Environment Protection Authority v Wellbourne and Ligano Pty Ltd trading as Manly Warringah Pest Control

DEFENDANT Ligano Pty Ltd trading as Manly Warringah Pest Control

NUMBER: 50001 of 1999 and 50002 of 1999

KEY ISSUES: Environmental Offences :- pesticides - plea of guilty - mitigation

LEGISLATION CITED: Crimes Act 1900 Pesticides Act 1978

EX TEMPORE JUDGMENT DATE: 07/26/1999

PROSECUTOR Mr D M Samuels (Solicitor)

SOLICITORS Environment Protection Authority LEGAL REPRESENTATIVES: DEFENDANT Ms N M Shannon (Solicitor)

SOLICITORS Allen Allen & Hemsley

IN THE LAND AND 50001 of 1999 and 50002 of 1999 ENVIRONMENT COURT Pearlman J OF NEW SOUTH WALES 26 July 1999

No 50001 of 1999 ENVIRONMENT PROTECTION AUTHORITY Prosecutor v JOHN DE MONTFORT WELLBOURNE Defendant No 50002 of 1999 ENVIRONMENT PROTECTION AUTHORITY Prosecutor v LIGANO PTY LTD trading as MANLY WARRINGAH PEST CONTROL Defendant

These are two matters which involve prosecutions under the Pesticides Act 1978. In respect of both these prosecutions, the defendants have pleaded guilty and the proceedings have, by leave, been heard together.

The offences rise under s 33 of the Pesticides Act which relevantly provides as follows: 33(1) Except to the extent that the person is otherwise required by an order made under section 21 or, pursuant to a permit, the person is otherwise authorised by section 25, a person shall not, in preparing for use, using, keeping or disposing of: (a) a registered pesticide; … wilfully or carelessly disregard any instruction on any label affixed to a container in which: (c) the pesticide is situated; … if there is … (b) registered label for an approved container, for the pesticide that contains the instruction concerned.

The facts are these. The defendant, Ligano Pty Limited, trading as Manly Warringah Pest Control, conducted a pest extermination treatment at premises at 3 Brookvale Avenue, Brookvale on 20 February 1998. The operation was carried out by the second defendant, Mr Wellbourne. Mr Wellbourne began his operation at approximately 8.30 am and he completed it about 9.30 am. He left the premises and he did not return to them.

The pesticide which he used is a pesticide called Insectigas D, which contains as its active constituent a chemical called dichlorvos. That pesticide has a registered label on the cylinder in which it is utilised. The label is a largish label. It contains amongst other things the following directions under the heading "Directions for Use": DO ensure complete vacancy of the premises for not less than four hours after application. Allow a minimum period of 30 minutes for complete ventilation of the premises prior to entry of personnel to treated area.

The occupant of the premises, Mrs Porteous, returned to the premises at about 3.00 pm. She saw no warning notice on any part of the premises and she entered. Upon noticing that there was a smell of pesticide, she opened all the doors and windows and she left the premises for about 30 minutes. Between 6.30 pm and 7.00 pm on that evening she began to exhibit physical consequences. She had a headache, she was disorientated, she had a sore throat, and she began to experience nausea and vomiting.

The pleas of guilty are an admission of each element of the offence. The Court is concerned today with simply what penalties to impose and any order for costs.

There are three matters about which I wish to speak generally about these offences. First, the nature of the offences. As Mr Samuels for the prosecutor said, the label on the pesticide is put there for a purpose. The purpose is to prevent or mitigate any harm to any person from the dangerous chemicals which are used in the treatment process and therefore the instructions must be complied with in order for there to be some safety.

The seriousness of the offence is indicated by the maximum penalty which the Parliament has imposed, that is, $44,000 in the case of a company and $22,000 in the case of an individual, and also by the provisions of s 33(2) which is as follows: 33(2) It is a defence to a prosecution for a contravention of subsection (1) if the court is satisfied that the instruction disregarded was not directed to the avoidance of harm to the health or property of any person.

I infer from s 33(2) that the purpose of s 33 in its context is to prevent, mitigate or avoid harm to the health or property of any person.

The second matter about which I speak generally is the actual harm that took place in this case. It is a significant feature of this case. A person actually suffered harm. Mrs Porteous' reaction was a severe one. There is no evidence one way or the other as to whether Mrs Porteous had a propensity to react so severely to the chemical. Ms Shannon appearing for the defendants, urged me to take into account such propensity but I do not do so in setting the penalty, because the label, as I have earlier explained, is put there for the purpose of avoiding harm to anyone.

The next general matter I wish to speak about is industry practice. Ms Shannon submitted that the industry practice, or at least the practice of the defendants in this case, is to carry out the treatment and then place a warning sign upon the premises. Two examples of the sort of warning sign that is placed on premises were attached to the affidavit of Mr J H Hall. One was said to be an old notice and it states: "Danger. Keep out until … Ventilate for thirty minutes before re-occupying" . The second, which is said to be a new notice, states: "Do not enter. This area has been treated with Insectigas. This sign will be removed when it is safe to re-enter" . The second notice suggests that the ventilation will be carried out by the operator. The first notice implies that the ventilation will be carried out by the occupant of the premises.

If it is the industry practice or the defendants' practice to comply with the instruction on the label to allow a minimum period of 30 minutes for ventilation simply by leaving such a warning notice, then I think that is insufficient. The facts of this case show it is insufficient because that is precisely what occurred ion regards to Mrs Porteous. According to her unchallenged evidence, she came back to the premises, went in, opened up the doors and windows and then left for about 30 minutes. She still suffered a severe reaction.

