Garrett on behalf of the Director-General of the Department of Conservation and Environment v House

Land and Environment Court (NSW)|2006-08-31|Before: Pain J

CITATION : Garrett on behalf of the Director-General of the Department of Conservation and Environment v House [2006] NSWLEC 492

PROSECUTOR PARTIES : Stephen Garrett on behalf of the Director-General of the Department of Environment and Conservation DEFENDANT James (Jamie) House

KEY ISSUES: Prosecution :- Harming of protected fauna - guilty plea - sentencing in environmental offences - consideration of s 10 of the Crimes (Sentencing Procedure) Act 1999 - mitigating factors

Crimes (Sentencing Procedure) Act 1999 s3A(b), s10 LEGISLATION CITED: Fines Act 1996 s10 National Parks and Wildlife Act 1974 s98(2)(a) Pesticides Act 1999 (NSW)

Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357; Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 ; Director-General of National Parks and Wildlife Service v Barry John Mobbs [1996] NSWLEC 225; Environment Protection Authority v Attard [2000] NSWCCA 242; John Mobbs [1996] NSWLEC 225; J R Bentley v BGP Properties Pty Limited [2006] NSWLEC 34; CASES CITED: Newcastle City Council v Pace Farm Egg Products [No 3] [2005] NSWLEC 423; R v Olbrich (1999) 199 CLR 270; R v Thomson; R v Houlton (2000) 49 NSWLR 383; R v Sharma (2002) 54 NSWLR 300; Thorneloe v Filipowski [2001] 52 NSWLR 60; Veen v R (No 1) (1979) 143 CLR 458 ; Veen v R (No 2) (1988) 164 CLR 465

PROSECUTOR LEGAL REPRESENTATIVES: Mr D Samuels (solicitor) DEFENDANT In person

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

50017 of 2006 Stephen Garrett on behalf of the Director-General of the Department of Conservation and Environment v James House

JUDGMENT 1 Her Honour: The Defendant is charged with an offence under s 98(2)(a) of the National Parks and Wildlife Act 1974 ("the NPW Act") that he harmed protected fauna, by causing the death of approximately 27 Welcome Swallows and injuring a further 51 in April 2005. The maximum penalty applicable under that section is $11,000 (100 penalty units) and an additional $1,100 (10 penalty units) in relation to each animal harmed or imprisonment for 6 months or both. As a result of the offence a number of birds identified as Welcome Swallows were killed and injured.

2 As the Defendant has pleaded guilty it is assumed that all the elements of the offence are admitted. The Defendant represented himself at the hearing.

