Plath v Knox

Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357; Bentley v BGP Properties (2006) 145 LGERA 234; Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; EPA v Barnes [2006] NSWCCA 246; CASES CITED: Environment Protection Authority v Rohan John Williams [2006] NSWLEC 722; Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683; R v Thomson; R v Houlton (2000) 49 NSWLR 383; R v Sharma (2002) 54 NSWLR 300; Veen v R (No 1) (1979) 143 CLR 458; Veen v The Queen (No 2) (1987-1988) 164 CLR 465

PROSECUTOR R Fox (solicitor) SOLICITOR Environmental Protection Authority LEGAL REPRESENTATIVES:

DEFENDANT M Gray-Spencer (solicitor) SOLICITOR Riley Gray-Spencer Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 Her Honour: The Defendant is charged that on or about 20 November 2005 at or near the Goulburn River National Park (the GRNP) south of Mudgee in the state of New South Wales he committed an offence against s 156A(1) of the National Parks and Wildlife Act 1974 (the NPW Act) in that he damaged vegetation on or in land reserved under that Act. The offence is a strict liability offence. The Defendant has pleaded guilty and consequently the essential elements of the offence have been admitted. The Defendant was charged with this offence and another offence in matter no 07/50002. The Prosecutor has advised that matter no 07/50002 is to be discontinued at the conclusion of this matter. 2 The particulars are set out in the Summons as follows: Particulars (a) Land reserved under the National Parks and Wildlife Act 1974: The portion of the Goulburn River National Park that adjoins the paddock known as the "Lease" paddock of the property known as "Murrumbo", 9206 Bylong Valley Way, Rylstone.

(b) Vegetation: (i) eucalypt trees; and/or (ii) saplings; and/or (iii) shrubs; and/or (iv) grassed; and/or (v) forbs; and/or (vi) other vegetation. (c) Nature of the damage to the vegetation: Dieback and/or death of the vegetation (d) Manner of damaging vegetation The Defendant discharged a pesticide from an aircraft over: (i) the paddock known as the "Lease" paddock of the property known as "Murrumbo", 9206 Bylong Valley Way, Rylstone. (ii) the portion of the Goulburn River National Park that adjoins that paddock causing it to descend onto the vegetation resulting in the damage particularised in (c) above. Statement of Agreed Facts 3 A Statement of Agreed Facts was tendered setting out the following. (i) The Defendant is sole director of Mirania Holdings Pty Ltd trading as Mudgee Aviation Service, which among other things conducts aerial agricultural spraying operations using a helicopter. (ii) The Defendant holds a Pilot (Pesticide Rating) Licence under the Pesticides Act 1999 (the Pesticides Act). Mirania Holdings Pty Ltd holds an Aircraft (Pesticide Applicator) Licence under the Pesticides Act. (iii) On or about 18 or 19 November 2005 the Defendant was contacted by the owner of "Murrumbo" near Bylong (the property). The property is bordered by the GRNP along its northern and western boundary and by the Wollemi National Park along its southern and eastern boundary. The property is used for cattle grazing. (iv) The owner of the property engaged the Defendant's company to conduct aerial spraying of an outbreak of the weed St Johns Wort on the property. (v) A short time later the Defendant attended the property for the purpose of an inspection. The Defendant and the owner of the property flew over the property in the Defendant's helicopter to inspect the area to be sprayed. The owner of the property instructed the Defendant to spray the registered pesticide Grazon DS Herbicide (Grazon) on the "Lease" paddock. (vi) Grazon is a registered pesticide under the Pesticides Act. The chemicals present in the pesticide Grazon DS Herbicide are highly toxic to broad leafed plants such as eucalypts. The remainder of the property was then to be sprayed with a mixture of the pesticides "Roundup" and "Brush-off". (vii) The owner of the property indicated to the Defendant the boundary between the Lease paddock and the adjoining GRNP. The boundary between the Lease paddock and the GRNP was marked by a fence line and a change in the density of the vegetation. (viii) The Defendant arrived at the property in the helicopter on 19 November 2005 to conduct an inspection and to start carrying out spraying operations. The Defendant declined to start spraying on that day due to the wind blowing in the wrong direction (towards the GRNP). The Defendant returned the next day when conditions were more suitable with the wind blowing gently from the SW - NW. The Defendant released smoke prior to commencing his spraying. The Defendant then commenced spraying Grazon over the Lease paddock. The Defendant flew over the GRNP to conduct turns back onto spray runs. A copy of a map showing the Defendant's flight path and the area over which the Defendant applied the pesticide was attached to the Statement of Agreed Facts. The Defendant applied the pesticide at some points within 150m of the boundary with the GRNP without first obtaining written consent of the Director-General of the National Parks and Wildlife Service (NPWS), contrary to Order AIR-1, in force under the Pesticides Act. (A copy of Order AIR-1 is annexure A to this judgment). (ix) On or around that time the owner of the property instructed an employee to spray Grazon by hand, with a powered spray pump, the St Johns Wort in areas close to buildings, power lines, creeks and where there was heavy tree cover. (x) Soon after the aerial spraying of Grazon was completed the owner of the property observed that that about 99 per cent of trees, understorey and vegetation on the Lease paddock were wilting. Several weeks after the date of the offence the owner of the property noticed that trees in the GRNP were wilting and appeared to have the same look as the wilted trees in the Lease paddock. (xi) The owner of the property did not proceed with further planned applications of Grazon. Subsequent spraying of the property was conducted using a mixture of the pesticides "Roundup" and "Brush-off".

