Environment Protection Authority v Jolly's Pest Control Pty Ltd - [2003] NSWLEC 398 - NSWLEC 1986 case summary — Zoe

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Environment Protection Authority v Jolly's Pest Control Pty Ltd

[2003] NSWLEC 398

Land and Environment Court (NSW)|1986-11-06|Before: Cowdroy J, Smart J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

1986-11-06

Before

Cowdroy J, Smart J

Source

Original judgment source is linked above.

Judgment (11 paragraphs)

[1]

Introduction 1 The defendant is charged with an offence under s 120(1) of the Protection of the Environment Operations Act 1997 ("the PEO Act"). The particulars of the charge state that the defendant placed a pesticide in a position where it descended or was likely to descend or was washed and/or percolated or was likely to be washed into a stormwater drain on or about 27 March 2002. The pesticide contained bifenthrin and/or chlorpyrifos-ethyl. The stormwater drain was located under a stormwater entry point on the driveway of premises at 552 Englehardt Street, Albury ("the site"). 2 The prosecutor instituted these proceedings by summons filed on 21 March 2003. The defendant entered a plea of guilty on 2 June 2003. Accordingly the Court is only required to determine the appropriate penalty.

[2]

3 The offence was committed against s 120(1) of the PEO Act as in force on 18 July 2000, which provides that a person must not pollute any waters. The maximum penalty for such offence if committed by a corporation is provided by s 123(a) of such Act. Section 123(a) relevantly provides:- s123 Maximum penalty for water pollution offences A person who is guilty of an offence under this Part is liable, on conviction: (a) in the case of a corporation - to a penalty not exceeding $250,000 and, in the case of a continuing offence, to a further penalty not exceeding $120,000 for each day the offence continues, or Facts 4 The defendant is a company which conducts the business of pest control primarily at domestic premises in the Albury region. Mr Maxwell Jolly is a director of the defendant. Mr Phillip Jolly is Mr Maxwell Jolly's son and an employee of the defendant. A stormwater entry point ("the stormwater entry point") on the driveway at the site captures surface water running down the driveway of the dwelling at the site. 5 The stormwater entry point is situated approximately one and a half metres from the street entry of the driveway. The stormwater entry point is about 100 millimetres to 150 millimetres in diameter and it leads to a council stormwater drain running in an east west direction along Englehardt Street. The stormwater drain flows from Englehardt Street towards Bungambrawatha Creek which is located at the end of Englehardt Street and approximately a few hundred metres from the site. From the Bungambrawatha Creek the Murray River is distant 500 metres. 6 On 27 March 2002 Mr Phillip Jolly was carrying out pest spraying activities at the dwelling at the site. Mr Jolly was using a pesticide known as Biflex. The Environment Protection Authority ("the EPA") offices at Albury are located on the fourth floor in a building at 553 Kiewa Street, Albury. The EPA offices have a view over domestic and commercial properties in Englehardt Street including the site which is located directly below the windows of the EPA offices.

[3]

7 On 27 March 2003 two officers of the EPA, Mr Frank Robinson and Mr Mark Enright, were in the EPA offices and noticed a man using a spray gun hose to spray a liquid upon the walls of the dwelling at the site. The EPA officers initially thought the operator was washing the walls due to the large volume of liquid being used. The liquid had a foamy opaque white appearance and was forming a puddle around the base of the dwelling and the fence line along the driveway of the site. The EPA officers noticed a vehicle and attached trailer parked in the driveway. The sign writing on the trailer read "Jolly's Pest Control". Ten minutes later the EPA officers saw a man finish spraying and leave the site in the vehicle and trailer. 8 Once the vehicle and trailer had left the site the EPA officers noticed the stormwater entry point which had previously been hidden by the vehicle and the trailer. The EPA officers noticed there was a trail of a liquid lying in a dish drain on the on the side of the driveway and that this liquid was trailing directly towards the stormwater entry point. 9 The EPA officers took photographs from the EPA offices and then inspected the site. They noticed that the liquid had entered the stormwater drainage system and had travelled to a bend in the drain. One of the officers, Mr Frank Robinson, took samples of the liquid which revealed bifenthrin and chlorpyrifos-ethyl was present in the liquid. The EPA officers then contacted the defendant and it was confirmed that Mr Phillip Jolly had undertaken work at the site in accordance with the defendant's business. The EPA officers contacted Albury Council and arranged, with the co-operation of the defendant, for the liquid to be pumped out of the stormwater drainage point and also out of the stormwater pit located downstream of the site, on the corner of Englehardt Street and Victoria Street. 10 It is agreed by the parties that the cause of the offence was due to a mistake by Mr Phillip Jolly while he was carrying out pesticide spraying at the site. Mr Phillip Jolly had parked the vehicle and trailer in the driveway of the site over the drain and had not surveyed the site properly. He had not checked under the vehicle and trailer for any stormwater entry points before spraying. The stormwater entry point was not bunded or sandbagged providing no barrier to the pesticide. 11 The parties agree that bifenthrin and chlorpyrifos-ethyl was present in the pesticide. The trailer attached to the vehicle had two tanks of pesticide known as Biflex and Country. The active ingredient of Biflex is bifenthrin and Country contains chlorpyrifos-ethyl. The spray gun that was used for the spraying can be utilised interchangeably between the two tanks. Accordingly, there was also chlorpyrifos-ethyl in the lines of the hose.