3 This is the first prosecution in this Court under this precise section of the NPW Act. A similar, although not identical, provision previously in the Act was s 99. There is one prosecution under that section; Director-General of National Parks and Wildlife Service v Barry John Mobbs [1996] NSWLEC 225. There have been several prosecutions in the Local Court under s 98 of the NPW Act and the Prosecutor provided me with references to six such cases. 4 Section 5 of the NPW Act defines the terms "protected fauna", "fauna" and "bird". "Protected fauna" is defined as "fauna of a species not named in Schedule 11". Schedule 11 is a short table specifying a limited range of fauna. Welcome Swallows are not identified in it. It would appear that most fauna in New South Wales is protected, whether native or not. 5 The Prosecutor submitted that as the birds are native Australian birds they are protected fauna in New South Wales in accordance with the definition of the term in s 5 of the NPW Act. When questioned about the connection between the birds being native and the definition of "protected fauna", which makes no reference to "native" fauna, the Prosecutor referred to the definitions of "fauna" and "bird" in s 5 of the NPW Act. "Fauna" is defined as "any mammal, bird, reptile or amphibian". "Bird" is defined as "any bird that is native to, or is of a species that periodically or occasionally migrates to, Australia, and includes the eggs and the young thereof and the skin, feathers or any other part thereof". It is not disputed that Welcome Swallows are native Australian birds and are protected fauna. Agreed facts 6 The Prosecutor tendered a statement of agreed facts. It stated that around 6pm on the evening of 11 April 2005, Tristan Lavery, a Wildlife Information and Rescue and Service ("WIRES") volunteer was advised by phone of an incident with birds at an underground car park at Byron Bay Beach House, Bay Lane, Byron Bay ("the car park"). The car park is used by a number of shopkeepers in the area, as well as the agent for the Byron Strata Management and tenants living above the car park. On arrival she saw numerous swallows in distress. Some were stuck on pipes, some were disorientated and unable to fly. Others were clearly deceased. The birds had a sticky substance on them which was also on the pipes. Ms Lavery and others, including the Byron Bay Veterinary Hospital Clinic, collected about 77 affected birds. Butcher's paper was then placed on the pipes to ensure no more birds would be injured. 7 Danielle Davis, the main carer for WIRES, who specialises in ornithology, stated she arrived at the car park shortly after 6.30pm on the evening of the incident and gives the same evidence as Ms Lavery as to the condition of the birds. She stated that the birds were Welcome Swallows, which eat every 15 minutes and feed on the wing. Because the injured birds could not fly, they could not eat. She collected the birds and took them to the Byron Bay Vet Clinic. Seventy-seven birds were affected that evening. She stated that bird feathers were damaged and in some cases missing. A number of the birds also had burns on their skin. She said more birds were found around the car park with a sticky substance on them and in a distressed state. At least 27 birds died and at least another 51 were injured. 8 Mr Matthew Allworth, the managing veterinarian at the Byron Bay Veterinary Hospital Clinic, also attended the car park on the evening of 11 April, 2005. He saw the swallows already placed in boxes and about 20 or so on the ground, unable to move or fly. They had a substance on their feathers, which was sticky to the touch. He endeavoured to treat the affected birds at his surgery but some birds were already dead and some died shortly thereafter. Photographs were taken of some of the birds and are annexed to the statement of agreed facts. 9 An investigation into this incident revealed that the Defendant ran a painting business in the Byron Bay area. According to the Defendant there had been problems with birds in the area of the car park and he had been asked by the manager of the Byron Region Strata Management to carry out a general clean of the car park by means of pressure washing all surfaces and that the issue of the birds was only part of a broader scope of works. 10 Around midday on 11 April 2005 the Defendant applied a polybutene bird repellent known commercially as "Scarecrow" to a number of the overhead pipes in the underground car park to repel the birds that were roosting there. Essentially "Scarecrow" is a bird repellent which, according to its label, prevents pigeons, sparrows and starlings from perching and roosting where applied. The label says, inter alia, "Do not apply to surfaces where no target protected bird species may settle". It also says that it is not to be used for any purpose or in any manner contrary to this label. It is a non- hazardous chemical but may be harmful if swallowed. 11 According to the Defendant, he did not know what birds were in the car park despite being the owner of one of the units and visiting the car park from time to time. In his statement, the Defendant stated that he did not realise that there were swallows in the car park until this incident. He did not check prior to applying the substance whether protected or non-target bird species could be affected. Because he had been supplied with the substance by a pest control operator, he thought it would be suitable for use to deter birds. 12 Mr Wayne Begg, a pest control operator and a friend of the Defendant, stated that he had supplied him with 10 or 12 containers of "Scarecrow". Mr Begg agreed that a risk assessment could have been done and alternatives could have been used. He did not think there would be a problem with "Scarecrow" as it was not a toxic pesticide. He had only supplied this product to a client once before and did not know what sort of birds were the target birds on that occasion. 13 There had been a similar problem with birds at an adjoining underground car park at the Beach Hotel at Byron Bay where foil was used successfully to control the bird situation without any injury to birds. 14 Officers of the Department of Environment and Conservation ("DEC") visited the car park the day following the incident. Photographs were taken of the area which clearly show the sticky substance on the pipes. These photographs are in evidence. 15 Samples of the sticky substance were taken and were later sent to the DEC analytical laboratories at Lidcombe for analysis along with a number of the dead birds. Mr Stephen Fuller, Senior Environmental Chemist for DEC, prepared an Environmental Forensic Report based on the analysis results of samples supplied to him from the scene. His conclusion was that the residue recovered from the dead swallows' wings was physically similar to samples taken from the pipes and that the residues in all samples had a highly similar chemical profile and were likely to have had a common source. 16 Mr Robert Beale, a Senior Field Officer with DEC instructed the Defendant to clean up the area. Mr Beale and others applied butcher's paper to the pipes to cover the product and protect other birds as the Defendant had earlier removed the paper put up by WIRES. Mr Beale inspected the car park two days later and saw that the butcher's paper had again been removed. According to Mr Beale the pipes appeared to have been wiped and the product was now smeared over the pipe. He took a photograph of feathers stuck to a pipe, which is in evidence. 17 When Mr Beale inspected the car park a month later, he states that whilst the pipes had been cleaned, there was still some residue as the pipes were sticky to the touch. 18 According to Mr Allworth, veterinarian, over the days following the incident swallows were still being brought to the surgery and appeared to him to be affected.

