Moore v Environment Protection Authority

Crimes (Sentencing Procedure) Act 1999

1. Relevant sections of the CSP Act state: Part 1 Preliminary … 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are 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, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. … Part 2 Penalties that may be imposed … Division 3 Non-custodial alternatives … 9 Conditional release orders (1) Instead of imposing a sentence of imprisonment or a fine (or both) on an offender, a court that finds a person guilty of an offence may make a conditional release order discharging the offender, if - (a) the court proceeds to conviction, or (b) the court does not proceed to conviction but makes an order under section 10 (1) (b). (2) In deciding whether to make a conditional release order with a conviction, the sentencing court is to have regard to the following factors - (a) the person's character, antecedents, age, health and mental condition, (b) whether the offence is of a trivial nature, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. (3) To avoid doubt and without limitation - (a) a fine and a conditional release order cannot be imposed in relation to the offender in respect of the same offence, and (b) a conditional release order with a conviction may be made as an alternative to imposing a fine. (4) This section is subject to the provisions of Part 8. 10 Dismissal of charges and conditional discharge of offender (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders - … (b) an order discharging the person under a conditional release order (in which case the court proceeds to make a conditional release order under section 9), … (1A) A reference in any legislation (including this Act) to an order under this section includes, in the case of an order under subsection (1) (b), a reference to a conditional release order made under section 9 pursuant to that paragraph. (2) An order referred to in subsection (1) (b) may be made if the court is satisfied - (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to discharge the person under a conditional release order. … (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.
2. The CSP Act (in particular, Pt 3 Div 1) contains provisions relevant to sentencing procedures. Section 21A of the CSP Act sets out aggravating (subs (2)), mitigating (subs (3)) and other factors to be taken into account in sentencing.

Pesticides Act 1999

1. In identifying objective circumstances relevant to sentencing the Pesticides Act states: Part 1 Preliminary … 3 Objects of this Act The objects of this Act are as follows - (a) to promote the protection of human health, the environment, property and trade in relation to the use of pesticides, having regard to the principles of ecologically sustainable development within the meaning of the Protection of the Environment Administration Act 1991, (b) to minimise risks to human health, the environment, property and trade, (c) to promote collaborative and integrated policies in relation to the use of pesticides, (d) to establish a legislative framework to regulate the use of pesticides. … Part 2 Control of pesticides … Division 2 Misuse of pesticides 10 Injury to persons or damage to property resulting from pesticide use (1) A person must not use a pesticide in a manner that - (a) injures or is likely to injure any other person, or (b) damages or is likely to damage any property of another person. Maximum penalty - (a) $120,000 in the case of a corporation, or (b) $60,000 in the case of an individual. … (3) "Due diligence" defence It is a defence in any proceedings against a person for an offence under this section if the person establishes - (a) that the commission of the offence was due to causes over which the person had no control, and (b) that the person took all reasonable precautions and exercised all due diligence to prevent the commission of the offence. … Part 10 Procedural provisions … Division 6 Other procedural provisions … 109 Matters to be considered in imposing penalty (1) In imposing a penalty for an offence under this Act or the regulations, the court is to take into consideration the following (so far as they are relevant) - (a) the extent of the injury, damage or harm caused or likely to be caused by the commission of the offence, (b) the practical measures that may be taken to prevent, control, abate or mitigate any such injury, damage or harm, (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, (d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence, (e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee, (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), (g) whether the person who committed the offence complied with any relevant pesticide code of practice. (2) The court may take into consideration other matters that it considers relevant. … 111 Causing or permitting offence (1) A person who causes or permits, by act or omission, another person to commit an offence under a provision of this Act or the regulations is guilty of an offence under that provision and is liable, on conviction, to the same penalty applicable to an offence under that provision. …

Evidence relevant to sentencing

1. The extensive circumstances relevant to the conviction appeal are identified in Moore No 1 including agreed facts before the Local Court at [9], evidence before the Local Court at [10]-[66], new evidence of Professor Weatherby allowed in the conviction appeal at [68]-[77], the magistrate's findings of guilt based in large part on acceptance of Mr Sansom's credit at [79], the magistrate's findings that the due diligence defence was not proven at [80] and my findings at [167]-[223] to similar effect. I found that the EPA had proved beyond reasonable doubt that Mr Sansom was exposed in his car to the pesticide diazinon while driving along Friday Hut Road as a result of the Appellant's employee Mr Battistuzzi using a spray rig around 9:00 am on 18 August 2017 when the wind was blowing in a westerly direction. Mr Sansom was injured within the meaning of the definition in the Pesticides Act as a result of that exposure, experiencing symptoms immediately on exposure which lasted for several days, resulting in him seeking medical treatment on 31 August 2017 (see Moore No 1 at [21]-[24]).
2. Section 10(3) of the Pesticides Act provides that a defence can be established if the person proves that, firstly, the commission of the offence was due to causes over which the person had no control and, secondly, that all reasonable precautions were taken and all due diligence exercised. The defence of due diligence was considered in Moore No 1 at [217]-[223] and found not to be established. The causes were matters over which control could be exercised including that when spraying by Mr Battistuzzi took place the wind was blowing in a westerly direction from the Appellant's property towards the public road on which Mr Sansom was driving in his car. Additionally, Mr Sansom was a neighbour and had not been notified as relevant guidelines suggested should be done.

