Environment Protection Authority v Jolly's Pest Control Pty Ltd

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.

12 The offence pursuant to s 120(1) of the PEO Act is one of strict liability: see Woodward (for and on behalf of the State Pollution Control Commission of New South Wales) v Cleary Brothers (Bombo) Pty Ltd (1984) 54 LGRA 409 at p 413; Newcastle City Council v Pace Farm Egg Products (2002) NSWLEC 66 at par 56. 13 In State Pollution Control Commission v Tiger Nominees Pty Ltd and Another (1991) 72 LGRA 337 at p 342. Hemmings J referring to s 16 of the now repealed Clean Waters Act 1970, which is now embodied in s 120 of the POE Act, said:-

It is well-established in this Court that s 16 creates an offence of strict liability in respect of which mens rea, knowledge or negligence are not ingredients. Accordingly, the issue of negligence is not an element of the offence and is irrelevant. 14 In matters involving strict liability offences it is pertinent for the Court to consider whether the defendant could have prevented the offence. That is, could the defendant have done something "directly or indirectly by supervision or inspection, by improvement of his business methods or by exhorting those whom he may be expected to influence or control" to avert the offence: see the judgment in Lim Chin Aik v The Queen [1963] AC 160 delivered by Lord Evershed at p 174. The rationale was explained by Spigelman CJ in Thorneloe v Filipowski (2001) 52 NSWLR 60 at pp 74-75 as follows:-

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.

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.

(59) R v Holder (1983) 3 NSWLR 245; R v Bulger (1990) 2 Qd R 559. (60) cf R v Dodge (1988) 34 A Crim R 325 at 331; R v Heferen (1999) 106 A Crim R 89 at 92 [12]; R v Thomson (2000) 49 NSWLR 383 at 414-415 [132]. 25 The defendant entered a plea of guilty on 2 June 2003 which is reasonably close to the date these proceedings were instituted in March 2003. Accordingly the Court will recognise the early plea and discount the penalty appropriately. 26 The defendant co-operated through Mr Phillip Jolly and Mr Maxwell Jolly with investigating authorities and volunteered to participate in an interview with officers of the prosecutor. The sentence imposed will be mitigated in recognition of such co-operation: see s 21A(3)(m) and s 23 of the Sentencing Procedure Act. No prior convictions 27 The defendant has no prior convictions and the Court can take this into account as a mitigating factor pursuant to s 21A(3)(g) of the Sentencing Procedure Act. Deterrence 28 The Court is conscious that penalties for pollution offences operate as a general deterrent. In Axer Pty Ltd v Environmental Protection Authority (1993) 113 LGERA 357, Mahony JA said at p 359:- In the end, the object of the legislation is to prevent pollution and to do this, inter alia, by the deterrent effect of a substantial fine and by, in consequence, persuading the industries concerned to adopt preventative measures.

In this instance the penalty to be imposed by the Court will contain a component for deterrence. 29 The defendant is a company operated by one family. The annual gross income of the defendant after wages and other expenses has resulted in an operating profit of $32,000 before tax. Mr Maxwell Jolly's drawings are $400 per week. The trading conditions have been difficult as a result of the drought. Mr Maxwell Jolly's home is mortgaged. His work vehicles are leased and the defendant has an overdraft of $15,000 which is usually fully drawn.

30 The Court finds that the offence occurred as a result of inadvertence and that no environmental harm has actually been caused. The likelihood of such harm existed but for the prompt action by the prosecutor and by the defendant. These matters mitigate heavily by the defendant, as does the co-operation provided by it and the early plea of guilty. The Court also notes the defendant has offered to pay the prosecutor's costs. Although there is no agreement as to the quantum of costs it is expected to amount to approximately $8,000. The Court considers the appropriate penalty is $10,000. It will be reduced to $7,500 in view of the matters referred to in the preceding paragraphs. Orders 31 The Court orders that:- 1. The defendant be found guilty as charged; 2. The defendant pay a fine of $7,500; 3. The defendant pay the prosecutor's costs pursuant to s 52(2) of the Land and Environment Court Act 1979. 4. The exhibits be returned.

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