Environment Protection Authority v Sanders & Associates Pty Limited

Introduction 1 The defendant has pleaded guilty to an offence against s 10(1)(b) of the Pesticides Act 1999, namely, using a pesticide in a manner that damages or is likely to damage any property of another person. 2 A plea of guilty is an admission of every element of the offence. Accordingly, the only questions for determination are those of penalty and costs. The facts 3 The relevant facts are largely but not entirely agreed. They are derived from an agreed statement of facts together with additional affidavit and other documentary evidence. 4 The offence occurred on a property known as "Simpson's Paddock" which is part of a larger holding being the Narama Mine, at Ravensworth, near Singleton. Simpson's Paddock is on the northern bank of the Hunter River. The mine owner, in conjunction with a body called Greening Australia, wished to establish a native species farm forestry trial on Simpson's Paddock. The purpose of the trial, conducted as part of the Commonwealth Government Greening Australia project, was to study the performance of various native species as potential for forestry trees in the Hunter Region. 5 In July 2001 the owner of the mine, by its wholly owned subsidiary Ravensworth Pastoral Company Pty Limited, commissioned the defendant to undertake work preparatory to the tree planting. The work included spraying a pesticide known as Grazon DS Herbicide to control a woody weed known as Galenia. (A "herbicide" is included in the definition of "pesticide": s 5 of the Pesticides Act.) 6 On 19 March 2002, between 10.00 am and 11.00 am, Mr K J Doyle, an employee of the defendant, sprayed Simpson's Paddock with the pesticide. The spraying was undertaken using a tractor fitted with an eight metre boom spray. The pesticide was applied at the recommended rate, but Mr Doyle set the boom spray at a height of 1 metre, rather than at the recommended height of 650 millimetres. He did this so that the boom spray would clear another weed known as Farmers Friend, the majority of which was about 900 millimetres high, so that there would be minimal disruption to the spray pattern. 7 Before commencing the spraying, Mr Doyle carried out a risk assessment, in which he recorded the wind speed ("6km/hr, steady") and the temperature ("25"), both being estimated rather than measured. The mine weather station, a few kilometres away, recorded the wind speed between 10.00 am and 11.00 am as between 11.1 to 14.5 kilometres per hour and the wind direction as being from the north-west, that is, towards the river. The weather station recorded the temperature at the same time as between 30.710 C and 33.80 C. The maximum temperature recorded during the day was 39.530 C at 3.30 pm. 8 According to the label on the pesticide, the maximum temperature for aerial spraying is 350 C. The maximum wind speed for aerial spraying is specified as 15 kilometres per hour. The maximum wind speed for boom spraying is not specified. According to the Farm Chemical Users Reference Manual published by Farmcare Australia (NSW), the maximum wind speed for boom spraying is 19 kilometres per hour. Moreover, the Manual specifies the optimum conditions for spraying as a wind speed in the range of 6 to 11 kilometres per hour. 9 There is a suggestion in the evidence that Simpson's Paddock is a river flat which is sheltered from the north-west by a ridge line, so that a wind speed from the north-west recorded at the mine weather station may not be as great at the ground level in the paddock. 10 A few weeks after the spraying had been carried out, trees on the banks of the river on both sides turned brown and showed signs of leaf scorch. About 30 to 50 trees out of a total of about 200 trees along a stretch of about 600 metres of the river were affected. These included trees on the opposite side of the river. The affected trees comprised mainly Casuarinas, but some Eucalypts and Willows were also affected. The trees, however, have since recovered. 11 Riparian vegetation such as the trees which were affected provides important corridors for wildlife movement as well as habitat for flora and fauna species. Moreover, the banks of the river at this location are a sandy loam which is readily erodable in the absence of stabilising trees. Although there was no lasting harm, the likelihood of the loss of the trees could, if such likelihood had been realised, have had serious consequences. 12 Since the spraying was carried out in what appears to have been appropriate wind and temperature conditions, there is a question as to the cause of drift of the pesticide to the affected trees. Mr A M Storrie, an agronomist employed by New South Wales Agriculture, expressed in an affidavit the following opinions: [28] In my opinion, given the temperatures and the time of year, the humidity would have been low at the time of the spraying incident. When humidity is low, spray droplets evaporate faster and can travel longer distances because gravity has a lesser effect on them as their mass decreases. [29] I have conducted a number of trials of spray drift, as set out in my CV. In my experience spray drift can travel enormous distances, up to many kilometres. The likelihood of a pesticide being subject to spray drift is also dependent on the chemistry of the pesticide. [30] A spray of the droplet size indicated by Mr Doyle of 100 to 200 microns is capable of travelling long distances. In my opinion a spray of this droplet size emitted from a boom at a height of 1 metre in the prevailing atmospheric conditions is capable of travelling several hundreds metres. 