Environment Protection Authority v Barrett

ENVIRONMENT PROTECTION AUTHORITY Prosecutor v JUSTIN ANDREW BARRETT Defendant Judgment

JUDGMENT 1 The Defendant has pleaded guilty to a charge that on or about 8 February 2002 at Wetherill Park he negligently caused a substance to escape in a manner that harmed or was likely to harm the environment, contrary to s116(1) of the Protection of the Environment Operations Act 1997 (the POEO Act). 2 The offence created by s116 is a Tier one offence under the POEO Act for which the maximum penalty prescribed by s119 is a penalty not exceeding $250,000 or 7 years imprisonment, or both, in the case of a convicted person who is an individual. 3 Section 116(1) provides as follows: 116. Leaks, spillages and other escapes (1) If a person wilfully or negligently causes any substance to leak, spill or otherwise escape (whether or not from a container) in a manner that harms or is likely to harm the environment: (a) the person, and (b) if the person is not the owner of the substance, the owner, are each guilty of an offence. 4 The circumstances of the commission of the admitted offence and the environmental consequences of it are detailed in the Statement of Agreed Facts (Exhibit 1). 5 The spillage incident so detailed has been the subject of five separate charges - three against the present Defendant and two against Mr Hopley the Defendant's employer at the time of the incident. 6 In addition to the charge of the offence against s116(1) of the POEO Act both the Defendant and his employer were charged with an offence against s120 of the POEO Act ("polluting waters") and an offence against s35 of the Roads and Rail Transport (Dangerous Goods) Act 1997 ("transport dangerous goods without a licence"). 7 At the commencement of the hearing Senior Persecuting Counsel informed the Court that the Prosecutor proposed to only proceed against the Defendant with the one admitted charge and that the other two charges laid against him should be dismissed with no order as to costs. 8 The same charges laid against the Defendant's employer have already been prosecuted. They were heard together by Cowdroy J who convicted the Defendant of each charge (the defendant had entered pleas of guilty) and imposed fines of $15,000 and $20,000 respectively for the convictions of the two offences and had in each case ordered the Defendant to pay the Prosecutor's costs in the sum agreed or failing agreement as assessed: see Environment Protection Authority v Hopley [2003] NSWLEC 112. His Honour's judgment contains a summary of the facts relevant to the charge of polluting waters which generally accords with the facts as described in the Statement of Agreed Facts (Exhibit 1) in the present case. 9 On the day that the offence was committed the Defendant was working as a truck driver for a transport business which was located in Orange. (He had been so working for only two weeks). He was instructed to proceed to premises situate at St Marys to collect a load of chemicals (comprising four containers of 1000 litres). Upon realising that the goods were dangerous goods the Defendant telephoned his employer and complained that he was being told to transport dangerous goods because he was not licensed to do so and the truck that he was driving lacked the appropriate dangerous goods placarding and equipment. (He knew of these requirements because in the past he had held a licence to transport dangerous goods). 10 His employer instructed him to collect the load and take it to depot premises in Wetherill Park known as 'Rickos', to which the transport business had standing arrangements for access as a transfer and temporary storage facility when transporting goods in Sydney. The employer planned to arrange for another driver to take the goods from 'Rickos' premises to their ultimate destination at Menindee in Western NSW. 11 Having transported the chemical load from St Marys to the Wetherill Park depot, the Defendant parked the truck in the public road outside the depot. He had been instructed by his employer to unload the goods by fork lift available at Rickos' depot. This action was in accordance with existing practice whereby the Hopley truck drivers would find an available forklift and operate it to unload their trucks. This operation would take place without any involvement or supervision of employees at Rickos' depot. 12 The forklift which the Defendant took possession of, to unload the chemicals, was fitted with long extension arms. The Defendant attempted to disengage the extension arms but when he could not do so, he commenced to operate the forklift by lifting the first of 1000 litre containers from the truck which had remained parked in the public road outside the Depot. After lifting the container he proceeded to drive the forklift towards the delivery entrance to the Depot premises when the container slipped down the extension arms and then fell onto the ground splitting the container and spilling its chemical contents which quickly found their way into the street gutter and thence the stormwater system before discharging into the waters of Prospect Creek. 13 Although the Defendant had attempted to use the forklift to manoeuvre the spilt container into an upright position, this attempt failed and in the process the Defendant was sprayed with some of the spilt chemical. Employees of Rickos quickly came to his assistance and commenced to hose the spilt chemical from the forklift and from the defendant and Rickos' employees who had been splashed by the chemicals when attempting to rescue the upturned container. The hosing action had the effect of washing the spilt chemical into the street gutter and stormwater system. The hosing down action was perpetuated by the local Fire Brigade which had obtained advice to attempt to dilute the chemical. 14 When HAZMAT officers arrived on the scene a little later they terminated the hosing down operation. Soon thereafter the investigating and rescue teams sought to trace the progress in the stormwater system of the spilt chemical but any hope of blocking progress through the system was dashed when rain began to fall which quickly developing into a violent rainstorm event. 15 Nearly the entire 1000 litres of chemical were spilt and progressed via the street gutter and stormwater system into the waters of Prospect Creek, particularly by virtue of the onset of the storm. 16 The chemical was the pesticide "Electra 225" whose active ingredient is methomyl which is highly toxic to aquatic life. The spillage over the course of the ensuing 10 days caused the death of thousands of fish, eels and aquatic life along a nine kilometres stretch of the Creek affected by the pollution. 17 The clean up operation (which took several days) yielded some 3.4 tonnes of dead fish. 18 It is entirely unlikely that any ongoing toxic effects due to methomyl remained in Prospect Creek beyond the initial four weeks after the spillage occurred. Similarly, after that period of four weeks it is extremely unlikely that any detectable trace of methomyl remained in the waters or shore sediment of Prospect Creek. 19 The Statement of Agreed Facts included the following extract under the heading of "Agreed matters in Mitigation": 64. The defendant has no prior environmental offences.

