (whatever this means in the context of him being apparently an itinerant casual farm hand). Nor (again apart from the benefit of hindsight) did the Prosecutor establish that the Defendants had failed to properly supervise or control Crawley’s work. The evidence of Mr Meares Senior and Mr Meares Junior (which I accepted at the trial) was that he was instructed how to operate the irrigation system and given appropriate instructions and that the task was not intrinsically difficult for a farm worker so instructed. The Prosecutor’s submission that some more rigorous and constant supervision of his work (including that undertaken during night-time) was required in a situation where the farm was worked only by Mr Meares Senior and Mr Meares Junior and their full-time manager Mr Chalmers, (whose absence on annual leave was the reason and occasion for Mr Meares Junior hiring Crawley for a casual short-term job) appears to be out of touch with the realities of farming life and practice in conducting a small farm operation. Ultimately, the only moral culpability that can be attached to the Defendants is that some error of human judgment was made in hiring Crawley on a casual short-term basis and in entrusting to him the task of operating the irrigation system.

39 In my judgment, this involves but a very slight element of moral culpability in the context of the serious misconduct of Crawley constituting the commission of the offences.

(d) other relevant matters

40 My consideration of the foregoing factors has included other matters of relevance that more aptly fall within the ambit of this factor. These include the adverse social consequences for the Defendants and the Meares family flowing from the publicity given to these proceedings. These adverse consequences would be exacerbated by the recording of convictions against the Defendants. Other relevant considerations include the fact that the Defendants have made full reparation for the water taken without authority by paying to the Prosecutor the monetary penalties exacted under the relevant water contract and by the adjustments made to their water entitlements to account for the fact that water was taken without authority.

41 They also include the fact that the Defendants have expended considerable funds in defending these proceedings and are likely to be held substantially accountable for the Prosecutor’s costs (estimated in the order of $141,000).

42 Another factor is that although their defence has not been successful, the trial process has vindicated their account of how and by whom the offences came to be committed which account was candidly given to the Prosecutor immediately after the Prosecutor became aware of the apparent breaches of the WM Act. After Mr Meares Senior had so informed the Prosecutor in April 2003, the Prosecutor hired a private investigator Mr Duncan to investigate the incident and to find and interview the casual employee Crawley. His investigations continued throughout 2003 and the early part of 2004 but he was unable to locate and interview Crawley. It was only after he had completed his investigations and reported the outcome to the Prosecutor (including his opinion that Crawley was fictional) that the present charges were laid by the Prosecutor against the Defendants.

43 It may reasonably be inferred that it was only after the Prosecutor had received and accepted Mr Duncan’s final report that it decided to prosecute the Defendants and that in so doing, the Prosecutor had concluded that Mr Meares Senior and Mr Meares Junior had invented the existence and role of Crawley in undertaking the irrigation programme for two or three weeks in March/April 2003 during which period the offences were committed. As my earlier judgment noted, the Prosecution case at the trial failed to establish the fictional existence and role of Crawley in the commission of the offences charged against the Defendants.

44 Whereas this feature of the case is relevant to the question of costs, its relevance to the present consideration of s 10(d) is that the Defendants themselves are reasonably to be regarded as victims of the misconduct of the casual employee inasmuch as they have incurred vicarious criminal liability for his misconduct (which came close to being a borderline case for the purposes of delineating the existence of vicarious liability).

45 It is also to be noted that the present proceedings were the first proceedings brought in this Court charging the offences against the WM Act and an important public consequence of the proceedings is that it has been held that the offences charged against the Defendants are offences creating both strict liability and vicarious liability.

E. CONCLUSIONS AND ORDERS

46 My overall evaluation of all of the relevant factors has led me to the firm conclusion that the discretion conferred by s 10 should be exercised in favour of the Defendants and that it is appropriate that I direct pursuant to s 10(1)(a) that all the charges brought against the Defendants be dismissed.

47 It is usual in cases where the Court has exercised the s 10 discretion in favour of the accused to nonetheless order the accused to pay the Prosecutor’s reasonable costs of the prosecution pursuant to the Criminal Procedure Act 1986, s 253(1)(c).

48 In the present case, the Defendants have submitted that having regard to their significant current debts any significant fine and costs order would risk the financial viability of the farm.

49 The Fines Act 1996, s 6 makes mandatory, in the exercise of the Court’s discretion to determine the amount of a fine, consideration of the accused’s means to pay. Although the definition of “fine” contained in s 4 of that Act is wide and includes “(f) any costs….payable by a person under an order made by a court in proceedings for an offence that were brought by a law enforcement officer”, any costs order that is made in the present proceedings is not within the defined term because the Prosecutor is not a “law enforcement officer” as that term is defined in s 3(1) of that Act cf Environmental Protection Authority v Taylor (No 4) (2002) 120 LGERA 414 where Lloyd J held that the Environment Protection Authority was not relevantly a “law enforcement officer” as defined by the Fines Act and accordingly s 6 of that Act did not apply to the making of a costs order by this Court in those proceedings.

50 In my judgment, it is appropriate that the Court order the Defendants to pay the Prosecutor’s costs of these proceedings. However, such order should exclude all costs incurred in respect of the issue upon which the Prosecutor failed, namely the issue of whether the offences were committed by Crawley as a casual employee of the Defendants, for whose misconduct the Defendants were held to be vicariously liable.

51 For all of the foregoing reasons, I make the following orders in respect of each of the proceedings Nos 50026, 50027, 50028, 50029, 50030 and 50031 of 2004:-

1. Pursuant to the Crimes (Sentencing Procedure) Act 1999 s 10(1)(a), the charge is dismissed.
2. The Defendant is to pay the Prosecutor’s costs in accordance with the Criminal Procedure Act 1986, s 253(2), excluding all costs relating to the issue as to whether the offences were committed by a casual employee of the Defendants (for whose misconduct the Defendants were held to be vicariously liable).