Environment Protection Authority v Rohan John Williams

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999, s 3A(b), 10(1)(a), s 21A(2)(i), s 21A(3)(a), s 21A(3)(e), s 21A(3)(f), s 21A(3)(g), s 21A(3)(i), s 21A(3)(k), s 21A(3)(m), s 22(1), s 23(2). Pesticides Act 1999 s 4, s 5, s 5(2), s 10(1)(a), s 109 (1)(a), s 109(1)(b), s 109 (1)(c), s 109 (1)(d), s 109(1)(e), s 109(1)(g).

Axer Pty Limited v Environmental Protection Authority (1993) 113 LGERA 357; Byers v Leichhardt Municipal Council [2006] NSWLEC 82; CASES CITED: EPA v Barnes [2006] NSWCCA 246; R v Gallagher (1991) 23 NSWLR 220; R v Thomson; R v Houlton (2000) 49 NSWLR 383

PROSECUTOR Mr D Jordan (barrister) SOLICITORS LEGAL REPRESENTATIVES: Environment Protection Authority DEFENDANT Mr A Djemal (barrister) SOLICITORS Flower Legal Pty Ltd

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

ENVIRONMENT PROTECTION AUTHORITY V ROHAN JOHN WILLIAMS (also known as ROWAN JOHN WILLIAMS)