The defendant has priors in relation to non-environmental offences (see attached).

The defendant pleaded guilty to the offence at a relatively early opportunity.

The defendant participated in 2 voluntary records of interview as opposed to an authorised officer compelling him to answer questions under s203 of the Protection of the Environment Operations Act 1997; and

The defendant cooperated fully with the prosecutor.

The defendant provided an affidavit to the EPA in relation to the prosecution of Mr Hopley for water pollution.

The defendant agreed to and he did provide frank and candid testimony during the sentence hearing for Mr Hopley concerning an important issue. That evidence was accepted by the Court and preferred to the evidence of Mr Hopley (see Environment Protection Authority v Hopley [2003] NSWLEC 112). This evidence was important and useful to the prosecutor. 20 In addition to the Statement of Agreed Facts, evidence given by the Defendant establishes the following matters which are relevant to the questions of (i) the Defendant's culpability and (ii) mitigation of penalty:

(i) At the time the offence was committed (February 2002) the Defendant was 27 years old, having been born and raised in Orange where he has enjoyed a good family life. Since leaving school the Defendant completed an electrical apprenticeship and worked as an electrician for seven years before working in the family business (waste disposal) for three years before working as a truck driver (including interstate transport);

(ii) Two transport businessmen in Orange have testified to the Defendant's good character and conscientious work ethic;

(iii) The Defendant has expressed considerable remorse and contrition for his part in the pollution incident - in transporting the dangerous goods he acted against his own better judgment but under the extreme pressure of his employer's instructions; (iv) After the spillage incident the Defendant continued to work for Mr Hopley for 3 ½ months but subsequently was convicted of two separate motor vehicle offences resulting in prison sentences and disqualifications from driving;