Appellant's additional evidence

1. For the sentencing appeal the Appellant relied on additional evidence from the Local Court most of which was not referred to in the conviction appeal.

Evidence relied on in relation to s 109(1)(d)

1. The following evidence given by the Appellant in the Local Court on 3 December 2019 was relied on in relation to control over causes that gave rise to the offence (s 109(1)(d)): 1. Employees on the Appellant's property were trained in the use of chemicals which included completing a two-day chemical user certificate training course. Both employees working on the Appellant's property on 18 August 2017 held current chemical user certificates. 2. A few days before a spray round began the Appellant would discuss with his employees what preparations needed to be made including with reference to the ChemCert spray manual. The Appellant consulted with his staff on appropriate conditions for spray application. 3. Manuals for equipment, workplace safety and sound orchard practice were kept on the property and made available for each employee to access. These included relevant articles from the Australian Macadamia Society. 4. The Appellant paid his employees a mobile phone allowance so they could use their mobile phones to communicate with each other and the Appellant about conditions on the property. 5. The machinery was calibrated prior to undertaking the spray on 18 August 2017. 6. The Appellant purchased two spray rigs so that spraying could be completed during the day when it is most effective, efficient and safe to do so. 7. The Appellant used flagging tap on trees in the orchard to detect wind conditions. His employees also observed the how much the tops of the trees were moving. 8. Buffer zones were used to prevent off-site spray drift. Tall camphor and pine trees plus an access road acted as a buffer between the Appellant's property and Friday Hut Road, apart from one section of 100-130 metres where there were no buffer trees. 9. On 18 August 2017 the Appellant observed wind conditions as follows: Q. On 18 August 2017 did you observe the wind on that day? A. Yes. Q. What was your view in relation to the wind conditions? A. It was acceptable from where I was, but don't forget we have a farm that spans 160 acres and I can't be in every position to ascertain it, but that's where I rely on my workers to keep a good eye on what they're doing in the location where they are and they do, but they will stop when they need to. 1. The Appellant used the Beaufort scale, an industry approved standard, to assess wind conditions on the property. The equipment was already calibrated, then it was a matter of filling the tanks with the water and compound to be used and looking at the actual farm to see if there was any wind. If the Appellant's employees were spraying near a buffer zone, they would spray one side of the trees facing away from the buffer zone. There was also flagging tape attached to trees and poles at various places on the property to assess wind speeds. 2. On the morning of 18 August 20217 the Appellant was in the central part of the property. The wind conditions were assessed as being appropriate for spraying and his employees filled their tanks and started spraying. The wind picked up about 11:00 am, both sprayers stopped spraying and came back. Spraying recommenced at about 12:30 pm when the wind dropped down. At about 2:00 pm spraying stopped on the property because the wind was coming up again. 3. Steps the Appellant took for each spray event to ensure compliance with industry standards included considering buffer zones, being aware of wind conditions and potential for spray drift, providing protective clothing for his employees, calibrating equipment, putting an activated carbon filter in the spray tractor to collect any chemical, spraying during daylight hours to avoid inversion drift, and informing residents in the dwelling on the Appellant's property ahead of spraying. 4. A sign on the front gate of the Appellant's property requests that people call before entering to ensure they do not enter the property whilst spraying is occurring.
2. Ms Amber Ford, who resides in a house on the Appellant's property, gave a written statement dated 8 August 2019 (Local Court Ex 27). Ms Ford stated that Mr Battistuzzi is always very proactive in keeping her informed of the spraying schedule at the Appellant's property and if it is going to be near the house.
3. Mr Battistuzzi has worked at the Appellant's property for about 25 years and has sprayed pesticide thousands of times.
4. The Appellant gave the following evidence in his record of interview (ROI) with Ms Michelle Roberts, EPA officer, on 20 March 2018 (Local Court Ex 22): 1. The Appellant completed the relevant training and obtained a certificate to use and apply chemicals. 2. Pest monitors visit the property, scout the property for pests and advise in a written report whether the Appellant should spray pesticide and if so what procedure to follow. 3. Pesticides are applied on the Appellant's property following procedures set out in the chemical accreditation resources manual, industry articles and instructions on pesticide containers. 4. The Appellant keeps a record of the chemical certificates held by each of his employees. 5. The procedure for mixing chemicals to go into the spray rig includes having one person measure the amount of chemical and another person checking that the right chemical and right amount is being used in what the Appellant called a "double up system". 6. The Appellant uses the "Weatherzone" application on his phone to check the weather forecast as well as listening to weather reports in the morning on the local radio and applying local knowledge. 7. Weather assessments are conducted on the morning of a proposed spray day. 8. The Appellant uses his own employees to perform the spray applications not contractors which means that there is no pressure to administer the spray. If weather conditions are inappropriate, they do something else on the property instead of spraying. 9. The Appellant briefs his employees on spray application rather than giving them directions remotely. 10. Safety protocols are put in place for every spray such as calibrating the equipment at the start of every spray season. Workers wear personal protective equipment. There are buffer zones. The Appellant's employees spray when the wind is coming from an appropriate direction, generally from the west. The Appellant refers to the code of standard orchard practice and ChemCert accreditation. 11. The Appellant has previously conducted spray drift testing by using coloured dye and water sensitive paper to establish how far spray moves under ideal conditions. 12. The Appellant monitors the amount of chemicals being used for each spray application to ensure the right amount is being used and there is no over spraying. 13. The Appellant leaves a note in his neighbour's mailbox before spraying. This did not extend to notifying the Johnsons.
5. In relation to the Beaufort scale, Mr Peter Lynch EPA officer gave the following evidence in the Local Court (Tcpt, 15 October 2019, p 14): Q. So the Beaufort scale as at August 2017 would have been an acceptable scale in terms of the EPA standards at the time for farmers spraying? A. That's correct.
6. A "Pesticide record keeping fact sheet" dated December 2017 extracted from the EPA's website (Local Court Ex 16) included the Beaufort scale on page 3 and stated "[t]his modified Beaufort scale is provided to help you determine wind speed for the pesticide record keeping purposes." On page 2 the fact sheet stated under the heading "What information do I have to record?": … if you were outdoors and sprayed the pesticide through the air (for example, using a boom spray) you also need to record: An estimate of the wind speed and direction at the start of the application and any significant wind changes during the application. You can use the adapted Beaufort scale at the end of this fact sheet to help estimate the wind speed. Copies of the Beaufort scale are also available from the Bureau of Meteorology website
7. In cross-examination in the Local Court the Appellant gave evidence that the Beaufort scale was the most reliable method for assessing wind conditions when out in the field, notwithstanding the installation of a wind monitor on the property (Tcpt, 3 December 2019, pp 68-71).