[6]

Even in the case of an offence of strict liability, no public purpose is served by recording a conviction or imposing a penalty in circumstances where the relevant accused could not, as a matter of practical reality, have done anything to ensure that the offence or, in the case of a result offence, the adverse consequence of the conduct, did not occur. 15 The Court is satisfied that the defendant could have taken measures to avoid this offence. Penalty 16 The Court must consider the matters stipulated in s 241 of the PEO Act. To ascertain the seriousness of the offence and the penalty, the Court will consider each issue in turn except for s 241(1)(e), which is not relevant in these proceedings. Extent of the environmental harm 17 Section 241(1)(a) of the PEO Act requires the Court to consider the extent of the harm caused or likely to be caused to the environment by the offence. It has been established that the word "likely" in the context of water pollution has been held to mean "a real and not remote chance or possibility regardless of whether it is less or more than a fifty per cent chance": see Matthews v Goulburn Wool Processors Pty Limited (Smart J, Supreme Court of New South Wales, 6 November 1986, unreported) at p 15, and has been adopted in recent decisions. See Environment Protection Authority v Anning, (1998) 100 LGERA 354 and p 359. 18 Dr Ross Vincent Hyne, the prosecutor's principal research ecotoxicologist deposed in his affidavit sworn 1 May 2003, that the concentrations of bifenthrin and chlorpyrifos-ethyl in the drainage system running along Englehardt Street on 27 March 2002 were adequate to cause environmental damage even after dilution. The persistence of bifenthrin and chlorpyrifos-ethyl found in the soil in the drainage system would be enough to ensure potential environmental impact. Such impact would have remained for several months after the incident of 27 March 2002. Dr Hyne deposed that the chemicals used, namely, bifenthrin and chlorpyrifos-ethyl were highly toxic to marine life. Approximately 7 grams, (or the equivalent of two teaspoons) of chlorpyrifos-ethyl in an Olympic swimming pool being 50 metres long by 25 metres wide by 2 metres deep, would be sufficient to destroy the majority of marine life. Dr Hyne deposed that if the pesticide had not been removed from the stormwater drainage system along Englehardt Street, it was likely that high concentrations of a pesticide would have entered the Murray River.

[7]

The measures to prevent control or abate or mitigate that harm 19 The Court must consider any measures taken to prevent, control, abate or mitigate environmental harm pursuant to s 241(1)(b) of the PEO Act. An inspection of the site prior to any spraying would have revealed the presence of the stormwater entry point and the inference could readily be drawn that it was connected to a drainage system. The stormwater entry point could have been bunded to prevent any pesticide escaping down the drainage system. Accordingly measures could have been taken to avoid the harm. Reasonable foreseeability 20 Section 241(1)(c) of the PEO Act requires the Court to consider "the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence". It was reasonably foreseeable that the spraying pesticide could enter the stormwater drainage system and into creeks leading to the Murray River if proper measures were not taken. Control over the causes of a pollution 21 The Court is required to take into account the extent to which the defendant had control over the causes that gave rise to the offence pursuant to s 241(1)(d) of the PEO Act. 22 The defendant through Mr Phillip Jolly had control over the spray unit and the spraying of the pesticide. There is no evidence to suggest that there were any other factors reducing the defendant's control over the causes of the pollution. Guilty plea 23 The Court must take the defendant's guilty plea into account pursuant to s 22 of the Crime (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 The Queen (2002) 209 CLR 339. The Court will consider the circumstances of each case and decide whether the plea reflects genuine remorse and has been of beneficial effect from a utilitarian perspective: see R v Thomson; R v Houlton (2000) 49 NSWLR 383 at p 415. 24 The timing of the plea has a significant bearing on the amount of the discount: see Thomson per Spigelman CJ at p 418. Kirby J confirms such a principle in Cameron wherein His Honour stated at p 359:- In many cases such feelings of repentance will continue and manifest themselves in an early plea of guilty that is adhered to at the trial. Obviously, the timing of any plea of guilty has a large bearing on the credit that should be given to the prisoner(59). A plea of guilty at the last moment (as on the day set down for the trial) will ordinarily attract a smaller discount in sentence than one that is entered at the first reasonable opportunity (60) . But even a belated plea will normally attract a discount.