(v) The Defendant is burdened by financial debts (more than $20,000 was spent on legal fees in unrelated criminal proceedings brought against him). His current debts exceed $40,000 . He is at present unemployed and is in receipt of a sickness benefit of $190 per week. He is currently suffering from a reactive anxiety depression condition and is under medication. His treating doctor (who has been the family doctor for 16 years) has very recently noted a very significant decline in the psychological health and demeanour of the Defendant following his recent release after serving a six month sentence at the Oberon Correctional Centre being released on parole on 30 July 2003;

(vi) According to the Department of Corrective Services' Pre-Sentence Report ( Exhibit 2 ) the Defendant "presented with a polite and forthright demeanour…" who is assessed as being a suitable recipient of penalty by way of (i) bond; (ii) community service order and (iii) periodic detention order but who has not the financial resources to pay a fine.

(vii) The Defendant is keen to rehabilitate himself and desires to return to the workforce as an electrician - understandably he does not desire to return to a truck driving career. 21 Senior Prosecuting Counsel submitted that the most appropriate penalty in the light of the mitigating facts (but for the existence of which the Prosecutor would have been seeking a sentence of imprisonment) was a community service order. (This was the form of penalty recently imposed by Cowdroy J in Environment Protection Authority v Coggins [2003] NSWLEC 111). The Prosecutor acknowledged that the Defendant's virtual impecuniosity rendered a penalty by the imposition of a fine as being unavailable in a practical sense: see s6 of the Fines Act 1996. 22 Defence Solicitor submitted that the most appropriate penalty in all the circumstances would be a good behaviour bond. Senior Prosecuting Counsel, while conceding that a bond provided a sentencing option, considered that the objective seriousness of the offence involving significant actual environmental harm called for something more stringent than a good behaviour bond. Hence his suggestion of a community service order which would impose some positive obligation on the Defendant (rather than a negative obligation to be of good behaviour during the period of a bond). 23 In my judgment the defendant's culpability in the commission of the offence must be assessed as significantly reduced by virtue of the pressure he felt form his employer to take delivery of the dangerous goods and to transport them to Rickos' depot and to unload them there by using an available forklift, notwithstanding the fact that the Defendant had protested that neither he nor the truck that he was driving were licensed to transport dangerous goods. The fact that the Defendant had only been in the job for two weeks exacerbated the situation of the Defendant and the dilemma created for him by his employer's instructions. Although he could have refused to obey his employer's instructions the outcome of such an attitude would probably have been the loss of his job. This is not to condone the Defendant's decision to act in accordance with his employer's instructions against his own better judgment but it is simply to recognise the realities of the situation from the Defendant's and his employer's perspectives. Although the spillage occurred by the negligence of the Defendant in operating an unfamiliar forklift fitted with unconventional extension arms in a real and controlling sense it was the employer's instruction to the Defendant which invited the risk of a mishap in the handling of dangerous goods. 24 The Defendant's conduct in obeying his employer's instructions to take delivery of the dangerous goods and to transport them to Rickos Depot and temporarily store them there by utilising an available forklift was not however reckless conduct. This is because the Defendant had previously been licensed to transport dangerous goods by road and although not licensed, had had previous experience in driving forklifts. 25 Moreover the spillage incident probably would not have occurred if the Defendant had not had to cope with the forklift with the extension arms (which had been installed without the permission or knowledge of the owner and hirer of the forklift Nissan). Moreover the spillage probably would have been containable by preventative action before entering the waters of Prospect Creek but for the onset of a sudden rainstorm, which flushed the spilt chemical through the stormwater system into the Creek before any preventative action could be taken. 26 In considering what is the appropriate penalty, having regard to the provisions of s241(1) of the POEO Act the crucial considerations to emerge from that evaluation of the facts of the present case are (i) the significant environmental harm actually caused, and (ii) the significantly attenuated criminal culpability of the Defendant by virtue of his conduct in transporting and handling the dangerous goods being influenced, if not dictated, by his employer's instructions given in the face of the Defendant's protests that neither he nor his truck were licensed to transport dangerous goods. Forced to do something against this own better judgment the spillage occurred because of his unfamiliarity with a forklift fitted with unconventional extension arms and the pollution of the waters (and actual harm caused to the environment) occurred by virtue of supervening acts by the fire brigade hosing the chemical spill to dilute it and the sudden rainstorm event flushing stormwaters through the system. 