Further Evidence 19 The Prosecutor relied on the affidavit of Mr Allworth, veterinarian, sworn 7 December 2005, annexed to which is a statement of what action he took relation to the collection and treatment of the affected birds. The treatment involved cleaning the birds with mineral turpentine, after it was found that solvents such as ZOFF and eucalyptus oil were ineffective. Mr Allworth stated in his affidavit that: Although the systemic toxicity of the substance is unknown to me, the birds would undoubtedly have died by other means if left untreated. The substance would not have evaporated, nor would the birds have the ability to clean it off their feathers. Left unable to fly, the primary cause of death would probably have been dehydration, if not starvation. The birds would not be able to seek shelter or generate body heat through physical activity, and so would suffer from hypothermia. They would easily fall prey to predators…

20 Also tendered in evidence (Exhibit B) was a bottle of the product used, "Scarecrow", which states on the label: Prevents pigeons, sparrows and starlings from perching and roosting where applied…Because of the soft, pliable nature of the material, the birds experience feelings of insecurity and discomfort, as [sic] a result will not settle on areas treated with this product…Do not apply to surfaces where non target protected bird species may settle…

The "Directions for Use" instructions on the bottle also state that the product is to be used on "Pests", being: Exotic birds, ie, pigeons, starlings, sparrows. 21 The Material Safety Data Sheet ("MSDS") for the product was also tendered by the Prosecutor. The MSDS is required to be produced by Worksafe Australia. It states that the product is: A ready-to-use non-drying sticky polymer based compound registered for use as a bird repellent by Professional Pest Control Operators…Scarecrow bird repellent presents no significant hazard at ambient temperatures and is generally of low acute toxicity but may cause eye irritation…No adverse health hazard therefore in general should be expected… 22 The Prosecutor sought leave to vary the first sentence of the Statement of Agreed Facts set out above in par 11 by relying on part of an affidavit by Richard McEvilly, a specialist investigator employed by DEC, sworn 31 January 2006, which annexed a transcript of a recorded interview with the Defendant by Mr McEvilly, on 27 April 2005. The Prosecution relied on the part of the interview where Mr McEvilly asked the Defendant the following question: On the 12 of April 2005 the NPWS was made aware of an incident involving the harming of a large number of swallows out at Bay Lane, Byron Bay. What can you tell me about this? According to the transcript of the interview, the Defendant replied: Swallows and sparrows had been an ongoing problem at the car park. There are two restaurants there, it had become a health problem. Cockroaches were getting into the bird droppings and breeding in it.

23 The Defendant agreed to this variation of the Statement of Agreed Facts but it became apparent later in the hearing when he gave oral evidence that this was not agreed. I do not consider the Statement of Agreed Facts should be so amended but rather this should be considered as a contested issue. In oral evidence the Defendant disputed that he stated in the record of interview relied on by the Prosecutor that he knew there was a problem with both sparrows and swallows. The Defendant swore in oral evidence that he had said he only knew of the presence of sparrows in the car park area.