Evidence relied on in relation to s 109(1)(g)

1. The Appellant relied on the following evidence in relation to compliance with pesticide codes of practice (s 109(1)(g)): 1. The Appellant gave evidence in the Local Court that before spraying, the equipment is calibrated, wind conditions on the property are assessed and his employees put on personal protective equipment. 2. Mr Battistuzzi gave evidence in the Local Court that he had listened to the weather forecast and visually assessed weather conditions on the morning of 18 August 2017. Mr Battistuzzi would check wind conditions on various parts of the property before filing the spray tank. Mr Battistuzzi observed the spray whilst spraying to ensure it was not going too far over the trees and to make sure the wind direction had not changed, or wind speed increased. When spraying close to a boundary Mr Battistuzzi made sure to spray using only one side of the spray rig and so that the spray went back into the property. 3. The Appellant gave evidence in the Local Court that there are buffer zones on the property where particular care is taken including only using one side of the spray rig and spraying away from the buffer zone. The Appellant does everything he can to ensure he is compliant with the regulations on pesticide application and to try to avoid any spray drift including considering buffer zones and being aware of the presence of neighbours and wind conditions. 4. The Appellant stated in the Local Court (Tcpt, 3 December 2019, pp 51- 55): Q. In terms of going to the property for a spray, you go there, you assess the wind using the Beaufort scale. What else do you do? A. Well, then, we will - this is - we've already had our equipment calibrated, serviced, ready to go, and it's just then a matter of filling the tanks with the water and the compound we're going to use, and then we look at the actual farm and if there is any wind, and bearing in mind what Dr Hewitt said, we have to have 3 kilometres an hour of wind before we are legal to spray. So we then have to look and say, well, we can't spray there because that's 3 kilometres going the wrong way, so we will go somewhere else on the farm, and if you look at our records you'll see over a three or four day period when we spray, each day has a little block here, a little block there and it's all based on which way the wind is blowing. Q. Is it the case that you might spray different areas of the farm at different times? A. Yes, most definitely. Q. Why is that decision made? A. Well, it's based on the wind. If there is little to no wind that doesn't worry us, well, then, we can go and spray pretty well anywhere, but say if we've got seven or 8 kilometres an hour of wind, which is still quite okay for spraying, we don't spray anywhere where it can go into our buffer sensitive areas. Q. If you can talk about the buffer zones that are on your property, what kind of buffer zones are there on the property? A. Well, they're just buffer zones and they're zones where we have a particular way of dealing with those. Our sprayer spray on two sides. So we've got a sprayer that sprays out two sides. What we do, where our buffer zones are, if it is a problem, we will turn off one side and only spray one side of the trees spraying away from the buffer zone. Q. Is that something that you understand your staff to also employ? A. Exactly. They're trained to do that and they do it very well. … Q. Just in terms of the topography of the farm, can you describe to the Court whether or not it's a flat farm with a continuous surface or is it one that has hills and undulations? A. It has lots of undulations. That's why we called it "Wingvale", because it has lots of undulations. You know, some parts of the farm are quite easy to spray on a certain wind; other parts you wouldn't even go near them. The wind strength is the same, it could be a bit more, but they're more exposed. There are areas where we have large tracts of large forest trees around us. Anywhere near them, they act as a windbreak. Whereas on some of the other parts of the farm there aren't these large trees and they're more open to the environment and we get higher winds. … Q. In terms of ensuring compliance with the application of pesticides, can you discuss whether or not there's any consideration of areas where there shouldn't be spray? A. Definitely, and that is dependent on the weather conditions at the time and that is why you'll see on our farm spray maps, that we move all over the farm on the same day, depending on where the wind is coming from, and based on the fact we've got to have 3 kilometres an hour minimum to even go out with our sprayers, so we have to move around, and we use that criteria to work out where we will spray on the farm at that particular time to avoid any spray drift. … Q. In terms of the particular rows that were sprayed on that day, were there particular rows chosen? A. Yes. 1. Mr Battistuzzi gave evidence in the Local Court that he always considers wind conditions before spraying. The Appellant's property has a varied topography so that wind conditions may be different on different parts of the property. The Appellant's employees move to different areas for spraying depending on the wind conditions.