27 In all of the circumstances I consider that a good behaviour bond (for 2 years duration) is the most appropriate penalty given the objective nature of the offence and the Defendant's limited subjective culpability in its commission and having regard to the capacity of the Defendant (financial and psychological) to cope with the penalty to be imposed, in the light of his desire to rehabilitate himself with the strong family support that he enjoys and to return to the workforce but not in the transport industry (thereby eliminating the chance of any repeat offence). 28 The Prosecutor seeks the usual costs order against the Defendant. 29 This application is strenuously resisted by the Defence Solicitor on the grounds that if the Defendant's palpable lack of financial wherewithal is rightly regarded as effectively ruling out the sentencing option of the imposition of a fine, to nonetheless order costs against the Defendant would have the same crushing and unavailing effect of imposing financial obligations upon him. 30 Although the Fines Act 1996 draws a distinction between a penalty imposed upon conviction and a costs order made upon conviction (see the definition of 'fine' in s4) and accordingly the Defendant's means to pay which is a relevant consideration to the imposition of a fine by virtue of s6, is not relevant to the question of making a costs order against the Defendant, this distinction may be considered anomalous and does not dictate the manner in which the Court should exercise its costs discretion. 31 Here the Defence submission is that the discretion conferred upon the Court by s52 of the Land and Environment Court Act 1979 is a real and broad discretion, and notwithstanding the Court's general practice of ordering costs in favour of the successful party, the particular circumstances of the present case justify the Court exercising its discretion to not make any order against the Defendant. 32 In my judgment there are special circumstances in the present case that justify the exercise of discretion in the manner sought by the Defendant. Firstly I have already noted that this spillage incident led to five prosecutions being launched, including two against the Defendant's employer, against whom convictions were recorded, fines were imposed and costs orders in favour of the Prosecutor were made. 33 Having obtained these convictions against the Defendant's employer the Prosecutor today elected to proceed against the present Defendant only in respect of the one charge (the Tier one offence), and to abandon the other charges. 34 Whatever costs may have been incurred by the Prosecutor in relation to the present charge, they are not likely to be significantly additional to the costs incurred in the concluded proceedings against the Defendant's employer and made recoverable by virtue of the costs orders made against the Defendant's employer. Notwithstanding the fact that the Tier one charge is a different charge from the two charges successfully prosecuted against the Defendant's employer the Tier one offence is inextricably bound up in the s120 offence ('pollute waters') and the Prosecutor's cases in respect of those separate offences would inevitably have involved very considerable overlap. 35 In these circumstances and assuming that some additional costs have been incurred by the Prosecutor, in prosecuting the present Defendant, I do not think it appropriate to impose any additional financial burden on the Defendant such as would inevitably result from a cost order made against him. Of course costs orders are made to compensate the successful party and not to punish the unsuccessful party: Latoudis v Casey (1990) 170 CLR 534. However when regard is had to the totality of the events and consequences of this single spillage incident I do not think I should exercise the cost discretion in favour of the successful Prosecutor, because to do so would create a modest benefit for the Prosecutor at the cost of imposing great detriment to the Defendant (in terms of his capacity (financial and psychological) to cope with the burden which could imperil his otherwise good prospects of rehabilitation). 36 For all the foregoing reasons I make the following orders:

1. The Defendant is convicted of the offence as charged.

2. Pursuant to s9 of the Crimes (Sentencing Procedure) Act 1999 the Defendant is directed to enter into a good behaviour bond for a term of 2 years - an appropriate form of such bond is to be filed in the Court within 14 days of today.

I HEREBY CERTIFY THAT THE PRECEDING 36 PARAGRAPHS ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT OF THE HONOURABLE JUSTICE N R BIGNOLD.

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