(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: