Betland v Environment Protection Authority

Betland v Environment Protection Authority - [2010] NSWLEC 183 - NSWLEC 2010 case summary — Zoe

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22 On 25 March 2010, Mr Betland submitted to a voluntary interview under caution. During the course of the interview, Mr Betland admitted: that he borrowed the white van ARE 85B from his sister; that he possessed a quantity of seed laced with pesticide which he had obtained from another pest controller. He knew it was poisonous to birds but did not know what chemicals it contained; that he had spread some of this seed on the roof of the Miller Shopping Centre; that he did not hold any licences or permits relating to pest control; that, while he had been working at the shopping centre, he had been approached by a stranger who had offered him $200 to try to poison birds at 8 Heckenberg Avenue and that he had taken the $200 and thrown the contaminated seed over the fence. According to Betland, this would also assist him in the task of controlling the birds at the shopping centre because while they were able to feed so easily at Heckenberg Avenue, they would not be taking feed at the shopping centre; he did not store the pesticide in an appropriately labelled container at times before, during and after pesticide use; he did not know or meet the occupants of 8 Heckenberg Avenue prior to or after applying the pesticide to their residence; he did not clean up any seed or dead birds from his pesticide application to 8 Heckenberg Avenue; that he knew what he was doing in relation to the offences was illegal. Prior misconduct 23 Mr Betland has been the recipient of two previous penalty notices under the Pesticides Act for breaches of s 15(1)(b). These resulted from the same set of circumstances and related to the use of pesticide in contravention of label instruction. 11 As stated above, apart from the Probation and Parole Report, this was the only factual evidence before the learned magistrate. Mr Betland, who was unrepresented, I was told by the parties made very limited remarks in his defence at the hearing below. No transcript of these remarks is available. 12 What is immediately apparent from the statement of facts is the following: (a) first, that there was no evidence before the learned magistrate as to whether or not fenthion was in any way harmful to humans other than the statement that "fenthion is included on the Poison List proclaimed under the Poisons and Therapeutic Goods Act 1996 "; and (b) second, that other than fatality, there was no evidence as to the extent to which, if any, the birds killed by the fenthion suffered prior to their death. 13 The Probation and Parole Report stated as follows: Offences: 1.1 Use any prescribed substance for harming of any bird 1.2 Use pesticide in a manner which harms non-target animal x 2 Sources of Information: Interview with offender Perusal of Court depositions including Environment Protection Authority Statement Perusal of COS, Probation and Parole Service records PRIOR CONTACT WITH CORRECTIONS Mr Betland had prior contact with this Service in 2004 by way of a Community Service Order. Departmental records indicated that completed his order in a satisfactory manner. The offender was subject to supervision as a condition of a Section 9 Bond in 2000, Mr Betland was terminated from this Order and his response was reported as borderline. It has not been possible to verify all the background information in this report. SUMMARY AND COMMUNITY BASED SENTENCING OPTIONS Mr Betland is a fifty eight year old male who is currently residing with his son in the Panania area. The offender stated that he has a close and supportive relationship with his ex wife. He indicated that he has positive relationships with his three adult children. Mr Betland stated that he completed his education at the age of fifteen and entered into various labouring positions. He reported that due to suffering with daily chronic migraine headaches, which caused him loss of employment, he commenced his own business in the bird pest control environment. The offender stated that he has been self employed for a period of twenty five years and currently does not work consistently due to his medical condition. Mr Betland claimed that due to his constant suffering of migraines he is currently prescribed Imigram daily. Mr Betland does not present with any current mental health, drug and/or alcohol issues, which is supported by Departmental Records. The offender stated that he had read and agreed with the Environment Protection Authority statement of facts. Mr Betland stated that he has changed his on the job work practices due to the current offences. He also reported that he was aware that his behaviour was unlawful and accepts full responsibility for his criminal behaviour. Suitability for Supervision Mr Betland has been assessed as unlikely to report or benefit from supervision by this Service for the following reasons: As the offender would appear to require a low level of intervention, a period of supervision is not recommended . Community Service Order Mr Betland has been assessed as unsuitable for a Community Service Order as per the requirements of S86 (1) of the Crimes (Sentencing Procedure) Act 1999 for the following reasons: Mr Betland reported that his medical condition would prevent him from attending a Community Service Order on a regular basis. Mr Betland declined to sign the relevant undertaking due to concerns in relation to his current medical condition . Periodic Detention Order Mr Betland is ineligible for a Periodic Detention Order as per the requirements of S65A of the Crimes (Sentencing Procedure) Act 1999 . 14 Because of his medical condition Mr Betland was assessed as unsuitable for a community service order. This is so notwithstanding that in 2004 Mr Betland completed a community service order "in a satisfactory manner" and the daily chronic migraine headaches which appear, on the face of the Report, to be the only medical condition that would prevent him from attending to such an order in 2010 appear to have been ongoing prior to his completion of the 2004 community service order. This is inferred by the fact stated in the Report that it was the headaches that caused Mr Betland to lose employment, and therefore, commence his own business in bird pest control, a business in which he has been self employed for a period of 25 years.