13 Mr Storrie also gave the following opinions: [54] If the boom height is set higher than 500 mm above the target weed the risk of drift increases dramatically, because there is a greater time for the droplets to reach the target during which the droplet size will be decreasing in conditions of high temperatures and/or low humidity, and more prone to influences from the prevailing winds and subject to movement away from the target spray application site. [55] I note that the boom was set at 1000 mm to clear the height of the non target weeds, "farmers' friends". Good practice in weed management would have been to slash the non-target weeds shortly before the spraying to ensure that the boom could be set at the recommended height. [56] The set up of the boom should have been determined on the morning of the spraying, based on the atmospheric conditions and not the day before. The consideration of the atmospheric conditions should have included the direction of the wind, and whether the wind was blowing toward non target vegetation. Mr Kristopher Doyle did not record and has not indicated that he took into account, the direction of the wind. [57] I have reviewed that Chemical User Training Manual (the Manual) provided by Sanders Pty Limited. The manual required pesticide applicators to take account of the direction of the wind, temperature and humidity and ensure that the boom height is appropriate. Relevant considerations on penalty 14 It is to be noted that the offence is the use of a pesticide in a manner that damages or is likely to damage any property of another person. It follows that the damage to the trees on the property which was sprayed is not part of the offence. In the present case it is only damage to those trees on the opposite bank of the river which constitute the offence; and those trees were not as greatly affected as those on the property which was sprayed. 15 Section 109 of the Pesticides Act lists the matters which the Court must take into consideration, so far as they are relevant, in imposing a penalty. I set out my conclusions in respect of each consideration as follows. (a) the extent of the injury, damage or harm caused or likely to be caused by the commission of the offence 16 There was actual harm, described in par [10] above. Such harm was, however, minor and temporary. All the trees have since recovered. The harm was to some extent balanced by the countervailing fact that the spraying was part of a Greening Australia project in which some 5,500 trees were planted in Simpson's Paddock. (The fact that the trees that were planted did not survive is irrelevant.) (b) the practical measures that may be taken to prevent, control, abate or mitigate any such injury, damage or harm 17 There was no permanent harm. Accordingly no work of mitigation or remediation is required. As to what could have been done to prevent or control such harm which did occur, I have noted that Mr Doyle had undertaken a risk assessment by noting the wind strength (but not the wind direction) and the temperature. Moreover, as appears from pars [7] and [8] above, the spraying was carried out under the recommended meteorological conditions of wind speed and temperature. Mr Doyle did not note the level of humidity; and it appears that this may have contributed to the spray drift travelling further than it otherwise would. In this respect I accept the opinion of Mr Storrie. The only real criticism that can be made of Mr Doyle's conduct is that he did not set the spray boom at the recommended height of 650 millimetres, but rather at one metre to clear the weed known as Farmers' Friend. As pointed out by the prosecutor, the defendant could and should have slashed the Farmers' Friend, a non-target weed, before using the pesticide thereby allowing the spray boom to be set at the correct height. 18 In view of the expert opinion of Mr Storrie, described above, it seems to me that the most probable explanation for the spray drift is that it was caused by a combination of the low humidity and the spray boom being set too high. (c) the extent to which the person who committed the offence could reasonably have foreseen the injury, damage or harm caused or likely to be caused by the commission of the offence 19 According to Mr Doyle, he spent a substantial amount of his time during the spraying observing the spray boom behind the tractor; and at no time was there any observable spray drift. 20 The prosecutor submits that the risk of spray drift was foreseeable. Reliance is placed on the Farm Chemical Users Reference Manual referred to earlier, in which the factors influencing whether drift is likely to occur are listed. These factors include the height of the spray release and weather conditions. 21 It seems to me that, in the light of all the evidence, the spray droplets were evaporating in the low humidity and high temperature and thus were able to travel a greater distance. This conclusion is consistent with the opinion expressed by Mr Storrie in par [28] of his affidavit, which opinion is undisputed and which I accept. (d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence 22 This consideration overlaps with that under paragraph (b) above. The defendant had full control over the causes that gave rise to the offence. It is submitted on behalf of the defendant, however, that the defendant had no control over the weather conditions. It is said that there was no step which the defendant could have taken which does not require virtual perfection. Reference was made to Thorneloe v Filipowski (2001) 52 NSWLR 60 at 77 [186]. Accordingly it was submitted that, having complied with the recommendations on the label and the recommendations of the Farms Chemical Users Reference Manual, published by Farmcare Australia (NSW), no element of deterrence is required. 