Damage to vegetation (xii) The Defendant's application of the pesticide to the property caused damage to vegetation in an area of the GRNP approximately 3.7ha in size. The survey plots the perimeter of the affected area based on the GPS information recorded by National Parks and Wildlife Officer David Crust. That area also included a disused quarry approximately 0.9ha in size. (xiii) Photographs of part of the area of the GRNP and the property affected by aerial spray, taken from ground level were also attached to the Statement of Agreed Facts. These show brown, wilting and dead vegetation. (xii) The area of the GRNP affected is known to support flora and fauna that has a high level of conservation significance, including: (a) the vulnerable plant species Ozothamnus tesselatus listed under Sch 1 of the Threatened Species Conservation Act 1995 (the TSC Act) and the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act); (b) the endangered population of the tiger orchid Cymbidium canaliculatum in the Hunter Catchment which is listed under Sch 1 of the TSC Act; (c) habitat of the grey-crowned babbler and other threatened fauna species. (xiii) While these species of flora and fauna have been affected, there is no evidence that these species were significantly affected. The grey-crowned babbler population and two other threatened fauna species (the speckled warbler and the diamond firetail) were present in the affected area when inspected on 12 and 13 July 2007 despite the impact from the spray drift. The tiger orchid Cymbidium canaliculatum did not appear to be affected, although its habitat was affected. (xiv) The application of the pesticide caused dieback and death of vegetation within the affected area of the GRNP. However part of the affected area of the GRNP is an old gravel pit. The offence had a detrimental impact on White Box trees and other plant species in the affected area of the GRNP. In particular, the pesticide has caused a decline in canopy cover and loss of individual White Box trees. The indirect impacts of the offence include: (a) loss of foliage cover leading to increased susceptibility to "edge effects"; (b) loss of foliage cover, leading to increased light levels in the community which will change the character of habitat available and may lead to an increased susceptibility to the establishment of environmental weeds; (xv) The likely indirect impacts of the offence include: (a) increased water loss from soil and vegetation due to less shelter from sun and wind caused by the lowered density of foliage; (b) changes in soil chemistry by movement of herbicide into soil from direct spray and from the breakdown of poisoned foliage; and (c) changes in the water quality of groundwater and ephemeral creeks in and adjacent to the affected area due to the pesticide entering the waterways.

