Environment Protection Authority v Taylor

CITATION : Environment Protection Authority v Taylor [No. 4] [2002] NSWLEC 59 PROSECUTOR: Environment Protection Authority PARTIES : DEFENDANT: Rodney Scott Taylor FILE NUMBER(S) : 50093 of 1998; 50094 of 1998 and 50095 of 1998 CORAM: Lloyd J KEY ISSUES: Environmental Offences :- penalty - mitigation Costs:- criminal proceedings - summary prosecution - principles Crimes (Sentencing Procedure) Act 1999 s 10 Fines Act 1996 s 6 LEGISLATION CITED: Land and Environment Court Act 1979 s 52 and s 53 Protection of the Environment Administration Act 1991 s 5 Pesticides Act 1978 s 33(1) Barton v Berman [1980] 1 NSWLR 63; Cammilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; Clyne v Wringley [1980] 1 NSWLR 599; CASES CITED: Environment Protection Authority v Cooke (1996) 90 LGERA 61; Environment Protection Authority v Taylor [No. 2] [2001] NSWLEC 114; Environment Protection Authority v Taylor [No. 3] [2001] NSWLEC 115; Latoudis v Casey (1990) 170 CLR 534; R v Madden (1995) 85 A Crim R 367 DATES OF HEARING: 18/03/2002 and 19/03/2002 DATE OF JUDGMENT: 04/30/2002

On 1 May 2001 I found the defendant guilty of three offences against s 33 of the Pesticides Act 1978 (Environment Protection Authority v Taylor [No. 2] [2001] NSWLEC 114, Environment Protection Authority v Taylor [No. 3] [2001] NSWLEC 115)
The first offence (in summons No. 50093 of 1998) is that on or about 4 June 1997 at No. 73 Tozer Street, West Kempsey the defendant committed an offence against s 33(1) of the Pesticides Act in that, not being a person required by an order under s 21 of the Act or a person authorised under s 25 of the Act, he did in using a registered pesticide, carelessly disregard an instruction on a label affixed to a container in which he knew or had reasonable cause to suspect the registered pesticide to have been, there being a registered pesticide label for an approved container for the pesticide that contains that instruction. The particular instruction which is said to have been beached was "Do not allow contact with mattresses, bed clothes or clothing".
The second offence (in summons No. 50094 of 1998) is the commission of a similar breach of the same provision but against a different instruction, namely, "Do not contaminate utensils or surfaces where food may be prepared or stored".
The third offence (in summons No. 50095 of 1998) is again the commission of an offence against the same provision but against a third instruction, namely, "Keep away from cooking and eating utensils and remove or cover all raw or processed foodstuffs before spraying".
The proceedings are now before me for hearing on the question of penalty. I need not repeat the facts which gave rise to my judgment in which I found that the offence in each case was proved. These are set forth in the two previous judgments in the proceedings. There are, however, some additional facts which have been adduced.
The affidavit of Dr R S Kenyon, a Senior Occupation Physician, Occupational Medicine Branch, WorkCover New South Wales, deposes to the fact that the active ingredient of the pesticide used by the defendant, a chemical known as bendiocarb, is a poison which can be absorbed by way of skin contact or by ingestion. According to Dr Kenyon, given that there was gross contamination by deposits of residues of the chemical in the eating, living and sleeping areas of the house, with much of the residues being in places readily accessible to infants, the level of contamination was unacceptable. According to Dr Kenyon, if habitation of the home had continued, exposure to the conditions would very likely result in adverse health effects being experienced by the occupants. These effects could include malaise, muscle weakness, dizziness, sweating, headache, nausea, vomiting, diarrhoea, shortness of breath and, in extreme case, convulsions and death. Small children would be most at risk and there would be a small chance that the youngest child in the house, aged 20 months, would be exposed to a lethal dose if she had been left to play in such conditions. According to Dr Kenyon, a lethal dose for such a child could be about 1.5 to 2.5 grams. It is fortunate that the occupants of the house suspected that something was not right and vacated the house, thereby mitigating the risks to their health.