Prosecutor's submissions 24 The Prosecutor submitted this was a serious matter given the circumstances of the offence and the considerable environmental harm caused by the death of, and injury to, so many birds. The Defendant was negligent and the offence could have been easily avoided. The Defendant made no attempt to determine what types of birds visited the affected area and whether these were non-target protected bird species. Further, no attempt was made to determine whether there were alternative methods to discourage the birds. The objective seriousness of the offence in terms of the maximum penalty and the objectives of the wildlife protection legislation suggest this is serious. Further the Defendant failed to clean up adequately. The Prosecutor argued that there was a need to consider general deterrence as provided for by s 3A(b) of the Crimes (Sentencing Procedure) Act 1999 and also specific deterrence. The circumstances of the case did not justify the application of s 10 of the Crimes (Sentencing Procedure) Act. The maximum penalty is $100,000 because of the number of dead birds. The Prosecutor is seeking $25,000. It also seeks its legal costs in the amount of $6500. Defendant's submissions 25 The Defendant relied on a written statement and gave short oral evidence. The statement said: I have been a painter and decorator in Byron Bay for the past 28 years.

Byron Strata Management has had an ongoing health problem with several thousand Sparrows roosting on the pipe work in the car park. I was hired to remove and pressure clean large amounts of bird droppings that had accumulated. In conversation with LIGHTHOUSE ENVIRONMENTALLY CONSCIOUS PEST CONTROL I was advised to use a product called SCARECROW BIRD REPELLENT. The directions for use on the tube and the product data sheet indicated "that the sparrows would experience feelings of insecurity and discomfort and as a result would not settle on areas treated with this product"…

Unbeknownst to me Swallows were affected by these products and at no time did I intend to harm any birds and especially native birds.

As soon as the Manager at the National Parks and wild life office rang me to notify me that there was a problem I cooperated fully by going down to the car park with ladders and extra help to remove the product from pipe work.

I was devastated by the results of using Scarecrow Bird Repellent after being told this product would not harm the birds and this is clearly written on the label, also it was applied exactly in accordance with the "Critical Comments" instructions.

At no time did we believe that protected species would be affected.

The staff from WIRES put the affected birds in a box, after which they were washed with kerosene and I offered to do whatever I could… 26 The Defendant submitted that no conviction should be recorded against him. He did not intentionally cause harm to any birds. He stated that he was asked to remove a large number of sparrows which were roosting on the pipe work in the car park by Byron Strata Management as part of work that he undertook for that body. He was not aware that swallows were adversely affected by the product. He also considers that he fully cooperated with the Manager of the NPWS in cleaning up the area after the incident. 27 He further submitted a number of birds died or were harmed by the treatment administered at the veterinary clinic where the birds were cleaned with mineral turpentine. Purposes of sentencing for environmental offences 28 Section 3A of the Crimes (Sentencing Procedure) Act 1999 states the purposes for which the Court may impose a sentence on the defendant to be as follows: (a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(e) to make the offender accountable for his or her actions,

(g) to recognise the harm done to the victim of the crime and the community. This section commenced in 1 February 2003 and therefore applies. 29 In J R Bentley v BGP Properties Pty Limited [2006] NSWLEC 34, Preston J considered s 3A in the context of sentencing for environmental offences. His Honour referred to the principle in Veen v R (No 2) (1988) 164 CLR 465 at 476 where Mason CJ, Brennan, Dawson and Toohey JJ stated: The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.