(xvi) The negative impact of the pesticide may continue for up to three years. It is expected that the flora and fauna of the affected area will recover over time if left undisturbed. (xvii) The Defendant has no prior convictions for environmental offences. (xviii) The Defendant participated in a recorded interview with investigators for the Prosecutor on 14 November 2006.

Sentencing of the Defendant Objective factors 4 A basic sentencing principle is that the sentence must reflect the objective circumstance of the offence and the personal circumstances of the defendant, Veen v R (No 1) (1979) 143 CLR 458. Section 3A of the Crimes (Sentencing Procedure) Act 1999 states the purpose for which the Court may impose a sentence on the Defendant:

(a) to ensure that the offender has been 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; and (g) to recognise the harm done to the victim of crime and the community. (i) maximum penalty for the offence 5 The maximum penalty available for an offence reflects the public expression by Parliament of the seriousness of the offence: Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 698 (per Kirby P, Campbell and James JJ agreeing). 6 As submitted by the Prosecutor, Parliament has indicated that an offence under s 156A(1) of the NPW Act is an objectively serious offence by providing a maximum fine for an individual of $110,000 (1000 penalty units) or imprisonment for 6 months or both.

(ii) statutory framework for the offence under s156A(1) 7 The statutory framework of the NPW Act is relevant when assessing the seriousness of the offence under s 156A(1). The objects of the NPW Act in s 2A are: (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, … 8 The Act provides for the creation of a reserve system which includes national parks and historic sites, state conservation areas, regional parks, nature reserves and karst conservation reserves. The purpose of reserving land as a national park under the NPW Act is set out in section 30E(1) as follows: The purpose of reserving land as a national park is to identify, protect and conserve areas containing outstanding or representative ecosystems, natural or cultural features or landscapes or phenomena that provide opportunities for public appreciation and inspiration and sustainable visitor use and enjoyment so as to enable those areas to be managed in accordance with subsection (2).

9 As submitted by the Prosecutor, the harming of vegetation within the GRNP, without first obtaining a specified licence, consent, approval or other authorisation, is directly incompatible with this purpose.

10 The Prosecutor submitted that it is appropriate for the Court to denounce the conduct of the Defendant in this case, and seek retribution for the harm to the environment, in accordance with s 3A(f) and (g) of the Crimes (Sentencing Procedure) Act 1999 for a crime against a significant component of the environment: ecosystems within land reserved for conservation purposes.

(iii) extent of environmental harm 11 A relevant consideration in sentencing for environmental offences is the extent of environmental harm caused. The damage to vegetation and its effects are set out in the Statement of Agreed Facts at par 4(xii) - (xvi). The Prosecutor submitted that the environmental harm must be viewed as comparatively serious and not minor. The harm caused by the offence is an aggravating factor of the offence the Court is entitled to take into account (s 21A(2)(g) of the Crimes (Sentencing Procedure) Act). The Prosecutor also relied on Bentley v BGP Properties (2006) 145 LGERA 234 at [175] - [177]. 12 The extent to which 0.9ha of the affected area was a disused quarry and may have been degraded is not a mitigating factor (Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299 at [149]). The Defendant accepted this. 13 The Defendant submitted the harm was not serious in the short or long term. There is no suggestion that any species was threatened due to the spraying in the national park. The area affected is small given that the GRNP is some 70,000ha in total. The area is regrowing as shown in photographs attached to the Defendant's affidavit of 1 August 2007 and will substantially regenerate by November 2008, three years after the offence. There is no lasting harm to the environment.