The offences are strict liability offences. The act of leaving pesticide in accessible locations such as on cooking and eating utensils, on benches next to exposed food and on bedding and clothing suggests that it was not accidental, but on the contrary, disclose extreme carelessness on part of the defendant.
I accept the submission on behalf of the defendant, however, that the defendant intended to return and clean up the pesticide residue. However, he knew that the house was occupied when he left pesticide in accessible locations. I accept that the evidence discloses that the defendant paid for the subsequent clean up and decontamination of the house; and paid for alternative accommodation for the occupants of the house for six nights.
It is clear from the facts that I accept the prosecutor's submission that these were serious offences.
The defendant is now aged 59. On 25 April 1978, when he was then aged 35, he had an accident in which he suffered an intracranial haemorrhage and lost consciousness for eight days. According to Dr Bruce Westmore, a Forensic Psychiatrist, who examined the defendant on 25 June 2001, the defendant also suffered and continues to suffer a chronic amnestic disorder. I have no reason to doubt Dr Westmore's opinion. According to Dr Westmore, the defendant would have had considerable difficulty in reading and understanding the instructions on the container of the pesticide. Dr Westmore concurs in the opinion of Dr Avis Fielding, who previously saw the defendant during 1997 and 1999, that it was most unlikely that the defendant would have been able to understand the instructions, carefully regard those instructions or obtain a sensible comprehension or understanding of the nature and content of the instructions regarding the application of the pesticide.
The defendant's ongoing disorder is also demonstrated by the evidence of his wife, Mrs R A Taylor, who described the defendant's forgetfulness. As a consequence Mrs Taylor manages their joint money and finances. The defendant's riding school business has been closed and two investment properties, including the property at which the offence occurred, have been sold, so the defendant's income from those sources has ceased.
According to Mrs Taylor, whose evidence I fully accept, both she and the defendant are now dependant upon Mrs Taylor part-time employment for their income and day-to-day living expenses. The defendant's equity in the property, the subject of the charges in this case, was about $22,000 and the defendant's equity in the other property which he sold last year was about $40,000.
The defendant's ongoing amnestic disorder is said to support a submission that his ability and judgment are impaired and as a consequence his culpability was low. I should make a few observations about this. Firstly, the packaging box containing the pesticide was admitted as an exhibit in the proceedings. It is clearly and prominently labelled "POISON". Under the word "POISON" the following words are also prominently displayed: "NOT TO BE TAKEN KEEP OUT OF REACH OF CHILDREN READ SAFETY DIRECTIONS BEFORE OPENING"
Secondly, in a record of interview given by the defendant on 18 November 1997, the defendant admitted that he had read the label including the safety instructions. He admitted that he followed the instructions on the label for the rate of dilution of the pesticide.
Thirdly, according to the evidence of Mrs Taylor, the defendant had previously used pesticides and herbicides on his farm property. Although the defendant did not give evidence to this effect, I am prepared to infer that he would thus be aware that pesticides should be handled with care.
Fourthly, it is self-evident that the defendant knew that he was using a poison.
The Court has not had the benefit of hearing from the defendant himself. There is nothing to suggest that he has shown any contrition for the offence. It is submitted on behalf of the defendant that there is little or no likelihood of the defendant re-offending, which taken together with his low level of culpability would justify either dismissal of the charges or a conditional discharge under s 10 of the Crimes (Sentencing Procedure) Act 1999.
In deciding whether to make an order under that section the Court is required to have regard to the following factors (s 10(3)): (a) the person's character, antecedents, age, heath and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider.
As to sub-s 3(a), it is submitted that the defendant's mental condition, along with the fact that the defendant has no prior convictions or charges for an environmental offence, and the fact that the defendant is held in high esteem by members of his community are strongly in favour of the exercise of the discretion. I accept these facts as valid reasons to support the exercise of the discretion. As to the defendant's mental condition at the time of the commission of the offence, however, there are the countervailing considerations which I have set out above (pars [13] to [16]).