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Decision of the Court Below 15 In imposing the penalties for the three offences the learned magistrate's reasoning was stated to be: You need to understand, Mr Betland, fenthion is a terrible thing to have in the community, to be disseminating around in the community unregulated, uncontrolled. The idea that you are spreading it around the roof of a shopping centre; the idea that you are throwing it over somebody's fence, and those people have children, that is - words fail me. Words fail me, the risk the community was at from you. How can I possibly stop you from doing this? How can I possibly send the appropriate denunciation of you for what you have done and how you have imperilled the community? You are a shocking, wicked danger to the community. As I said, the fauna takes a back seat, even though that is the focus of the Acts; it is the public who have been at shocking risk from you and your wanton criminal behaviour. I have two jobs. I have general deterrence and specific deterrence. Specific deterrence is to try to make sure that you do not act like this again and imperil the community, but the other is to make sure that other people who have access to fenthion are dissuaded by what happens to you by publication of the sentence and by word of mouth. People have to be given pause by what happens to you and so they make sure they are more careful in terms of what they do. Now, I have read the Probation and Parole report and you are not suitable to perform any other alternatives to a gaol sentence and that, I have to say, in terms of our first sequence, is what is clearly demanded by the seriousness of this offence. Can I get you to step into the dock for me please, Mr Betland. In terms of sequence 1, you get a modest discount for a plea of guilty. The maximum sentence is for a period of six months. YOU ARE SENTENCED TO A PERIOD OF FOUR MONTHS IN CUSTODY WHICH DATES FROM TODAY. IN TERMS OF THE TWO MATTERS UNDER THE PESTICIDES ACT, YOU ARE FINED ON THE FIRST SEQUENCE $2,500 AND $76 COURT COSTS. ON SEQUENCE 3, $5,000 AND $76 COURT COSTS. ON OUR FIRST SEQUENCE, PROFESSIONAL COSTS OF $1,500 ANALYSIS COSTS, YOUR CONTRIBUTION IS $654 AND EACH MATTER CARRIES $76 COURT COSTS. You will be taken down into custody by Corrective Services momentarily. This is Mr Betland who has been sentenced to custody for four months. I return your Pesticides Act.

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(f) was motivated by a desire to rid the shopping centre of birds as he had been engaged to do. Nature of an Appeal Against the Severity of Sentence 24 An appeal against the severity of sentence is made to this Court as of right under s 31(1) of the Crimes (Appeal and Review) Act 2001 ("the Review Act"). The appeal is dealt with by way of rehearing on the basis of certified transcripts and evidence adduced in the Court below (s 37(1) of the Review Act). The Court may grant leave to adduce new evidence only if it is satisfied that it is in the interests of justice to do so (s 37(2) of the Review Act). In Thomson v Hawkesbury City Council [2009] NSWLEC 151 at [44] I describe in more detail the nature of such an appeal. I adopt those observations here. The Custodial Sentence Was Manifestly Excessive 25 While an appeal under s 31 of the Review Act is not restricted to a determination of whether the decision of the court below is infected with error, but is a rehearing on the evidence given before the trial court, in my view it is nevertheless appropriate to make the following observations about the decision appealed from. 26 First, it is clear reading the judgment that her Honour was motivated in awarding a custodial penalty to Mr Betland by a perceived risk to human health from the dissemination of the fenthion contaminated seed. However, there was no evidence before her Honour as to what this risk was, or indeed if there was any risk at all. The fact that fenthion is included on the Poisons List proclaimed under the Poisons and Therapeutic Goods Act may assist in drawing an inference as to its toxicity, however, such an inference is, in my opinion, insufficient to underpin the imposition of a custodial sentence. There was certainly no evidence that Mr Betland was "a shocking, wicked danger to the community", or that "it is the public who have been at shocking risk". Such a finding simply could not be supported on the material before the trial court. 27 Second, and having regard to the severity of the sentence imposed, it cannot be said that the learned magistrate's reasons for doing so were adequate (Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [57]-[59]). This observation is made fully cognisant of the enormous pressures and resource constraints that local court magistrates find themselves under in the execution of their judicial function.

