Environment Protection Authority v Coggins - [2003] NSWLEC 111 - NSWLEC 1991 case summary — Zoe

NSWNSWLEC

Environment Protection Authority v Coggins

[2003] NSWLEC 111

Land and Environment Court (NSW)|1991-11-01|Before: Cowdroy J, Bignold J

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Source facts

Court

Land and Environment Court (NSW)

Decision date

1991-11-01

Before

Cowdroy J, Bignold J

Source

Original judgment source is linked above.

Judgment (37 paragraphs)

[1]

CITATION : Environment Protection Authority v Coggins [2003] NSWLEC 111 PROSECUTOR Environment Protection Authority PARTIES : DEFENDANT Craig Coggins FILE NUMBER(S) : 50129 of 2001; 50130 of 2001 CORAM: Cowdroy J KEY ISSUES: Prosecution :- toxic chemicals discharged into waterway - plea of guilty - assessment of penalty - sentencing principles - general deterrence - character evidence - co-operation with law authorities Crimes (Sentencing Procedure) Act 1999, s 3A, s 8(2), s 10, s 21A, s 22, s 22A, s 23, s 86, Sch 2 cl 45 Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 LEGISLATION CITED: Crimes (Sentencing Procedure) Regulation 2000, cl 23 Land and Environment Court Act 1979, s 52 Protection of the Environment Operations Act 1997, s 116, s 119, s 120, s 241, s 246, s 247 Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357; Cameron v R (2002) 76 ALJR 382; Environment Protection Authority v Ecolab Pty Limited (2002) 123 LGERA 269; Environment Protection Authority v Rail Infrastructure Corporation (2002) 119 LGERA 409; Environment Protection Authority v Warringah Golf Club [2003] NSWLEC 140; Maxwell v The Queen (1995) 185 CLR 501; CASES CITED: R v Storey [1998] 1 VR 359; R v Thomson; R v Houlton (2000) 49 NSWLR 383; Regina v Jenkins [1999] NSWCCA 110; Regina v O'Neill [1979] 2 NSWLR 582; Ryan v The Queen (2001) 206 CLR 267; State Pollution Control Commission v White Wings Limited (Bignold J, Land and Environment Court, 1 November 1991, unreported); T v R (1990) A Crim R 29; The Queen v Olbrich (1999) 199 CLR 270 DATES OF HEARING: 28/04/2003; 29/04/2003; 30/04/2003; 01/05/2003 DATE OF JUDGMENT: 06/20/2003

[2]

[11]

5 At all relevant times the defendant was engaged as the course superintendent for Warringah Golf Club Limited ("the Club"). On Friday 9 February 2001 a grounds person noticed that an insect pest which was suspected to be the Argentine Stem Weevil was causing damage to the fifth green on the golf course. It was essential to spray the green with an insecticide to prevent the spread of the insect to other areas. For this purpose the Club kept various pesticides, including Gusathion, in its workshop area which is located on the golf course in close proximity to Brookvale Creek ("the creek"). 6 For the purposes of spraying such insects the Club had a spray unit which comprised a tractor equipped with tanks and spray hoses. On the afternoon of 9 February 2001 the defendant instructed another employee to fill the tanks on the spray unit with approximately 20 litres of water to enable Gusathion to be added. The defendant obtained Gusathion from the chemical store within the workshop and poured it to the tanks on the spray unit. Another employee, Ms Toni Nolan, attempted to use the spray unit on the golf course but it failed to spray. Accordingly it was returned to the workshop area. 7 On Monday 12 February 2001 another Club employee Mr Ben Hansen was instructed by the defendant to spray the greens with the spray unit. The Gusathion and water mixture ("the chemical solution") was still in the tanks of the spray unit since Friday 9 February 2001. Mr Hansen commenced to use the spray unit and despite some mechanical problems with the spray unit was able to spray seven of the greens. However the mechanical problem which manifested itself on the previous Friday afternoon recurred. After an adjustment was performed, Mr Hansen was able to spray another three greens but at approximately 9am the spray unit failed completely. Mr Hansen drove it to the workshop and parked it on a concrete slab in the workshop area to enable repairs to be effected. Mr Hansen and another employee John Edwards, attempted to rectify the defect and the defendant joined them. After unsuccessful calls to the manufacturer concerning the fault, the defendant decided that it was necessary to disconnect one of the hose lines and to drain the tanks to determine the location of the blockage. Accordingly the defendant instructed Mr Hansen to remove the hose line. Mr Hansen did so causing the chemical solution to flow across the concrete slab. 8 To remove the chemical solution from the concrete slab the defendant hosed the liquid from the slab. The chemical solution then moved along a depression in the ground adjacent to the concrete slab until it met a grated stormwater drain which led directly into the creek. The creek is connected to Manly Lagoon ("the Lagoon"). The chemical solution entered the drain and the creek and ultimately migrated into the Lagoon resulting in the destruction of marine life and birds. 9 Gusathion is no longer registered with the National Registration Authority for Agriculture and Veterinary Chemicals but it was still legal to use Gusathion at the time of the offence. The active ingredient of Gusathion is azinphos-ethyl. Azinphos-ethyl is a phosphorodithioate orgamophosphorus pesticide, which is toxic because it inhibits the enzyme acetylcholine esterase. This results in muscular weakness and paralysis. When handling Gusathion personal protective equipment should be worn. 10 Dr Crank, consulting chemist and toxicologist, deposed in his affidavit sworn 9 April 2003:-