Character references

1. The Appellant tendered the following four character references from the Local Court (Ex D). Mr Jolyon Burnett, Chief Executive Officer of the Australian Macadamia Society, stated that he was aware the Appellant was before the Local Court for sentencing. Mr Burnett had known the Appellant since 2010. Mr Burnett stated that he believed the Appellant's offending was highly contrary to the Appellant's professional work ethic and disposition. The Appellant is honest, ethical and thorough with a commitment to propriety. Mr Burnett had no doubt that the Appellant would ensure his offending did not reoccur.
2. Dr Colin McDonald, the Appellant's doctor since 2000 and friend, provided a reference dated 10 December 2018. No reference was made to these proceedings. Dr McDonald had attended many social occasions with the Appellant, given their mutual membership and participation in the activities of the Ballina Returned and Services League Club Ltd (Ballina RSL). He viewed the Appellant as intelligent, honest, very reliable, a loyal Australian with an excellent work ethic and someone Dr McDonald trusted without reservation.
3. Mr John Gillet, a friend and neighbour of the Appellant who had known him for 30 years, provided a reference dated 21 June 2020. No reference was made to these proceedings. Mr Gillet noted the Appellant's wisdom, intelligence, worldliness, and above all fairness. He stated that the Appellant brought high standards of engineering innovation, data recording and problem-solving skills to his occupation, and that his property was an exemplar in the industry. Mr Gillet emphasised the Appellant's cool head and sense of fairness in business and labelled the Appellant a "champion of the macadamia industry".
4. Rev Richard Brown, who had known the Appellant since 2008, provided a reference dated 11 March 2019. No reference was made to these proceedings. Rev Brown regarded the Appellant as a man of integrity in dealings with the wider community of Ballina including with respect to caring for the environment, including through his farming practices. The Appellant has shown empathy towards others in the region, especially towards younger homeless veterans within the Ballina Shire. The Appellant showed a keen sense of responsibility when conducting himself as President, member of the Board of Directors and Trustee of Ballina RSL.

Objective circumstances

1. A number of matters may be considered in determining the objective seriousness of the offence, such as the nature of the offence, the maximum penalty and reasons for the offence. The offence arises under the Pesticides Act, is a strict liability offence and has a maximum penalty for an individual of $60,000.

Nature of offence

1. The relevant objects of s 3 of the Pesticides Act are reproduced above in [8]. These include minimisation of risks to human health (subs (b)) and promotion of protection of human health (subs (a)) inter alia. The offence provision in s 10(1)(a) is directed to achieving the objects of the Pesticides Act.

Reasons for the offence / state of mind

1. As outlined above the exposure occurred in the course of commercial (macadamia farming) activity.
2. No aggravation of the offence is alleged to arise from the Appellant's state of mind.

Section 109(1) of the Pesticides Act

1. The Pesticides Act requires the Court to take into account relevant matters in s 109(1) in determining the sentence to be imposed for an offence against that Act.