1 HIS HONOUR: Mr Rohan Williams is charged under s 10(1)(a) of the Pesticides Act 1999 that he used a pesticide in a manner that injured or was likely to injure another person. Mr Williams has pleaded guilty to the charge. The Court's task is to determine the appropriate sentence. The use of the pesticide and the injury 2 Along the Riverina Highway between Deniliquin and Finlay lies a wheat farm. In September 2004, the wheat crop on this farm was affected by striped rust. An agronomist advised the farmer the crop needed to be treated with a fungicide. The only practical means of application was by aerial spraying. The recommended fungicide had the trade name of "Folicur". The effectiveness of the fungicide could be enhanced by adding an adjuvant which is another chemical. The recommended adjuvant had the trade name of "Hasten". 3 The farmer contracted an agricultural aviation company, Leafair Pty Ltd trading as Super Spread Aviation, to spray the affected wheat crop. The defendant, Mr Rohan Williams, was an agricultural pilot employed by the company. 4 On 14 September 2004, Mr Williams carried out aerial spraying of the affected wheat crop with the chemicals Folicur and Hasten. Work started between 8.00 and 9.00am and progressed throughout the day. One of the paddocks sprayed in the afternoon was on the southern side of the Finlay-Deniliquin Road. That paddock is known at "Q737B". Mr Williams sprayed that paddock at about 2.30-2.45pm. 5 The Finlay-Deniliquin Road is quite a busy road. There was traffic throughout the period of aerial spraying. During the time of spraying paddock Q737B, one of the vehicles that was travelling on the road was driven by Ms Raelene Wilson. 6 Ms Wilson was driving past paddock Q737B at the same time Mr Williams was spraying. 7 Ms Wilson saw Mr Williams' plane spraying the paddocks on the left or southern side of the road. She saw the plane fly over the paddocks towards the road and turn back towards the paddocks it had just sprayed. The plane turned above the road in front of Ms Wilson. As the plane came toward Ms Wilson and before it turned, Ms Wilson could see a thick white mist coming from the underside of the plane. 8 Ms Wilson had the windows of her vehicle closed but the air vents were open and facing up. The air conditioning was not on. 9 As Ms Wilson approached the place where she had seen the plane turn, she experienced a "really bad taste" in her mouth. She described it as a chemical taste. A couple of seconds later, the front windscreen of her vehicle was covered in a white liquid material. This was so thick Ms Wilson had to put wipers and washers on to be able to see where she was going. 10 The taste in her mouth became more intense and more disgusting. The chemical taste was still present. Ms Wilson immediately felt most unwell. She felt dizzy. 11 Ms Wilson drove on to Deniliquin which was about 10 kms away. On arrival, just before 3.00pm, she went to her work place and obtained a drink of water to cleanse her mouth. She felt like something was stuck on her teeth and tongue as she drank the water. 12 The unwell feeling developed into nausea and further dizziness. A headache developed along with an increase in her heart rate. She felt like she wanted to vomit. 13 Ms Wilson reported the incident to the Environment Protection Authority. A person from the EPA told Ms Wilson to visit her doctor. Ms Wilson visited her general practitioner, Dr Liebenberg. While waiting in the waiting room at the doctor's surgery, her nausea became worse. She had to go outside to the fresh air. The chemical taste was still present in her mouth, although not as intense as it was earlier. Ms Wilson reported to Dr Liebenberg that she had suffered from irritation in her upper airways, slightly blurry vision and a dry mouth. 14 Dr Liebenberg noted that by the time he examined Ms Wilson, most of the symptoms had dissipated. He did not offer any treatment. He recommended she go home and rest. Ms Wilson followed that advice. Ms Wilson parked her vehicle undercover in a carport. 15 The next day, 15 September 2004, Mr Frank Robinson from the EPA visited Ms Wilson. He took samples from the exterior of the vehicle. Those samples were analysed and shown to contain a chemical called Tebuconazole, the active constituent of Folicur. 16 On 16 September 2004, Mr Robinson visited paddock Q737B. He took samples of the soil surface and vegetation in the paddock and across the highway to the north. These samples were analysed and found to contain Tebuconazole. 17 The Material Safety Data Sheet for Folicur lists the potential health effects of Folicur as follows: Inhalation - harmful if inhaled; Skin Contact - will irritate the skin; Eye Contact - will irritate the eyes; Ingestion - harmful if swallowed. 18 Mr Philip Cantrell, a senior project officer with the Chemical Exposure Unit of WorkCover NSW states that a person subject to acute exposure to Folicur could be expected to show one or more of the following symptoms: nausea, vomiting, diarrhoea, abdominal pain and a burning sensation in the mouth. In Mr Cantrell's opinion, Ms Wilson's symptoms of a disgusting taste in her mouth and blurry vision are entirely consistent with someone who has been exposed to a spray emulsion of Folicur and Hasten. The offence 19 The chemical Folicur is a pesticide within the meaning of that word in s 5 of the Pesticides Act, even when mixed with Hasten: s 5(2). The injury caused to Ms Wilson's health by exposure to the spray emulsion is an "injury" within s 4 of the Act. Mr Williams, being the agricultural pilot who sprayed the emulsion, used the pesticide within the meaning of that term in s 4 of the Act. Mr Williams' use of the pesticide injured Ms Wilson. Mr Williams is therefore guilty of the offence against s 10(1)(a) of the Act of using a pesticide in a manner that injures or is likely to injure a person. The maximum penalty for an offence against s 10(1)(a) of the Act is $60,000 for an individual. Matters to be considered on sentence 20 The Court is required to take into consideration in imposing the penalty various matters specified under s 109 of the Pesticides Act and s 21A of the Crimes (Sentencing Procedure) Act 1999. I will first deal with such of the matters in s 109(1) of the Pesticides Act that are relevant. I will then address the factors, both aggravating and mitigating, of relevance under s 21A(2) and (3) of the Crimes (Sentencing Procedure) Act 1999. Extent of Injury 21 Ms Wilson was injured. The injury was caused by the use of the pesticide. The injury to Ms Wilson was acute and short term. There was no permanent effect: see s 109(1)(a) of the Pesticides Act and s 21A(3)(a) of the Crimes (Sentencing Procedure) Act 1999. Practical measures