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32 It does not follow from an application of the principle that harm to the environment cannot be taken into account in a determination of the appropriate penalty to be imposed in relation to the offence. Harm to the environment includes any harm, actual or potential, to human health. Accordingly, to take into account the risk to human health posed by Mr Betland's activities is not a breach of the De Simoni principle, but is a proper factor to consider in determining an appropriate sentence. Applicable Principles 33 On a rehearing such as this, the Court must determine for itself the appropriate sentence that should be imposed for each of the offences. In determining the appropriate sentence the Court must take into account both the objective gravity of the offence, together with the subjective circumstances of the applicant (Thomson at [65] and the authorities cited thereat; Zhou v Auburn City Council; Chen v Auburn City Council [2009] NSWLEC 75 at [19]). 34 Relevantly s 3A of the CSPA provides that the purpose of imposing a sentence on an offender includes: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (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. Objective Gravity 35 The primary factor to consider in determining an appropriate sentence is the objective gravity or seriousness of the offence. It fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit insofar as the sentence must not exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances (Veen v The Queen (No 2) (1988) 164 CLR 465 at 472, 485-486, 490-491 and 496; Hoare v The Queen (1989) 167 CLR 348 at 354). It fixes the lower limit because allowance for the subjective factors of the case ought not produce a sentence which fails to reflect the objective gravity or seriousness of the offence (Pittwater Council v Scahill (2009) 165 LGERA 289 at [50]). 36 In determining the objective gravity or seriousness of the offence, the circumstances of the offence to which the Court may have regard relevantly include (see Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 at [163]; Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 at [110], both cited in Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited (No 2) [2009] NSWLEC 6 at [36]-[38]): (a) the maximum penalty for the offence;

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42 But having made this finding, in the absence of any further evidence, and notwithstanding that the harm to the dead birds was absolute, it cannot be said that the overall harm to the environment is anything, as the respondents submitted, other than at the low end of the scale. Mr Betland's State of Mind and Reasons for Committing the Offence 43 Although Mr Betland denied in cross examination that he was motivated purely by "cash", I nevertheless find that the unlawful use of the pesticide was for financial gain inasmuch as Mr Betland desired to complete the task which he had been engaged to do (namely, the removal of the pigeons from the roof of the shopping mall for financial reward) (Director-General, Department of Environment and Climate Change v Rae (2009) 168 LGERA 121 at [11]-[13]). 44 I also find that the unlawful use was deliberate and was known by Mr Betland to be illegal at the time. 45 A further consideration in an examination of Mr Betland's state of mind is his cavalier attitude towards the possible suffering of the birds that he fatally poisoned. While I accept that Mr Betland feels genuine distress for the consequences of his actions, the fact remains that he used the pesticide in the knowledge that he did not know what the consequence of its use would be on the birds, other than their death. That is to say, he deployed the pesticide absent any consideration of the potential suffering it could cause the birds who came into contact with it. Practical Measures and Mr Betland's Control Over the Activities and Foreseeability of Risk of Harm to the Environment 46 It was not suggested that Mr Betland did not have control over the unlawful use of the pesticide and thus could not have taken practical measures to avoid the harm. At all times he did and could have. 47 I also find that it was reasonably foreseeable that the spreading of poisonous seed would cause harm to the birds and thus to the environment. Conclusion on Objective Circumstances 48 In my view, the commission of the third offence is of moderate objective gravity. Although the environmental harm caused by it was at the lower end of the scale, Mr Betland's conduct was nevertheless deliberate, was known at the time to be unlawful and was committed by him for reasons of financial expediency and with little regard to the possible consequences. These factors aggravate the objective seriousness of the offence. The Subjective Circumstances of Mr Betland 49 A proportionate sentence requires a court to take into account any personal or mitigating factors present (Gittany at [144] and the authorities cited thereat). 50 The subjective circumstances of Mr Betland to be considered relevantly include:

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56 I also accept that general deterrence must be considered so that others employed in the business of pest control, or indeed anyone who seeks to rid themselves of pests, do not take matters into their own hands by the unlawful use of pesticides to achieve their aim, particularly in circumstances where the potentially harmful consequences of this use is not fully appreciated or known. Consistency in Sentencing 57 A relevant consideration in sentencing is the ascertainment of the existence of a general pattern of sentencing by the court for offences such as the offence in question (Gittany at [179]-[183]). The proper approach is for the Court to look at (Gittany at [182]): [182] … "whether the sentence is within the range appropriate to the gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range": R v Morgan (1993) 70 A Crim R 368 at 371 and Capral Aluminium Ltd v Workcover Authority of NSW (2000) 49 NSWLR 610 at 641. 58 Of course care must be taken because each case is different and a sentence in one case does not demonstrate the limits of a sentencing judge's discretion (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 365 and Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304 at 312). 59 Mr Betland is only the second person in New South Wales to have been gaoled for the commission of an environmental offence. This is no doubt because, as Preston CJ articulated in Plath v Rawson (2009) 170 LGERA 253 (at [181]; see also Environment Protection Authority v Wattke, Environment Protection Authority v Geerdink [2010] NSWLEC 24 at [102]-[109]): 181 Imprisonment may be the appropriate penalty for the more serious environmental offences to achieve the purposes of retribution, denunciation, deterrence and incapacitation or protection of the community from the offender. Circumstances where a custodial sentence has been considered to be appropriate punishment to reflect the criminality involved in environmental offences include: (a) where the offender's conduct involves a considerable degree of willfulness and deception: Environment Protection Authority v Gardner [1997] NSWLEC 169 (7 November 1997) at pp 1, 2, 3, 5; R v Moore [2001] QCA 431; [2003] 1 Qd R 205 at [10], [13], [21]; Dempsey v The Queen [2002] QCA 45; (2002) 127 A Crim R 113 at [3], [4]; R v Borrett [2004] NZRMA 248 at [7], [10], [19]-[20]; R v Conway [2005] NZRMA 274 at [71]; R v Garrett [1997] 1 Cr App Rep (S) 109 at 111; R v Sissen [2001] 1 WLR 902 at [51]; and R v Kelleher [2008] EWCA Crim 3055; [2009] 2 Cr App R (S) 25 at [8], [24], [25];