Extent of injury, s 109(1)(a)

1. Under s 109(1)(a) the Appellant submitted that the injury to Mr Sansom was minimal and not prolonged, being temporary and not long term. The EPA submitted the injury suffered by Mr Sansom was not insignificant.

Practical measures, s 109(1)(b)

1. Under s 109(1)(b) concerning the practical measures that may be taken to prevent, control, abate or mitigate injury caused, the Appellant submitted that after the event he immediately implemented steps including: 1. installing a wind monitor; 2. notifying neighbours of intended spraying activity.
2. The Appellant already had extensive practices in place to prevent, control, mitigate or abate damage and these were referred to in the Appellant's evidence in the Local Court (see above in [12], [19]) and the ROI on 20 March 2018 summarised above in [15]).
3. The EPA submitted that the Appellant appeared to have taken a number of practical measures to prevent, control, abate or mitigate the risk of such injury or harm occurring again. Those measures were straightforward, relatively inexpensive and ought to have been taken prior to the offending.

Foreseeability of injury, s 109(1)(c)

1. Under s 109(1)(c) the Appellant submitted that the extent to which he could have foreseen the injury to Mr Sansom was very limited for the following reasons: 1. Mr Battistuzzi the spray rig operator had over 25-years' experience working on the Appellant's property and thereby had an intimate knowledge of the property including any risk areas; 2. the property had been owned by the Appellant for over 29 years with no previous spray drift incidents; 3. the offence was momentary and occurred as Mr Sansom travelled along Friday Hut Road at 60 km/hr with his car windows down. The likelihood of the complainant being in a position where spray drift would enter his vehicle was unlikely and difficult to foresee.
2. The EPA submitted that the injury or harm caused or likely to be caused by the offence was readily foreseeable and in fact foreseen by the Appellant and his employees.

Control over causes, s 109(1)(d)

1. Under s 109(1)(d) the Appellant submitted that whilst he ultimately had control over what occurred, since he owned the property and due to the extended liability provisions in the Pesticides Act, the Appellant took extensive precautions as set out above in [12]-[18]. There is evidence that the Appellant conducted regular training sessions and of strict reliance on compliance by his workers.
2. There were safety protocols in place throughout the property, which the Appellant submitted would generally prevent the commission of an offence. The Appellant's ability to control the causes that gave rise to the offence was minimal in the circumstances. The installation of a wind monitor, whilst a step to prevent future drift events, does not modify the need to use the Beaufort scale in wind assessment, as identified in the EPA's factsheet above in [17].
3. The Appellant submitted that notifying Ms Ford of the particular spray application on 18 August 2017 indicated an adherence to the regulations (see above in [13]). In relation to notification of the Johnsons, the Appellant submitted that there was no common boundary shared with the Johnson property.
4. The EPA submitted that the Appellant had complete control over whether and in what weather conditions his employees would operate the spraying machinery. The decision to spray in adverse conditions was one over which the Appellant and his employees had complete control.

Complying with orders from an employer, s 109(1)(e)

1. The Appellant submitted that s 109(1)(e) concerning whether in committing the offence the person was complying with orders from an employer or supervising employee was not relevant. The EPA submitted that the Appellant was the employer.

Type of corporation concerned, s 109(1)(f)

1. Under s 109(1)(f) the Appellant submitted that the type of corporation concerned was a family owned business. The EPA submitted that s 109(1)(f) was not applicable.

Compliance with pesticide code of practice, s 109(1)(g)

1. The relevant pesticide codes of practice were identified in Moore No 1 at [46]-[49] as the Australian Macadamia Society's Best Practice Guidelines for the Application of Chemicals in Macadamia Orchards (July 2011), the Commonwealth Primary Industries Standing Committee's Spray Drift Management: Principles Strategies and Supporting Information (October 2002) and ChemCert Australia's Chemical Users Handbook.
2. Under s 109(1)(g) the Appellant submitted that he complied with the relevant code of practice in all other ways including: 1. the Appellant trained and supervised his staff, which included undertaking measures to ensure compliance with the regulations and industry practices of spray application; 2. the Appellant had been employed throughout his life in positions of significance including the Australian Air Force and as an aircraft engineer for Cathay Pacific Airways Ltd, being required at all times to abide by rules and regulations; 3. the Appellant oversaw and ensured calibration of machinery before the spraying commenced in August 2017 which included calibrating the machinery to the correct heights of the trees; 4. the Appellant and all his staff were accredited in relation to chemical application; 5. a significant degree of planning went into the spraying process on 18 August 2017 including all relevant checks of the weather forecast, actual conditions and on-farm conditions, well before any tanks were prepared or spraying commenced; 6. buffer zones, awareness zones and sensitive areas were considered in relation to the spray application on 18 August 2017; 7. only specific areas of the property were sprayed on 18 August 2017 conducive with the conditions on-farm.
3. The evidence supporting the submissions immediately above is summarised in [19].
4. The EPA submitted that the Appellant and his employees failed to comply with industry guidelines in a number of respects.