22 Mr Williams is a qualified and licensed agricultural pilot. He had been, at the time of the offence, an agricultural pilot for 5 years. He held a Pilot (Pesticide Rating) Licence and a Certificate of Approval from the Aerial Agricultural Association of Australia. He had been a commercial pilot for a longer period. 23 On the day of the job, initially Mr Williams predicted the day would be too windy and there was a possibility of rain. However, just after 8.00am the wind lessened in strength and the weather cleared to become suitable for aerial spraying. Before flying, Mr Williams conducted a detailed daily inspection of the aircraft that included a leak test of the hopper dump door. No leaks were found. No further inspections for leaks were carried out throughout the day. In conducting the north-south passes of paddock Q737B, Mr Williams stopped spraying 50 metres south of the edge of the crop. Mr Williams continued over the highway, turning above the channel running parallel to the north of the highway. 24 Notwithstanding the taking of precautions, evidently spray drift occurred at the time that Ms Wilson was driving her vehicle. Mr Williams believes that this incident occurred by the leaking of the hopper in the aircraft that contained the liquid pesticide. The hopper was designed to carry pesticides in a solid form not in a liquid form. The door to the hopper was adequate to close firmly to keep solids in but was not designed to seal against liquids. Leakage of liquid pesticide particularly from the hopper, had been a recurring problem for the aircraft. Various methods had been attempted to control leakage, including tightening the clamps underneath the dump door and installation of a foam gasket to the sealing surfaces of the dump door. But the leakage continued. Mr Williams believes that although the hopper may not have been leaking continuously under usual conditions of flight that day, the additional loading forces that occurred when climbing and turning the aircraft created a positive g-force, which could have caused the hopper to leak. 25 Mr Williams also believed it is possible that the incident occurred by the nozzles leaking. However, because of Mr Williams' habit of changing those nozzles regularly and monitoring them on each pass, Mr Williams does not think that is as likely as the hopper leaking. 26 The practical measures Mr Williams could have taken to prevent injury to persons could have been to refuse to fly the aircraft and undertake aerial spraying of liquid pesticide until the leakage problem had been fixed: see s 109(1)(b) of the Pesticides Act. Foreseeability of injury 27 Having regard to the problems that had been experienced with leakage from the hopper, and the many attempts that had been made to fix the problem unsuccessfully, it was clearly foreseeable that leakage of liquid pesticide could occur when Mr Williams undertook the aerial spraying. It was also foreseeable, having regard to the proximity of the Riverina Highway to the paddocks to be sprayed, that any leaking pesticide could cause injury to persons using the highway: see s 109(1)(c) of the Pesticides Act. Control over causes 28 Mr Williams had control over the causes of the offence in the sense that he undertook the aerial spraying in an aircraft that was known to have problem with leakage of liquid pesticides. Mr Williams could have refused to fly the aircraft until such time as the leakage problem had been fixed. This would have involved replacement with a hopper specifically designed for liquid pesticides. Of course, Mr Williams was an employee and could not make the decision to replace the hopper or otherwise fix the aircraft. His employer had control over those measures. However, this did not justify Mr Williams undertaking his employed work in breach of the law: see s 109(1)(d) of the Pesticides Act. Complying with orders from an employer 29 Mr Williams did comply with an order from his employer, Leafair Pty Ltd, to carry out the aerial spraying of the farmer's wheat paddocks in the aircraft supplied by the employer. This places Mr Williams in a less culpable position than the employer: see s 109(1)(e) of the Pesticides Act. Compliance with pesticide code of practice 30 There is no evidence that Mr Williams did not comply with any relevant pesticide code of practice: see s 109(1)(g) of the Pesticides Act. Disregard for public safety 31 Under s 21A(2)(i) of the Crimes (Sentencing Procedure) Act 1999 an aggravating factor is if the offence was committed without regard for public safety. The prosecutor submits that Mr Williams did commit the offence without regard for public safety in that Mr Williams undertook the spraying in an aircraft known to leak liquid pesticides. The defendant submits that the measures that Mr Williams took to fix the aircraft as best he could, recognising that he is not a mechanic, and in carrying out an inspection on the morning of the job for leaks, show that Mr Williams had a concern for public safety. I am not prepared to find that the aggravating circumstance of commission of the offence without regard to public safety is established in this case. 32 The prosecutor does not submit there are any other aggravating circumstances of the offence. No prior convictions