As to sub-s 3(b), it is conceded by the parties that the offence is not trivial. On the contrary, the defendant was handling an extremely potent poison in a careless manner and the offence must be regarded as serious. The fact that the offence could not be regarded as trivial suggests to me that this is a reason for not applying s 10 of the Crimes (Sentencing Procedure) Act 1999 in this instance.
As to sub-s 3(c), it is submitted that the extenuating circumstance in this case is the relevance of the defendant's mental condition to the commission of the offence. I have referred to my view of this factor when considering s 10(3)(a) in pars [13] to [16] above.
As to sub-sec 3(d) it is submitted that no actual harm to the tenants was caused; the defendant paid for cleaning the premises and for the alternative accommodation of the tenants; and the defendant co-operated with the investigation. It is also submitted that regard should be had to the defendant's modest circumstances, his means and his ability to pay any fine in accordance with s 6 of the Fines Act 1996.
In considering whether to apply the provisions of s 10 of the Crimes (Sentencing Procedure) Act 1999 in this case and on the question of penalty generally, I accept the submission on behalf of the defendant that there is little likelihood of him re-offending. I also accept the evidence adduced that he is a person of modest means with little ability to pay any substantial fine.
On the other hand I have referred to the seriousness of the offence and the fact that the defendant must have known that he was handling a poison and that the house in which he was spraying pesticide was occupied. The offence is one of strict liability. There is no evidence, as I have noted, of any contrition or regret on the defendant's part for what has occurred. There is a need, particularly in cases of environmental offences designed to protect the public, for a general deterrence. All these considerations suggest that a monetary penalty is appropriate.
However, since the three offences are connected and arise out of the same set of circumstances occurring at the same time, the principle of totality is applicable (Camilleri's Stock Feeds Pty Ltd v Environmental Protection Authority (1993) 32 NSWLR 683 at 703-704). The penalties to be imposed will reflect this principle. Costs
The prosecutor also seeks an order for costs. The application for costs is opposed by the defendant. The defendant's submissions
Ms V M Heath, appearing for the defendant, made the following submissions: (1) Costs do not follow the event in criminal proceedings and there is no right to an order. (She referred to Latoudis v Casey (1990 ) 170 CLR 534.) (2) The Court should take into account the important differences between civil and criminal proceedings, such as the inability of the defendant to compromise the proceedings. (She referred in this context to Latoudis and to Barton v Berman [1980] 1 NSWLR 63.) (3) The interests of justice may mean that it is appropriate to order costs against an unsuccessful defendant where there was some conduct that warranted the order, such as where a case put by a defendant was clearly the unarguable, but that is not the case here. (She referred to Clyne v Wrigley [1980] 1 NSWLR 599; Environment Protection Authority v Cooke (1996) 90 LGERA 61 and to R v Madden (1995) 85 A Crim R 367.) (4) Previous cases relating to costs in criminal cases have not taken the Fines Act 1996 into account, which applies to orders for costs made in the summary jurisdiction of the Court (referred to in s 53 of the Land and Environment Court Act 1979 ("the Court Act")). (5) Section 6 of the Fines Act 1996 requires the Court to consider the defendant's means to pay in fixing the amount of any fine. A fine is defined to include any costs payable under an order made by a court in proceedings for an offence (s 4). This in turn requires the court to take into account the quantum of any proposed costs order and to fix the quantum of any costs order. (6) The interests of justice require, as a matter of public policy, that defendants be able to exercise their rights to put the prosecution to proof, or to argue points of law not conclusively decided, or to raise defences (not being vexatious) without the risk of an adverse order for costs being made against them. (7) The quantum of any costs ordered should not be disproportionate to the seriousness of the offence. In the present case the prosecutor is seeking costs in excess of $70,000, which is disproportionate to both the seriousness of the offence and the penalty which it would attract. (8) The conduct of the defendant's case did not give rise to an entitlement for costs to be awarded in favour of the prosecutor: the defendant did not contest the basic facts, raised an open question of law as to whether the offence involved in the mental element and raised other arguable questions of mixed law and fact and of fact alone. (9) The defendant had no control over factors relevant to the quantum of costs. The case could properly have been prosecuted in the local court with consequence on this expense; and the case was not of a complexity that warranted senior counsel. The prosecutor's submissions