Conclusion on objective seriousness

1. The offence is in the mid-level of the low range of objective seriousness. The offence is certainly not trivial given that injury to Mr Sansom resulted from exposure to diazinon, causing symptoms lasting for several days for which he sought medical treatment. The spraying that caused exposure was carried out in the course of a commercial operation which calls for a high standard of care. The Appellant was not successful in establishing the due diligence defence in his conviction appeal. He did not notify all the neighbours he should have notified in accordance with relevant codes of practice and his employee Mr Battistuzzi sprayed diazinon when the wind was coming from the west when he should not have. The Appellant's liability for the actions of his employee arose under s 111(1) of the Pesticides Act.
2. Considering further matters relevant to sentencing under s 109(1) of the Pesticides Act, the practical measures taken after the event by the Appellant were installing a wind monitor, no longer using diazinon and notifying neighbours of intended spraying activity, beyond the tenant renting a house on his property, inter alia. In relation to the likelihood of harm, the Appellant essentially submitted that the offence was not foreseeable by him given the substantial experience of the operator, his operation of the property for 29 years without similar incident and that the offence was momentary. As the EPA submitted the offence having occurred, the harm was foreseeable in that exposure to diazinon has potential health impacts. I do not accept the submission above in [34] that the harm was foreseen.
3. In terms of control over the causes of the offence, as is clear from the evidence adduced in the Local Court set out above in [12]-[18] the Appellant took substantial steps to minimise the risk of spray drift of chemicals in the operations on his property. His efforts identified in [12], [15] included ensuring adequate training for employees, preparation for spraying by considering the nature and concentration of chemicals to be used, use of buffer areas and assessment of weather conditions including using the Beaufort scale. The Beaufort scale was an accepted means, included in material published by the EPA referred to in [17], of determining wind speed at the time of the offence. That the Appellant has since installed a wind monitor in one part of his property does not override the need for him and his employees to assess the wind conditions in the part of the property to be sprayed. He was well aware of the need to do so and did so on the day of the offence.
4. The EPA submitted correctly that the Appellant had complete control over the decision to spray in adverse weather conditions. While I accept that precautions were taken on the day and the decision to spray was made by his employee Mr Battistuzzi, an experienced operator, the Appellant had complete control over whether and in what conditions his employees would operate spray rigs.
5. The Appellant runs a commercial macadamia farm as a commercial business. In relation to compliance with codes of practice, the evidence summarised above in [19] emphasises the measures implemented by the Appellant to comply with pesticide codes of practice. As found in Moore No 1 in not upholding the due diligence defence, the Appellant did not comply with all aspects of the applicable codes of practice, in relation to notification of neighbours and spraying near a public road with a westerly wind.

Application for s 10(1)(b)/s 9 conditional release order

Appellant's submissions in support of s 10(1)(b) order

1. The Appellant submitted that the Court should consider the application of s 10(1)(b) of the CSP Act, record no conviction and discharge the Appellant under a conditional release order for a two year period under s 9 of the CSP Act.
2. As a general proposition, the fact that a conviction is recorded is a matter of special significance: R v Mauger [2012] NSWCCA 51 at [37]-[39]. However, the fact a conviction is not recorded should not "dilute or downgrade the significance of the imposition of a s 10 bond": R v Mauger at [37] (Harrison J). His Honour observed there were onerous consequences if an offender failed to comply with an order made under the previous s 10(1)(b) and it should not be assumed that because a court decided not to record a conviction that the sentence is automatically inadequate or lenient: R v Mauger at [37].
3. Section 10 provides a "useful safety valve for ensuring that justice can be served in circumstances where, despite a breach of the law, there are such extenuating circumstances, or the matter is so trivial that punishment does not seem appropriate" (NSW Judicial Commission, Sentencing Bench Book at [5-020] as at 23 February 2021). In R v Ingrassia (1997) 41 NSWLR 447 at 449, Gleeson CJ said of the statutory predecessor of s 10 of the CSP Act, former s 556A of the Crimes Act 1900 (NSW): The legal and social consequences of being convicted of an offence often extend beyond any penalty imposed by a court. As Windeyer J said in Cobiac v Liddy (1969) 119 CLR 257 at 269, "a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice".
4. Whilst it is not submitted that the Court would consider a matter of this kind, even at this low level, a trivial matter, that does not preclude the Court from making an order under s 10(1)(b).
5. In R v Mauger at [39]-[40], the Court of Criminal Appeal in considering the supply of prohibited drugs in not insignificant quantities and multiple types, applied R v Ingrassia and held that the legal and social consequences of recording a conviction far outweighed the requirements of punishment, denunciation and specific and general deterrence.
6. It has been held that the dismissal of charges against first offenders in certain circumstances is appropriate. This power reflects the willingness of Parliament and the community to provide first offenders, in certain circumstances, a second chance to maintain a reputation of good character: R v Nguyen [2002] NSWCCA 183 at [50].