30 I consider sections (a), (b), (e) (f) and (g) of s 3A are particularly relevant in this matter.

31 The statutory scheme in the NPW Act under which the offence was committed is directed to the protection of native and other wildlife, an important environmental objective. Section 2A of the Act states: (1) The objects of this Act are as follows: (a) The conservation of nature, including, but not limited to, the conservation of: (i) habitat, ecosystems and ecosystem processes, and (ii) biological diversity at the community, species and genetic levels, and (iii) landforms of significance, including geological features and processes, and (iv) landscapes and natural features of significance including wilderness and wild rivers … (c) fostering public appreciation, understanding and enjoyment of nature and cultural heritage and their conservation, (d) providing for the management of land reserved under this Act in accordance with the management principles applicable for each type of reservation. 32 This offence is one of several directed to the protection of wild fauna under the NPW Act to give effect to these objects. Sentences made in relation to environmental offences must embrace powerful considerations of general deterrence: see Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357, per Badgery-Parker J at 367. Approach to sentencing Objective circumstances of the offence 33 The High Court in Veen v R (No 1) (1979) 143 CLR 458 held at 490 that a basic principle of sentencing law is that the sentence must reflect both the objective circumstances of the offence and the subjective circumstances of the defendant. In J R Bentley, Preston J held at [163] that the objective circumstances that the Court may consider are: (a) the maximum penalty for the offence; (b) the objective seriousness of the offence having regard to its place in the statutory scheme; (c) the harm caused to the environment, and particularly the components of the environment harmed in the short and long term by the commission of the offence; (d) the state of mind of the offender in committing the offence; (e) the foreseeability of the risk of harm; (f) the practical measures to avoid foreseeable risk of harm; and; (g) the reasons for commission of the offence.

34 Regard must be had to the culpability of the Defendant and the individual circumstances which led to the commission of the offence. The sentence must be proportional to the gravity of the crime. Maximum penalty 35 The Court should have regard to the maximum penalty applicable, as this is an expression of the seriousness Parliament attributes to the offence: see Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698. In Axer, Mahoney J stated at 359: The quantum of the fines which the legislation allows to be imposed has no doubt been fixed not merely to indicate the seriousness with which such pollution is regarded but also to deter those engaged in such activities and to procure that they will take the precautions necessary to ensure that it does not occur. 36 The Prosecutor argued the maximum penalty is $96,800, being $11,000 plus an additional $1,100 for each of the 78 Welcome Sparrows harmed as provided in s 98(2) of the NPW Act. The Prosecutor is seeking a penalty of up to $25,000, being approximately one quarter of the total maximum penalty.

State of mind of offender 37 The Prosecutor has alleged that the Defendant was negligent and that the harm could easily have been avoided by reading the label on the product bottle, which directs that the product must be used only in relation to the targeted species - sparrows, pigeons and starlings. He failed to take adequate precautions when he was aware of the possibility that swallows were in the area. In regards to the environmental impacts of the product, the MSDS also states: DO NOT apply where protected or non-target bird species may become entrapped.

38 I accept the Defendant's submissions that he did not intentionally or deliberately cause harm to the swallows, and I would characterise his behaviour as careless and unthinking. His culpability is not, in my view, as serious as the Prosecutor submits. There is a dispute between the Prosecutor and Defendant as to whether the Defendant admitted in the record of interview that there was a problem with sparrows and swallows. The Defendant said in his oral evidence and written statement that he was only aware of sparrows, a species which the bird repellent targets, in the car park. On a plea of guilty the Prosecutor has to prove matters adverse to the Defendant beyond reasonable doubt; R v Olbrich (1999) 199 CLR 270. On this issue, I consider that the Prosecutor has not done so. I do not therefore accept that the Defendant should be considered to have deliberately used the bird repellent product knowing there was the possibility of swallows being in the car park. Objective seriousness/environmental harm 39 The objects of the legislation set out above at par 31 and the nature of the offence suggest the offence is an objectively serious one. There was clearly significant harm caused to the environment in terms of the number of birds killed and injured. The offence is not a trivial breach of the legislation. I do not accept the submissions of the Defendant at par 27, who did not claim to have any relevant qualifications or experience in the handling of native birds, that the treatment of the birds at the veterinary clinic caused injury and death rather than contact with the "Scarecrow" bird repellent. I accept the evidence of Mr Allworth, veterinarian, set out at par 19 that without the treatment administered at the veterinary clinic the birds would have died. Foreseeability of risk of harm 40 There were other practical measures to avoid harm being caused. As identified in the statement of agreed facts a nearby hotel used foil on pipes to deal with a similar bird problem. Further, more care could had been taken by the Defendant to determine whether non-target species were likely to be affected. Reasons for commission of offence: what was benefit to Defendant 41 The reason for the commission of the offence was to remove birds in a car park which was near two restaurants. The statement of agreed facts states that the Defendant was concerned with the human health impacts from the birds. The Defendant carried out the work in the course of his general employment. Apart from being paid to undertake the work he does not appear to have obtained any additional financial benefit. The Defendant clearly considered he was undertaking this work in the course of his usual duties at the site. Section 10 Crimes (Sentencing Procedure) Act 1999 42 The Defendant argued that s 10 of the Crimes (Sentencing Procedure) Act should be applied and no conviction be recorded. 43 Section 10(1) of the Crimes (Sentencing Procedure) Act 1999 provides: Without proceeding to conviction, a court that finds a person guilty of an offence may make either of the following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years Subsection (3) states: (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health 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…