[20]

19 Over a prolonged period the defendant and another Club employee, Mr Edwards, tried unsuccessfully to have the Club install bunding around the concrete slab in the workshop area. Bunding would have prevented any substance such as chemicals or other pollutants from draining into stormwater grates located near the complex. Had bunding been in existence it is likely that the discharge into the creek would have been prevented. 20 The installation of the bunding is a practical measure that the Club, rather than the defendant, may have taken "to prevent, control, abate or mitigate" the harm to the creek and Lagoon. The Court is not concerned in these proceedings with the Club's actions or omissions. However such evidence establishes that the defendant was well aware that great care was required when handling chemicals in the workshop area because adequate environmental precautions were not in place. 21 There is no evidence to prove that the defendant undertook any practical measures to prevent the environmental harm. The defendant acknowledged one possible practical measure which he could have adopted when he initially responded to the enquiries of an investigating council officer, Mr Ingham. The defendant informed Mr Ingham that he disconnected and cleaned the spray unit on the golf course. In fact such account was false, but it demonstrates that harm could have been avoided if the defendant had inspected the spray unit on the golf course rather than in close proximity to the drain. Additionally the defendant could have placed a receptacle or container beneath the spray unit into which the chemical solution could flow before the hoses were disconnected. (c) Foreseeability of harm caused or likely to be caused to the environment 22 The Court must consider the extent to which the defendant could reasonably have foreseen the harm which was caused or likely to be caused by the commission of the offence. 23 The machinery workshop area was located between 10 and 15 metres from the bank of the creek. Two drains extended from a point 2.25 metres to the east of the edge of the concrete slab where the spray unit was undergoing repair. Sandy soil lay between the grated drains and the edge of the concrete slab. The defendant knew that the drains led to the creek from his involvement with the Brookvale Creek Rehabilitation Works project. The defendant was a member of the project's management committee formed during 2000 to oversee the objectives of this project. One object was directed to the improvement of the water quality in the creek and wildlife habitat and the reduction of creek bank erosion. The defendant contributed to the committee's discussions relating to the construction of new stormwater pits to connect two newly discovered stormwater pipes located in close vicinity to the workshop area. Accordingly the defendant, by his participation, demonstrated that he must have had an awareness of environmental issues relating to the creek. 24 The defendant has testified that when hosing the former concrete slab he directed the water in a northerly direction, namely at right angles to the location of the grated drains. The defendant disputes the allegation by the prosecutor that there was a drainage line at the northern end of the concrete slab leading to the northern most stormwater grate. However it is apparent that the water from the hosing operations mixed with Gusathion was able to travel from the concrete slab towards the grated drain by means of a depression in the surface of the ground.