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(e) where deterrence, both individual and general, makes the custodial sentence appropriate: Environment Protection Authority v Gardner at p 6; R v Moore at [11]; Dempsey v The Queen at [11]; R v Borrett at [21]; R v Conway at [46], [64]-[66], [73]; R v Sissen at [51] and R v Kelleher at [30]. 60 Fortunately an insufficient number of these factors are present in the commission of most environmental offences. However, many, if not all, were present in Environment Protection Authority v Gardner [1997] NSWLEC 212 (14 August 1997). Mr Gardner is the other person in New South Wales who has been gaoled for the commission of an environmental offence. In that case, the defendant was found guilty of a tier 1 pollution offence of wilfully disposing of waste in a manner which was likely to harm the environment under s 5(1) of the Environmental Offences and Penalties Act 1989. The defendant operated a caravan park and was discovered to have constructed a sealed system of bypass plumbing in order to discharge effluent from a caravan park directly into a river, rather than incur costs for a pump out and road tanker disposal as required by the Port Stephens Council. The illegal pumping and discharge into the river had occurred for a period of 128 weeks and caused viral contamination to sediments near the outlet pipe. The activity was found to have posed a grave health risk to the community. 61 In the judgment on sentence (Environment Protection Authority v Gardner [1997] NSWLEC 169 (7 November 1997)), Lloyd J also found that the defendant knew his activities were illegal and would harm or were likely to harm the environment. There were multiple aggravating features in that the offence was not an isolated or single act of pollution, the offence was committed for financial gain, the defendant went to great lengths to conceal the illegal activity, and the harm effected the community as a whole and the defendant was aware that his actions caused environmental harm but showed little remorse. The defendant was sentenced to 12 months imprisonment with a non-parole period of nine months, and was ordered to pay a penalty of $250,000 (the maximum fine at that time) and the prosecutor's costs of $170,000. 62 The facts in Gardner are markedly far more serious than the offences before me, including for present purposes the offence against s 110 of the National Parks and Wildlife Act. 63 Thus having regard to the factual matrix resulting in a custodial sentence being imposed in Gardner and the facts giving rise to the commission of the offences in these proceedings, it is tolerably clear that in terms of evenhandedness, imprisonment is not warranted in the present circumstances. 64 Moreover, in considering whether imprisonment is the appropriate punishment, s 5(1) of the CSPA requires that a court not sentence an offender to imprisonment unless it is satisfied that no penalty other than imprisonment is appropriate, having regard to all the possible alternatives. In the present case a fine is an appropriate alternative.

Parties

Applicant/Plaintiff:

Betland

Respondent/Defendant:

Environment Protection Authority

Cases Cited (36)

CITATION : Betland v Environment Protection Authority [2010] NSWLEC 183

Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 Environment Protection Authority v Gardner [1997] NSWLEC 212 Environment Protection Authority v Gardner [1997] NSWLEC 169 Environment Protection Authority v Wattke, Environment Protection Authority v Geerdink [2010] NSWLEC 24 Garret on behalf of the Director-General of the Department of Conservation and Environment v House [2006] NSWLEC 492 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 CASES CITED: Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited (No 2) [2009] NSWLEC 6 Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 Thomson v Hawkesbury City Council [2009] NSWLEC 151 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Zhou v Auburn City Council; Chen v Auburn City Council [2009] NSWLEC 75

[1997] NSWLEC 212

[1997] NSWLEC 169

[2005] HCA 25

[2001] QCA 431

[2002] QCA 45

(1993) 113 LGERA 357

(2006) 145 LGERA 234

(2001) 115 LGERA 304

(1993) 32 NSWLR 683

(2009) 168 LGERA 121

(2006) 145 LGERA 189

(1989) 167 CLR 348