23 I accept that the spraying occurred under the meteorological conditions recommended on the label. There was, however, one aspect of Mr Doyle's conduct which was within his control, to which I have referred above: that is, the setting of the height of the spraying boom at one metre instead of the recommended height of 650 millimetres. As found in par [18] above, this appears to have contributed to the problem. (e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee 24 This head of consideration is not relevant in the present case. (f) in any case where the defendant is a corporation, the type of corporation concerned (eg whether it is a sole trader or a family-owned business) 25 The defendant is a family company and its business may thus be described as a family-owned business. (g) whether the person who committed the offence complied with any relevant pesticide code of practice 26 The defendant complied with the recommendations of the Farmcare Australia (NSW) Farm Chemical Users Reference Manual. The defendant also complied with the recommendations on the label of the pesticide, other than the recommended boom height. Other matters 27 The defendant pleaded guilty at the first opportunity. The prosecutor concedes that the defendant is thus entitled to the full discount on penalty of 25 per cent for the utilitarian value of facilitating the course of justice (R v Thompson (2000) 49 NSWLR 383 at 419 [160]). 28 The defendant fully co-operated with the prosecutor and both its principal (Mr R Doyle) and its employee (Mr K J Doyle) readily took part in records of interview. 29 I have been furnished with an unusually large number of testimonials, most of which have been supplied in the knowledge of these proceedings. They attest to the defendant's wide involvement in community activities such as the Landcare movement, the Healthy Rivers Commission and the State Water Coastal Valleys Customer Service Committee. The defendant is an acknowledged leader in the field of sustainable agriculture, environment protection, conservation and encouragement of biodiversity. The defendant has organised and delivered field days and discussions on its own property to educate other landholders and the personnel of State government agencies in sustainable farming practices. 30 Since the incident which gave rise to the present charge, the defendant has prepared a revised risk assessment checklist for the application of pesticides and herbicides designed to avoid any repeat of the offence. 31 It is submitted that in all the circumstances there is no need for any penalty to act as a deterrent and the public interest would be completely satisfied if the Court were to exercise its power under s 10 of the Crimes (Sentencing Procedure) Act 1999. 32 In my opinion, however, it is not appropriate to exercise the Court's power under s 10. Two considerations in particular lead to this conclusion. Firstly, the offence is not of a trivial nature. The handling and the application of pesticides and herbicides must be undertaken with great care. In the present case, although there was no lasting environmental harm, the potential harm was considerable. Secondly, it must be borne in mind that this is a strict liability offence. (As to what makes an offence one of strict liability, see Director General of the Department of Land and Water Conservation v Greentree & Anor [2002] NSWLEC 102 at pars [80] to [90]; and on appeal [2003] NSWCCA 31 at pars [70] to [80].) It is an offence of such a nature that precautions must be taken so as to ensure that pesticides and/or herbicides are used in a manner that will not damage or be likely to damage property of other persons (cf Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359, 367). 33 In taking all of the abovementioned considerations into account, including the actual extent of the environmental harm, it is appropriate that the penalty be at the lower end of the scale. Moreover, apart from the defendant's early plea of guilty, which justifies a full discount on penalty of 25 per cent, the defendant is entitled to a further discount on account of its unblemished record, its outstanding record of community service and involvement in conservation, its genuine remorse and contrition, and the overall circumstances surrounding the commission of the offence. It is thus appropriate that the defendant should have the maximum discount of 35 per cent, encompassing all relevant matters (Thompson at 419 [160] and [162]). 34 The maximum penalty prescribed for the offence, in the case of a corporation is $120,000. The maximum is, of course, to be imposed for the worst category of offence, but it shows the seriousness with which the legislature regards offences of this nature. The present offence is of minimal seriousness. The appropriate penalty is, in my opinion, $4,600 which, as I have said, is reduced by 35 per cent to $3,000. The defendant has agreed to pay the prosecutor's costs, assessed at $23,000. Orders 35 The formal orders of the Court are: (1) The defendant is convicted of the offence as charged. (2) The defendant must pay a penalty in the sum of $3,000. (3) The defendant must pay the prosecutor's costs of $23,000. (4) The exhibits, other than exhibit A, may be returned. I hereby certify that the preceding 35 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd. Associate