[24]

28 The Court must take the defendant's guilty plea into account (s 22 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act")) but it is not mandatory for the Court to exercise its discretion to provide a reduction in sentence for a guilty plea: see Cameron v R (2002) 76 ALJR 382 per Kirby J at p 393. The Court will consider the circumstances of each case and decide whether the plea reflects genuine remorse and has been beneficial from a utilitarian perspective: see R v Thomson; R v Houlton (2000) 49 NSWLR 383 at p 415. 29 In these proceedings the defendant did not plead guilty until at least six months had elapsed following disclosure of the prosecutor's case. In Thomson at p 415 Spigelman CJ observed that the rationale for reducing the penalty from a utilitarian perspective is to save "…considerable expenditure… incurred by the prosecution…", in addition to preparing witnesses and Court resources. By such a delay the prosecutor has incurred expense in the preparation of its case. 30 Despite his plea of guilty the defendant has made it apparent during his oral testimony that he does not regard himself solely to blame for the environmental damage resulting from the offence. The defendant refers particularly to the failure on the part of the Club to install the appropriate bunding around the workshop area. The defendant maintains that the Club rejected the requests to provide bunding. In response, the management of the Club declined such claiming that there were insufficient funds for such purpose. 31 The defendant also attributed blame to other persons as being responsible for the offence. The Court cannot make any findings against other parties. It can however take into account the physical state of the premises and can also consider whether there should be some recognition of the fact that the premises were deficient in their environmental protection measures. There is no evidence before the Court that any other person was responsible for the events of the 12 February 2001 when the spillage occurred. It is inferred therefore that the defendant's guilty plea is a very "simple expression of remorse.": see R v Thomson at p 412. 32 The range of discount on sentence has been held to be 10% to 25% for a guilty plea: see R v Thomson at p 418. The Court grants the defendant a discount at the lower end of this range.

[30]