44 In Thorneloe v Filipowski [2001] 52 NSWLR 60, Spiegelman CJ stated at 72 that: The discretion conferred by s 10 is wide-ranging. There is no warrant for treating the scope and range of matters which it is "proper" for a sentencing judge to take into account in a narrow way. Nevertheless, it is a discretion which must be exercised judicially. The identification of relevant considerations turns on the scope and purpose of s 10. At 76, Spiegelman CJ also stated: It is, in my opinion, relevant to the exercise of the discretion under s 10 of the Sentencing Act, in the context of a strict liability offence, to consider what the applicant for the benefit of s 10 could have done to avert the event that has occurred. While questions of weight are always for the sentencing judge, it is unlikely that this consideration will be given determinative weight in the case of a serious offence or a repeat offender. Where, as here, there was a comparatively minor pollution by a first offender, this consideration is entitled to weight.

45 In Newcastle City Council v Pace Farm Egg Products [No 3] [2005] NSWLEC 423, I stated at [24]-[25] that: Several cases have made it clear that s 10 of the Crimes (Sentencing Procedure) Act… is rarely applied in pollution cases. In Environment Protection Authority v Attard [2000] NSWCCA 242, Sperling J (with whom Mason P and Smart AJ agreed) stated at [5] that [it] would only be applied in exceptional circumstances. In Hunter Water Board v State Rail Authority of New South Wales [No 2] (1992) 75 LGRA 22, Stein J at 23 said: This Court has not infrequently stated that it will be a rare case when a dismissal under [the equivalent to s 10] is seen as appropriate for an environmental offence…

46 Considering the matters specified in s 10(3), the offence in this case is not trivial (s 10(3)(b)) and there are no extenuating circumstances (s 10(3)(c)). While I accept that the Defendant is of good character and has no prior convictions (as set out below at par 60), this does not justify the application of s 10 under s 10(3)(a). I therefore decline to apply s 10 in the circumstances of this matter. Specific deterrence 47 I do not consider the Defendant's actions suggest that he is likely to repeat this offence. Indeed his evidence is that he has not used the product since the offence and has no intention of doing so. Evenhandedness 48 A principle of sentencing is that like offences in similar circumstances incur similar penalties. There are no prosecutions under this particular section in this Court to consider. Mobbs was a prosecution for taking endangered fauna, brought under s 99(1)(a) of the previous NPW Act; a similar, but not identical, offence. The offence was committed when the defendant cleared away the undergrowth of a rural property. It was held that the defendant did not know he was committing an offence when he undertook the land clearing activity, since the offence was one of strict liability he was not exculpated. The maximum penalty at the date of the offence was $20,000. Given the serious nature of the offence and the adverse impacts it had on koala habitats, and weighing these against relevant mitigating factors such as evidence of contriteness, lack of prior conviction, co-operation with the prosecution and an early plea of guilty, Bignold J held the appropriate penalty was $5000.