Mr D A Buchanan SC, appearing for the prosecutor, made the following submissions: (1) Although the principles relating to costs in civil proceedings are not completely analogous to those in summary criminal proceedings, they do inform the principles for exercise of the power to order costs in criminal proceedings. (2) The objective of an order for costs is to compensate the successful party and not to punish the unsuccessful party. (3) In the absence of special circumstances a successful party will have a reasonable expectation of an award of costs, so that generally costs should follow the event. (4) There are no special circumstances or disentitling conduct on the part of the prosecutor in the present case, neither were there any issues at the trial upon which the prosecutor failed. (5) There is no reason of which the prosecutor is aware where a successful prosecutor has been deprived of costs for commencing proceedings in a superior court rather than in the local court. The nature of the proceedings and the seriousness of the breach in the present case demonstrated the desirability for bringing the prosecution in this Court. (6) The power of the court to make orders for costs under s 52 of the Court Act is not expressed to be subject to s 6 of the Fines Act, so that it is not appropriate to take into account the means of the defendant to pay a fine or an order for costs. Moreover, any question as to the defendant's means to pay does not require the court to refrain from exercising an otherwise unfettered discretion in the usual way, because the Fines Act confers power upon the Registrar to extend the statutory time to pay. (7) The defendant's limited means has not apparently been a constraint in obtaining both legal and forensic medical services for the purpose of defending the charges. (8) It is not unusual in either civil or criminal proceedings for the magnitude of the costs (in this case over $70,000) to exceed the sum in dispute or the penalty imposed. The defendant's submission that any order for costs should be proportionate to the penalty imposed flies in the face of the principal that the purpose of costs orders are compensatory. (9) There is no reason in the present case why the prosecutor should be deprived of the costs it has incurred. Consideration
In considering the question as to whether any order for costs should be made against the defendant, it is sufficient to have regard to the judgments of the High Court in Latoudis v Casey. In Latoudis, Mason CJ said (at 543): If one thing is clear in the realm of costs, it is that, in criminal as well and civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings.
In that case it was held that in the absence of any disentitling conduct by the defendant, a court exercising summary criminal jurisdiction will ordinarily make an order for costs in favour of the successful defendant. This principle was explained by Mason CJ as follows (at 542-543): In ordinary circumstances it would not be just or reasonable to deprive a defendant who has secured the dismissal of a criminal charge brought against him or her of an order for costs. To burden a successful defendant with the entire payment of the costs of defending the proceedings is in effect to expose the defendant to a financial burden which may be substantial, perhaps crippling, by reason of the bringing of a criminal charge which, in the event, should not have been brought. It is inequitable that the defendant should be expected to bear the financial burden of exculpating himself or herself, though the circumstances of a particular case may be such as to make it just and reasonable to refuse an order for costs or to make a qualified order for costs. (See also Toohey J at 565.)
It is submitted on behalf of the defendant in the present case, however, that the converse does not necessarily apply and it does not follow that ordinarily an order for costs should be made in favour of a successful prosecutor. Reliance is placed for this submission on the following passage in the judgment of Mason CJ in Latoudis (at 543-544): I am not persuaded that there is a complete analogy between the discretion to award costs in summary proceedings and the power to award costs in civil proceedings. For that reason I would not be prepared to accept that in summary proceedings there should be a general rule that costs follow the event. ... The differences between criminal and civil proceedings are substantial, not least of them being the absence of pleadings, the different onus of proof, the defendant's inability in criminal proceedings to enter into a compromise and the possibility that the charge, if proved, may affect the defendant's livelihood and reputation. These differences may possibly provide grounds in the circumstances of particular cases for refusing to order costs in favour of a successful informant which would have no application in civil proceedings.