Character, antecedents, age, health and mental condition

1. The Appellant is currently 75 years old and at the time of the offending was 72 years old. The Appellant is married and has adult children. He is a person of exemplary character, demonstrated by the character references summarised above in [20]-[23]. The Appellant: 1. is well regarded in the local community of the Northern Rivers; 2. following this offence, demonstrating immediate insight, he installed a wind monitor on his property and notifies his neighbours before spraying; 3. has ceased using diazinon; 4. uses organic pesticide control methods; and 5. volunteers on community projects.
2. At the time of offending, the Appellant held the following voluntary positions: 1. President RSL NSW, Ballina sub-Branch; 2. Deputy Chairman Ballina RSL; 3. Trustee RSL NSW Ballina sub-Branch; and 4. Past Director and Membership Secretary Ballina Seagulls Rugby League Club.

Lack of criminal history

1. The Appellant has no criminal history. The Appellant's record would afford him leniency in the circumstances notwithstanding the nature of the offence per Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 (Ryan) at [23]-[25] where the High Court considered a two-stage process in determining an appellant's otherwise good character and whether it entitled him to significant leniency. The High Court held that firstly, it was necessary to determine whether the appellant was of otherwise good character and then, secondly, to determine the weight to be given to that factor in mitigation. The Court would find that the Appellant was a person of otherwise good character and in accordance with Ryan at [25] the Court is bound to take that into account. In formulating the weight to be given to the factor in mitigation, it is submitted that the Court would consider the Appellant's prior good character as a matter in mitigation.
2. There is every likelihood that the Appellant will never appear before a court again for any kind of criminal offending, and as such, at the age of 75 years, should get the benefit of his prior good character.

EPA submissions opposing s 10(1)(b) order

1. The nub of the Appellant's submission is that he should receive a bond without conviction in light of: (a) this being his first offence; (b) the fact that it appears to have been an isolated episode in the conduct of an otherwise responsible farming operation; (c) the remedial steps taken by him after the offence; and (d) his otherwise strong subjective case. Each of those matters tends in favour of the recording of a conviction and the imposition of a fine, as do the following further matters.
2. First, the protection of and minimisation of risk to human health are key objects in s 3 of the Pesticides Act. An offence against s 10 of the Pesticides Act undermines these objects. This Court has noted that the handling and application of pesticides must be undertaken with great care as there is considerable potential for harm: Environment Protection Authority v Sanders & Associates Pty Limited [2003] NSWLEC 186 (EPA v Sanders) at [32]. Further, the expectations for safety in the use of pesticides are high and proper precautions must be taken to ensure injury is not caused by the use of them: Environment Protection Authority v Leafair Pty Ltd [2007] NSWLEC 228 (EPA v Leafair) at [52].
3. Second, the fact that the offence is one of strict liability, and that it carries a significant maximum penalty, are indications of a public expression by Parliament of the seriousness of the offence and the gravity of the offence as perceived by the community: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359; Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698.
4. Third, general deterrence is an important, probably pre-dominant, feature of the sentencing exercise in respect of offences such as this. General deterrence would not sufficiently be given effect to in the absence of the imposition of some monetary penalty: see, for example, Environment Protection Authority v Rohan John Williams [2006] NSWLEC 722 (EPA v Williams) at [43].
5. Fourth, the penalty for which the Appellant contends would be a significant departure from the range of tariffs imposed by this Court in broadly comparable cases: EPA v Sanders (penalty of $3,000 for an offence against s 10(1)(b) of the Pesticides Act); EPA v Williams (penalty of $7,000 for an offence against s 10(1)(a) of the Pesticides Act); EPA v Leafair (penalty of $1,000 for an offence against s 10(1)(a) of the Pesticides Act).
6. The Appellant's subjective case, although strong, does not take him outside the ordinary run of cases. Accordingly, the sentencing appeal should be dismissed.