49 The Prosecutor also put before me a table of cases brought in the Local Court for the offence of harming protected fauna under the NPW Act. Penalties imposed were in the range of $200-$2000 plus court costs, including two cases which imposed two year good behaviour bonds in lieu of a monetary fine.

50 The facts in Mobbs are arguably less serious. The Local Court cases, with lower penalties, are also not useful for comparison with the current matter before me. Means of the Defendant to pay 51 Under s 6 of the Fines Act 1996, in the exercise of its discretion to fix the amount of any fine, the Court is required to consider such information regarding the means of the accused as is reasonably and practicably available for the Court's consideration and such other matters as are relevant, in the opinion of the Court, to the fixing of that amount.

52 The Defendant stated that he is the sole income provider for his family of four. The Defendant tendered a letter from his accountant stating that his income had been reduced since the incident. The letter stated: Their business has seen a reduction in income by 35% when comparing the 2005 and 2006 financial years. The drastic reduction in income is based on the second half earnings of the 2006 financial year being reduced by nearly $50,000, which on an annual basis calculates as a loss of approximately 35% of assessable income.

53 At the hearing I told the Defendant that this information was insufficient to enable me to consider his capacity to pay a fine under s 6 of the Fines Act. The Defendant was given two weeks after the hearing on sentence to provide further sworn evidence in relation to his financial position but has not done so. Accordingly there is little basis on which to assess his capacity to pay a monetary fine as I do not have any information about his assets and liabilities, savings and overall income position apart from the above material to enable such an assessment. 54 I note that there is provision in s 10 of the Fines Act 1996 for application for additional time to pay the fine to be made to the Registrar of the Court. Penalty 55 In my opinion, the circumstances of the offence warrant that a penalty of $15,000 representing 15.5 per cent of the maximum penalty, should be imposed. Mitigating/subjective factors 56 There are a number of mitigating factors that should be taken into account to reduce that penalty. Guilty plea 57 Firstly, the Defendant pleaded guilty at the earliest opportunity. A plea of guilty entitles the Defendant to a discount in penalty under s 22 of the Crimes (Sentencing Procedure) Act 1999 in the range of 10-25 per cent: R v Thomson; R v Houlton (2000) 49 NSWLR 383; R v Sharma (2002) 54 NSWLR 300. Other mitigating factors 58 The Defendant has expressed contrition and remorse in his submissions and I accept his statements to that effect. 59 The Defendant has cooperated with the Prosecutor in the investigation including in the preparation of the statement of agreed facts. 60 The Defendant has no prior record for any offence of any kind. The Defendant also brought to the Court a number of references from a range of people who have known him for a number of years which attest to his good character. All the references were made in the knowledge that he had been charged with this offence. I accept that the Defendant is of good character and that this offence is quite out of keeping with his usual behaviour. The references and the Defendant also referred to the substantial impact the offence has had on him in the local area in terms of an adverse effect on his business and personal life due to negative publicity surrounding the event.

61 In all the circumstances I think that the Defendant's penalty should be discounted by a total of 40 per cent and consider that a fine of $9,000 is appropriate.

Costs 62 The Prosecutor seeks costs of $6,500. The Defendant argued that he should not have to pay any costs. The Prosecutor is generally entitled to an amount of costs in matters of this kind. I will order that costs be paid as agreed or assessed. General comments 63 The comment I make now is directed at the Prosecutor and is not in any way directed at the Defendant. I would have been assisted by the Prosecutor bringing forward more material on the regulatory framework which relates to "Scarecrow" under Commonwealth and New South Wales legislation for the regulation of chemical products, including in relation to the label on the bottle of the product and the MSDS supplied by the manufacturer, in understanding all the circumstances relied on by the Prosecutor in a matter it argued was serious.

Orders 64 The Court orders that:

The Defendant is convicted of the offence with which he is charged.
The Defendant is fined the sum of $9,000 to be paid to the Registrar of the Court within 28 days of today's date.
The Defendant must pay the Prosecutor's costs of the proceedings against him, as agreed or assessed.
The exhibits may be returned.

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.

(1993) 113 LGERA 357

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