Toohey J noted (at 563) that courts of summary jurisdiction regularly award costs against unsuccessful defendants, a practice which his Honour appears to accept. McHugh J, like Mason CJ, recognised a distinction between a civil case and a criminal case (at 568): It is true that the discretion to award costs in summary proceedings has to be exercised in circumstances which are not identical to those which exist in civil cases. For example, a criminal case cannot be settled, and the informant does not seek to vindicate any right or define any obligation of his or her own. Moreover, there are no written pleadings in criminal proceedings. The plea of not guilty in criminal proceedings, like its historic common law counterpart in civil proceedings, puts everything in issue.
McHugh J also said, however, (at 568): But, despite the differences between civil and criminal proceedings, once the real issues in the summary proceedings are identified, there is no difficulty in applying in such proceedings principles akin to those applicable to the making or refusing of orders for costs in civil cases.
I conclude from the majority judgments in Latoudis that only Mason CJ expressed the opinion that there should not be a general rule in summary proceedings that costs should follow the event. The other two members of the court in the majority, Toohey and McHugh JJ, accept the proposition that the principles which apply to the making or refusing of costs orders in civil cases apply also to criminal cases. The approach of Toohey and McHugh JJ is consistent with the opinion of Mason CJ that the orders for costs are not made to punish the unsuccessful party but are compensatory, the object being to indemnify the successful party for the expense to which he or she has been put (per Mason CJ at 543, noted above, Toohey J at 563 and McHugh J at 566-567).
Neither Toohey J nor McHugh J appear to regard the differences between a civil case and a criminal case as justifying a different approach: see in particular the comments of McHugh J which I have set out in pars [32] and [33] above. It follows that I do not accept the defendant's submission that the differences between civil and criminal proceedings necessarily means that costs do not follow the event in criminal proceedings, or that the interests of justice otherwise require that no order for costs should be made against the defendant.
In the present case no concessions were made by the defendant. The defendant contested the validity of the originating process, which resulted in a case being stated to the Court of Criminal Appeal. After that Court upheld the validity of the originating process, the defendant maintained his plea of not guilty. In so doing he raised a further legal issue, namely the question of whether the offence was one of strict liability or one in which a mental element is required, and contended for the latter. After I held that the offence was one of strict liability (Environment Protection Authority v Taylor [No. 2]) the defendant continued to maintain his plea not guilty. I found, however, the offence proved (Environment Protection Authority v Taylor [No. 3]). I see no reason in principle why, in such circumstances, the prosecutor should not be indemnified for the costs it has incurred in proving the offence, and, in particular, an environmental offence for which there is need to protect the public. If such offences are not prosecuted then they will be more likely be ignored, with consequent environmental harm.
The defendant must take his chances. If the offence is not proved then, provided he has not committed any disentitling conduct (such as described in Latoudis by Mason CJ at 544, by Toohey J at 565 and by McHugh J at 569) he would have a reasonable expectation for an order for costs; but if the offence is proved then he likewise would have a reasonable expectation for an order to pay the prosecutor's costs.
I turn now to the question of the quantum of costs. The prosecutor indicated that its costs would be more than $70,000. As noted above, the defendant is a person of modest means and is in receipt of no income. He would be unable to pay costs of such magnitude, particularly as he also must pay a monetary penalty for the offences.
I do not regard the defendant's submissions relating on the venue and to the engagement by the prosecutor of senior counsel as entitling the defendant to a discount on any order as to costs. The bringing of the prosecution in this Court was appropriate having regard to the seriousness of the offences and the need to determine the legal question of whether the offences involved a mental element or whether offences were of strict liability. Moreover, the challenge by the defendant to the validity of the originating process, and raising the legal question of whether the offences were strict liability offences, each raised novel and difficult questions of law which had not been previously determined and thus fully justified the briefing by the prosecutor of senior counsel. I should add that I was considerably assisted in determining each of those questions by the submissions of and the authorities referred to by senior counsel for the prosecutor.