If that is the industry practice, it is insufficient in my view. There must be a better way. I accept that it is onerous for pest control operators to have to return to the premises, that is, make a second visit, in order to ventilate them. It is not for me to speculate on the proper way of carrying out the instruction to allow a minimum period of 30 minutes for complete ventilation. I merely say that I do not accept that the carelessness of the defendants for the purpose of s 33 is merely their failure to put a warning notice on the door. The carelessness is in failing to carry out the instruction so that a minimum period of 30 minutes for complete ventilation of the premises takes place prior to entry of personnel to the treated area.

I take into account the following matters in mitigation of the penalties.

First, in dealing with Ligano Pty Ltd, I take into account, as I am required to do under s 439 of the Crimes Act 1900, that a plea of guilty was entered at the earliest opportunity. Secondly, I take into account that Ligano Pty Ltd co-operated with the prosecutor. Thirdly, it has no prior convictions.

I take into account that Ligano Pty Ltd is controlled by Mr Nicol. In relation to him I have been furnished with a number of references. Those references and his statement, which is ex 1, indicate that he has had a long history in the business of pest control services. It is quite obvious that in that industry he is a leader. He has served on the board of the Pest Control Association of New South Wales and has been its vice president and president. He was involved in the formation of the Australian Environmental Pest Managers Association and he has been that body's representative on the New South Wales Pest Control Licensing Committee. I also take into account the letters attesting to his good character. In particular, I take into account the letter from the Australian Environmental Pest Managers Association Limited National Director Executive Mr Howick which sets out his opinion of Mr Nicol's character having regard to the fact that he knew of these proceedings.

At the time the actual incident took place Mr Nicol had been suffering ill health and was in hospital. He was not actually operating the business at the very time the incident took place. The business has now been sold and Mr Nicol is retiring so there is no likelihood of re-offending. I take into account that he is contrite and sorry that Mrs Porteous suffered the reaction that she did. I also take into account that Ligano Pty Ltd is to be wound up and that Mr Nicol is a person of modest means.

In relation to Mr Wellbourne, I take into account his early plea of guilty. I take into account his co-operation with the prosecutor. I also take into account the fact that he has no prior convictions for an environmental offence. I have also in his case been supplied with a number of character references. I place greater weight on the two references (one from Diapest Commercial Pest Control Services and the other from Peter Meadows Consulting Pty Ltd) which attest to Mr Welbourne's good character in the knowledge that this prosecution is on foot. He has been 18 years in the industry and that is a long involvement. He has resigned from the business of Ligano Pty Ltd and I am satisfied that there is no likelihood of him re-offending. I also take into account so far as concerns penalty that he is out of employment and that the penalty will have a burden upon his financial situation.

In all the circumstances Ms Shannon has applied for the Court to exercise its discretion under s 556A of the Crimes Act. That section provides that if the Court is of the opinion that, having regard to the character, antecedents, age, health or mental condition of the person charged, or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed, or to any other matter which the Court thinks it proper to consider and it is inexpedient to inflict punishment, the Court may dismiss the charge.

It has been said in many cases in this Court that s 556A is inappropriate in environmental offences except in the rarest of circumstances. That is because prosecutions of this nature are on foot because of legislation which is designed to protect the environment, including the health and well being of human beings. That indicates that it would have to be the rarest of cases where punishment is not inflicted, because deterrence is an extremely important issue in the question of environmental offences. The legislation is directed to ensuring that the environment is protected and that requires punishment as well as deterrence.

Furthermore, I do not think there are in this case, which is a serious offence with serious harm to an individual, circumstances which would justify a dismissal.

Ms Shannon, (who argued very well for the defendants), asked me to consider s 558 of the Crimes Act which permits the Court to defer sentence upon the person charged entering into a recognisance to be of good behaviour. For the same reason that I do not think s 556A is appropriate, I do not think s 558 is appropriate for cases of environmental offences except in rare circumstances. It is particularly inappropriate in this case where both the defendants are now likely to be out of the industry.

One further matter is the estimate of costs of the prosecutor. I have been furnished with an estimate of costs amounting to $6,000. I take that to be an estimate, a ball park figure, rather than an agreed figure. I take it into account when setting the penalty.

Taking into account all the matters I have outlined, I propose to impose a penalty in relation to the company, Ligano Pty Ltd, of $2,000 and in relation to Mr Wellbourne a penalty of $4,000. I propose to order that the defendants pay the costs of the prosecutor in the amount of one third as to Ligano Pty Ltd and two thirds as to Mr Wellbourne.

My formal orders are as follows: In relation to proceedings 50002 of 1999:

(1) The defendant is convicted of the offence with which it is charged.

(2) I fine the defendant the sum of $2,000 to be paid to the Registrar of the Court within one month of today's date.

(3) I order that the defendant pay one third of the total costs of the prosecutor for proceedings 50002 of 1999 and 50001 of 1999, such costs to be determined in accordance with the Land and Environment Court Act 1979.

(1) The defendant is convicted of the offence with which he is charged.

(2) I fine the defendant the amount of $4,000 to be paid to the Registrar within one month of today's date.

(3) I order the defendant to pay two thirds of the costs of the prosecutor in relation to proceedings 50001 of 1999 and 50002 of 1999, such costs to be determined in accordance with the Land and Environment Court Act 1979.

All the exhibits may be returned except the statements of the two defendants which are ex 1 and ex 2.

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.