42 Many character references have been tendered in support of the defendant. In addition the Court observes that the defendant has served as a lifesaver with North Palm Beach Lifesaving Club and has been recognised for an act of public bravery. The defendant has actively participated in the Clean Up Australia campaigns for the benefit of the community. The defendant, but for this offence, has proven to be a responsible citizen, and a person who has been held in the highest regard by his peers. The defendant's antecedents, good character and employment record mitigate heavily in his favour. Consequences of the offence 43 The defendant has incurred expanses of $220,000 for legal advice relating to these proceedings, investigations of the fish kill and the unfair dismissal proceedings. The defendant has been obliged to sell his house in Sydney and to relocate his family to less expensive accommodation near Coffs Harbour with financial assistance provided by relatives. The defendant's parents, who are retired have lent $100,000 to help fund the defendants legal costs. The defendant has been unable to find employment, and has earned a negligible income in the last financial year from a landscaping venture. His wife had to resign from her employment in Sydney, where she worked as a librarian. The defendant's two children, aged 13 and 16, have been placed in new schools and in a new environment. The defendant's daughter has a tumour on her optic nerve and requires continual medical assessment. The defendant has suffered severe emotional stress as a consequence of the offence, which has been exacerbated by his sentiment that he has been a scapegoat for the actions of other persons. 44 The Court acknowledges that the defendant and his family have had to alter their lives as a result of the offence. However, such changes do not constitute extreme and exceptional hardship: see T v R (1990) A Crim R 29 at p 40 wherein Gleeson CJ in said at p 40 that "the hardship must be so "extreme" - going so far beyond the sort of hardship which inevitably results to a family when the breadwinner is imprisoned" to warrant a sentencing judge to be more lenient. His Honour gave an example of such hardship being "where a wife is mentally ill and is at risk of suicide unless supported by the companionship of the offender." The Court acknowledges the changes in the defendant's personal life following the offence, but these circumstances do not constitute extreme or exceptional hardship. Accordingly, the impact of the consequences of the defendant's conduct upon his family does not mitigate the defendant's sentence. The extent of the defendant's co-operation 45 The prosecutor initially submitted that the defendant had not co-operated with the investigators. When the environmental damage resulting from the offence was discovered the defendant was interviewed and gave a false account of the circumstances leading to the offence. The Court is satisfied that the defendant, provided the false account because of his fear of the consequences of his actions, and thereby sought to exculpate himself. To his credit, he confessed within a matter of days that the account was not true. 46 A disputed issue remains concerning the prosecutor's allegation that the defendant attempted to conceal two empty 5 litre cans which had allegedly contained the Gusathion. The evidence establishes that the two 5 litre cans were lying in a waste compactor bin on the morning of Tuesday 13 February 2001. Ian Gregory Birrell, a groundsman of the Club, observed the defendant climbing into the compactor bin and removing two cans, one of which Mr Birrell identified as having held Gusathion. Mr Birrell then observed the defendant place the cans in the boot of his car. Ms Nolan observed the defendant use a stick to reach into the compactor bin and pull out a can. Later she saw him carrying two 5 litre containers. 47 The prosecutor asks the Court to draw the inference that the defendant deliberately attempted to hide the Gusathion containers. The defendant, however, has testified that he climbed into the compactor bin to retrieve a rubbish bin which he had accidentally dropped. 48 The evidence of the two prosecutor's witnesses is conflicting. Ms Nolan did not testify that the defendant climbed into the compactor bin and she noticed him retrieving only one can. Mr Birrell, in contrast, testified that the defendant climbed into the bin and retrieved two cans. Mr Birell did not observe the defendant using a stick to retrieve any cans. 49 The Court must be satisfied beyond reasonable doubt of any fact adverse to the defendant: R v Storey [1998] 1 VR 359 at p 369 confirmed in The Queen v Olbrich (1999) 199 CLR 270 at p 281. Against the factual discrepancies relating to the witnesses' observations and the evidence of the defendant, the Court is not satisfied according to the requisite standard of proof that he attempted to conceal the empty containers of Gusathion as alleged. 50 These proceedings were re-listed at the request of the prosecutor after the hearing for the purpose of informing the Court that the defendant had assisted the prosecutor in related proceedings. Despite such co-operation the Court considers that the defendant did not make significant pre-trial disclosures or adequately assist the authorities in their investigations of the offence to warrant a discount of penalty which might be allowed pursuant to s 22A and s 23 of the Sentencing Procedure Act.

[32]

Summary 53 Offences against s 116 of the POEO Act are considered by the Legislature to be within the tier of most serious environmental pollution offences. This is reflected by the prescribed maximum penalty for this offence. Such a substantial fine is also intended to deter others engaged in similar activities from committing environmental offences "and to procure that they will take the precautions necessary to ensure" such incidents do not occur: see Axer at p 359. In this instance it is particularly important to signify to employees, and their employers that environmental precautions must be taken when handling toxic chemicals. 54 The Court rejects the submission made by senior counsel for the defendant that a conviction should not be recorded. Severe environmental damage, especially the fish kill, resulted from the defendant's criminally negligent actions. In the defendant's favour, the Court notes that the extent of damage was not permanent and was exacerbated by the poor quality of waters in the Lagoon. 55 The defendant has pleaded guilty to the charge and thereby has expressed, to a limited extent, his contrition for the offence. The Court finds that the offence arose as a result of an act of negligence and was committed without intent or malice. The defendant has otherwise been of an exemplary character and has proven to be a responsible citizen. 56 The defendant regards himself as a victim of the Club's failure to provide proper environmental safe guards. The Court notes that Talbot J has convicted the Club in respect of a charge brought pursuant to s 116(2) of the POEO Act (see: Environment Protection Authority v Warringah Golf Club [2003] NSWLEC 140). His Honour said at par 92:- The Court finds beyond reasonable doubt that the club itself breached its duty to take reasonable steps to avoid or minimise harm to the environment. It negligently, and in the material respect, contributed to the conditions that gave rise to the commission of the offence of Mr Coggins. 57 The prosecutor acknowledges that the imposition of a financial penalty would be inappropriate in view of the defendant's lack of means and his current unemployment. The prosecutor also submits that a term of imprisonment would be unsuitable.