Of greater relevance, however, is the Fines Act 1996. The definition of a fine for the purposes of the Act includes not only the monetary penalty imposed by a court for an offence, but also "any costs (including expenses and disbursements) payable by a person under an order made by a court in proceedings for an offence that were brought by a law enforcement officer" (s 4(1)(f)). Section 6 of the Fines Act requires the Court, in the exercise of its discretion in fixing the amount of any fine, to consider the means of the accused. Section 53 of the Court Act 1979 provides: The payment of any money ordered by a Judge exercising summary jurisdiction under this Act to be paid as a penalty or for costs may be enforced in accordance with the Fines Act 1996 .
In my opinion, however, the Fines Act does not apply in fixing the amount of any order for costs in proceedings brought by the Environment Protection Authority. As noted above, the definition of a fine includes any costs payable by a person under an order made by a Court in proceedings for an offence that were brought by "a law enforcement officer". A law enforcement officer is defined in the Act as follows: law enforcement officer means a person exercising law enforcement functions in the official capacity of any of the following: (a) the Director of Public Prosecutions, a Deputy Director of Public Prosecutions or a Solicitor for Public Prosecutions, (b) a Crown Prosecutor. (c) a police officer, (d) a public servant, (e) an officer or employee of a statutory body representing the Crown, (f) a member or an employee of a local council, (g) a member or employee of a rural lands protection board, (h) an officer within the meaning of the Prevention of Cruelty to Animals Act 1979, (i) an officer or employee of a kind prescribed by the regulations.
In the present case the proceedings had been brought by the Environment Protection Authority, a body corporate constituted by the Protection of the Environment Administration Act 1991 (s 5). A law enforcement officer has been specifically defined as noted above. The Environment Protection Authority is not a law enforcement officer as defined in the Fines Act, so that s 6 of that Act does not apply to the present proceedings. Moreover, the Environment Protection Authority is neither an officer nor employee of a kind prescribed by the Fines Regulation 1997 for the purpose of par (i) of the definition.
Moreover, s 53 of the Court Act provides that any order for costs may be enforced in accordance with the Fines Act. That section does not apply the Fines Act so far as the quantum of any order for costs made under the Court Act is concerned. It merely refers to the way in which an order for costs already made may be enforced.
It is clear, however, that s 6 of the Fines Act applies to any monetary penalty imposed by the court, so that the defendant's means to pay is a relevant consideration in fixing the amount of any fine.
I am unable to see why a public body such as the Environment Protection Authority, which is charged with the power and responsibility of enforcing laws designed to protect the environment and to protect the public from harm, should be out of pocket because the defendant who has been found guilty of such an offence is a person of modest means. The Environment Protection Authority might otherwise be discouraged from bringing such prosecutions, which are in the public interest, if its costs of doing so are unlikely to be recovered. As both Toohey and McHugh JJ accepted in Latoudis, the principle that a successful party has, in the absence of special circumstances, a reasonable expectation of obtaining an order for costs in its favour, is one which applies to criminal cases as well as to civil cases. Furthermore, such orders for costs are not imposed by way of punishment but to indemnify the successful party against the expense to which he or she has been put. By pleading not guilty to the charges, rather than pleading guilty at an early stage, the defendant has thereby caused the prosecutor to incur the considerable amount by way of costs which it now claims. The defendant has not identified any disentitling conduct on the part of the prosecutor, neither has the defendant identified items of costs that were not properly incurred in proving its case. It follows that there will be the usual order for costs. Orders
In fixing the amount of the penalty I have regard to the maximum penalty fixed by the legislature, which is $22,000 for each offence in the case of an individual (and $44,000 for each offence in the case of a corporation). I also have regard to the defendant's modest means as required by s 6 of the Fines Act and to the principle of totality where multiple charges are brought for offences that are seen as connected.

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Judgment (7 paragraphs)

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