33 Mr Williams has no prior convictions for any environmental offence. He has worked in the aerial agricultural industry for 5 years without incident. This is a commendable record: see s 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999. Prior good character 34 Mr Williams is of prior good character. Mr Barrett, an agricultural pilot with over 30 years experience, praised Mr Williams' approach as being a professional, safety conscious and environment conscious aerial agricultural pilot: see s 21A(3)(f) of the Crimes (Sentencing Procedure) Act 1999. Plea of guilty 35 Mr Williams only recently entered a plea of guilty. The proceedings were commenced on 7 September 2005. At the first return of the summons on 19 October 2005 it was noted that Mr Williams had only recently been served. Thereafter there were 7 court appearances before, on 16 June 2006, Mr Williams entered a plea of not guilty. The matter was referred to the Registrar on 23 June 2006 to fix a hearing for 5 days. On 23 June 2006 the hearing was fixed for 13-17 November 2006. A pre-trial mention before the trial judge was fixed for 13 October 2006. 36 On 3 October 2006, Mr Williams' solicitor contacted the EPA to suggest Mr Williams was willing to plead guilty on the basis that he could assist the prosecutor in its prosecution against Leafair Pty Ltd. 37 On 13 October 2006, Mr Williams' solicitor indicated to the Court that Mr Williams' was considering a change of plea from not guilty to guilty. The matter was stood over to 17 October 2006. On 17 October 2006, Mr Williams by his counsel, entered a plea of guilty. The sentence hearing was fixed for 13 and 14 November 2006 and the remaining days were vacated. 38 The circumstances and the lateness of Mr Williams' plea of guilty means that the utilitarian value of the plea is considerably reduced: see s 21A(3)(k) and s 22(1) of the Crimes (Sentencing Procedure) Act 1999. In the circumstances, I would quantify the discount for the utilitarian value as being at the lower end of the scale of 10-25% given in: R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 419. See also Byers v Leichhardt Municipal Council [2006] NSWLEC 82 at [98]. For reasons I will give, this is a case where it is appropriate that the discount for the plea of guilty should be aggregated with the other factors of contrition and remorse and assistance to authorities: see R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 419 and R v Gallagher (1991) 23 NSWLR 220 at 228. Contrition and remorse 39 Mr Williams has given evidence, by affidavit sworn 13 November 2006, that he is extremely sorry that the incident occurred, not just because it has led to his prosecution but because of the temporary distress it caused the person who was affected by the spray. This statement of contrition and remorse comes late. Nevertheless I am prepared to accept its genuineness: see s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999. It forms part of the complex of inter-related considerations that led to the plea of guilty and the offer of assistance to the EPA in its prosecution of Leafair Pty Ltd. Assistance to authorities 40 Mr Williams assisted the EPA in its investigation of the offence: see s 21A(3)(m) of the Crimes (Sentencing Procedure) Act 1999. He voluntarily participated in a record of interview with the EPA on 28 October 2004. He has also recently assisted the EPA in its prosecution of Leafair Pty Ltd. On 3 November 2006, Mr Williams swore an affidavit in those prosecution proceedings. The EPA expresses the view that the assistance provided by Mr Williams is significant because it has clarified the circumstances which resulted in the leakage of pesticide over the highway during the spraying operation. The significance and utility of the assistance has been evaluated having regard to the factors in s 23(2) of the Crimes (Sentencing Procedure) Act 1999. 41 The factors of the plea of guilty, contrition and remorse and assistance to authorities can be quantified as meriting a single combined discount of 30%. Extra curial punishment 42 The defendant says that Mr Williams, as a result of this offence, has not been employed in the aerial agricultural industry since May 2005. He expresses concern that his reputation has been harmed by reason of the offence. Any conviction may have an effect on his employment opportunities. Deterrence 43 In cases such as this the purpose of sentencing of deterrence is important: see s 3A(b) of the Crimes (Sentencing Procedure) Act 1999. General deterrence is required for other pilots and operators in the aerial agricultural industry to ensure they take proper precautions to ensure that injury to persons is not caused by the use of pesticides: see Axer Pty Limited v Environment Protection Authority (1993) 113 LGERA 357 at 359. This will not occur if only nominal fines are imposed. 44 There is also the need for specific deterrence in appropriate cases. However, in this case, Mr Williams is unlikely to re-offend, having regard to Mr Williams' experience from this incident, his contrition and remorse, and his stated intention in the future to be vigilant in pre-flight checks of his plane and equipment, not bow to employer or client pressure, not fly planes that he knows or suspects to be faulty and prone to cause spray drift or leakage and insist on a means to communicate the presence of passing motor vehicles when he is flying adjacent to a public road: see s 21A(3)(g) of the Crimes (Sentencing Procedure) Act 1999. Appropriate penalty 45 Taking into account the objective circumstances of the offence, and the subjective circumstances of the offender, I consider this is an appropriate case for the defendant to be convicted as charged and a monetary penalty imposed. I do not consider it is appropriate that an order be made under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 directing the charge be dismissed. The offence is not of a trivial nature. The circumstances in which the offence was committed are not extenuating. The objective circumstances of the offence set out above do not make an order under s 10(1)(a) appropriate. 46 In my opinion the objective circumstances of the offence, tempered by the mitigating circumstances of the offence and offender, make the appropriate penalty a fine of $7,000. I take into account that the defendant has agreed to pay the prosecutor's professional costs in the agreed sum of $5,000: EPA v Barnes [2006] NSWCCA 246 at [78] and [88]. Orders

3. The defendant is to pay the prosecutor's professional costs agreed in the sum of $5,000.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.