Consideration of sentence - s 10(1)(b) CSP Act

1. The Appellant seeks an order under s 10(1)(b) of the CSP Act. The factors to be considered in making such an order are identified in s 10(3). These are the person's character, antecedents, age, health and mental condition, the trivial nature of the offence, extenuating circumstances in which an offence was committed, and any other matter that the court thinks it is proper to consider. The four factors in s 10(3) must be considered but it is not necessary for the sentencing judge to be satisfied of all of these before a court exercises its discretion to make an order: R v Paris [2001] NSWCCA 83 at [42] (Simpson J, Wood CJ at CL and Ipp AJA agreeing) cited in Moseley v Queanbeyan-Palerang Regional Council (No 2) [2017] NSWLEC 52 at [53].
2. The Appellant's personal antecedents including his age of 75 years and absence of criminal history until this offence, and his good character, are identified above in [56]-[59].
3. The offence is not trivial. I have identified above in [45] the objective seriousness of the offence at the mid-range of the lower level of objective seriousness.
4. As to whether there are extenuating circumstances, the Appellant was unsuccessful in the Local Court and on appeal against conviction in establishing a defence of due diligence, as outlined in Moore No 1 at [217]-[223]. In this sentencing appeal his counsel emphasised evidence in the Local Court identifying the efforts made under the instruction of the Appellant to calibrate equipment before its use in spraying, extensive training and supervision of staff. The Appellant and his staff are accredited in relation to chemical application. The extent of planning of the spraying process on 18 August 2017 included checks of the weather forecast, actual conditions and on-farm conditions, well before any tanks were prepared or spraying commenced. This evidence relied on in the Local Court is summarised above in [12]-[19]. Awareness of buffer zones was also considered on 18 August 2017. The Appellant's evidence in the Local Court was that only specific areas of the property conducive to conditions were sprayed on 18 August 2017, not the entirety of the property, see above in [19(4)]. None of this evidence suggests there were extenuating circumstances giving rise to the offence.
5. Considering the comparative cases referred to by the EPA, in EPA v Sanders the defendant corporation pleaded guilty to an offence under s 10(1)(b) of the Pesticides Act for using a pesticide that caused damage to various trees on another person's property. The defendant had not set the spray boom at the recommended height which was found to have contributed to the spray drift. The offence was not trivial since it involved a pesticide which had potential for considerable environmental harm. It was a strict liability offence and the Court held that precautions must be taken so as to ensure that pesticides are used in a manner that will not damage or be likely to damage property of other persons: at [32]. After applying a reduction of 35% for an early guilty plea, a previously unblemished record and outstanding community service, the defendant was convicted, fined $3,000 and ordered to pay the EPA's costs of $23,000.
6. In EPA v Williams the individual defendant Mr Williams pleaded guilty to an offence under s 10(1)(a) of the Pesticides Act for spraying a pesticide from an aircraft, injuring a person travelling in a car on a nearby public road. Leakage of liquid pesticide had been a recurring problem for the aircraft Mr Williams was flying. Mr Williams could have prevented injury by refusing to fly the aircraft and undertaking aerial spraying of liquid pesticide until the leakage problem had been fixed. Mr Williams had no prior convictions and was of good character. A 30% discount on penalty was applied for Mr Williams' late plea of guilty, evidence of contrition and remorse and assistance to authorities in the prosecution of his employer Leafair Pty Ltd. Mr Williams was convicted, fined $7,000 and ordered to pay the EPA's professional costs in the sum of $5,000.
7. In EPA v Leafair the employer of Mr Williams (sentenced in EPA v Williams) pleaded guilty to an offence under s 10(1)(a) of the Pesticides Act. The Court found that on the facts the offence likely arose as a consequence of pilot error not as a result of leakage from the aircraft. The injury was temporary and practical measures to prevent the injury were limited. The offence was foreseeable as a direct consequence of aerial spraying in the vicinity of a public road. The defendant was remorseful, suffered embarrassment as a consequence of the offence and provided assistance to authorities. The defendant was convicted, ordered to pay the EPA's costs in the sum of $13,500 and fined a nominal sum of $1,000 as a general deterrent to remind operators of aircraft in particular that the expectations in terms of safety are high: at [52].
8. The Appellant is a commercial macadamia farmer. The necessity of managing pesticide application correctly in that context must be emphasised in criminal proceedings and the defence of due diligence was not established by him.
9. Balancing all the factors in s 10(3) of the CSP Act, I do not consider that it is appropriate to make a conditional release order under s 9 as provided for by s 10(1)(b).

Costs of conviction appeal and sentencing appeal

1. No variation of the $2,000 fine imposed in the Local Court was sought by the Appellant. No variation of the fine imposed is otherwise warranted in light of the objective and subjective matters of the offence summarised above.
2. Under s 49(4) of the Appeal Act the Court has discretion subject to s 70 to make such order as to the costs to be paid by either party as it thinks just.
3. The EPA should have its reasonable costs of the conviction and sentencing appeals paid by the Appellant.

Orders

1. The Court orders: 1. The sentencing appeal of proceedings 18/267754 in the Local Court is dismissed pursuant to s 39(2)(c) of the Crimes (Appeal and Review) Act 2001 (NSW). 2. The Appellant must pay the Respondent's costs of the conviction appeal Moore v Environment Protection Authority [2021] NSWLEC 87 as agreed or assessed. 3. The Appellant must pay the Respondent's costs of the sentencing appeal of proceedings 18/267754 in the Local Court as agreed or assessed.

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. Decision last updated: 13 December 2021