(iv) practical measures that could have been taken to prevent, control or mitigate the harm

14 The circumstances of the offence are identified in the Statement of Agreed Facts at par 4(v)-(viii). In the Defendant's affidavit sworn 1 August 2007 he also sets out the circumstances of the incident at [14] - [17]. 15 According to the Prosecutor, notwithstanding the Defendant cannot explain how the incident occurred, the following simple measures could have been taken to prevent, control or mitigate the potential for harm to occur as a result of his actions: (i) choosing a flight path that did not require him to conduct turns on spray runs over the GRNP; and (ii) declining to conduct aerial spraying in areas adjoining the boundary in favour of hand-spraying (which was conducted at other sensitive areas on the property). 16 The Prosecutor submitted that the Defendant cannot be regarded as having taken all reasonable steps to prevent the incident occurring, having failed to first obtain the written consent of the Director-General of NPWS or her delegate to the aerial spraying within 150m of the boundary with the GRNP as required by Order AIR-1. 17 The Defendant submitted that he did take substantial precautions which included an aerial inspection before spraying, not spraying on the first day he attended the property because of adverse wind conditions and the close proximity of the national park, despite the urgency of the need to poison the weed St Johns wort which was poisoning stock. He commenced spraying when the wind was blowing in an appropriate direction. He let off smoke before the first run near the national park to determine wind direction and another run of smoke along the Bylong Valley Way. The smoke blew away from the national park and he decided to do this area first to minimise the risk of the wind changing direction later on. At par 17 he states: To this day I still cannot understand how the damage occurred except to say that there must have been a slight change wind direction of which I was unaware although the smoke emissions which I made, being at least 5, at the end of each pass did not indicate any change of wind direction. I certainly did not intentionally spray the GRNP. (v) Defendant's state of mind at the time of the offence 18 The Defendant has a Commercial Helicopter Pilots Licence and a Grade 2 Helicopter Agricultural Pilots Rating and a Certificate of Approval for Operation Spraysafe issued by the Aerial Agricultural Association of Australia in August 2001. He was issued with a Pilot (Pesticide Rating) Licence in August 2001 under the Pesticides Act. He has undertaken 1550 hours of flight including 850 hours of agricultural flight time. When the job was completed the Defendant considered that it had been done satisfactorily. There is no suggestion that he released spray over the national park. His actions were not intentional, at worst the offence was a result of negligence or inadvertence. His counsel submitted that his culpability is low. 19 In relation to Order AIR-1, in his affidavit the Defendant stated that he did not understand that this order applied to national parks as he did not understand these to be public places as described in the order. The Defendant accepts that "public place" includes national parks, to which Order AIR-1 applies, but only became aware that this was the case in his interview with an officer of the Prosecutor after the offence had occurred. He identifies that the Civil Aviation Order s 20.21 par 3.2 which applies to him as holder of a Helicopter Agricultural Pilots rating does not refer to operations near national parks. It refers only to low flying needing permission in relation to occupied buildings. The Agricultural Pilot's Manual also has no requirements in relation to any national parks (or any parks). It states that: In NSW there is an additional requirement regulated by the State Government for spraying not to be conducted within 150 metres of a dwelling without permission. 20 The Defendant stated in his affidavit that he has spoken to other aerial agricultural operators who are also unaware that the order applies and consider that national parks are not a public place. If he had known that the order did apply he would have notified the local national parks office in Mudgee. He considers he is a careful operator and regrets the commission of the offence which was not caused by a failure to take precautions before spraying. (vi) Defendant's means to pay: Fines Act s 6 21 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, in the opinion of the Court, are relevant to the fixing of that amount. 22 The Defendant set out in his affidavit his financial circumstances. He wishes to rely on s 6 of the Fines Act. The affidavit attests that the Defendant has owned a cattle/sheep farm since 1999 which has been in a drought since 2002. Since 2003 he has been developing the equipment to establish a business for the application of a particular fertiliser system which benefits the soil but the expense of developing that equipment, coupled with the expense of hand feeding and agisting stock through the drought, the reduction in stock income and aerial agricultural work have almost extinguished his equity in his property. He has received notice from the National Australia Bank, the mortgagee of the property, of its intention to enforce the security it holds. He is yet to find alternative finance. His income tax returns for 2005 and 2006 show that his income was substantially less than his large primary production losses. 23 I take into account the straitened financial circumstances of the Defendant in fixing the appropriate level of penalty. I note that the pre-sentence report prepared by the Probation and Parole Service at my request concluded that community service orders were not appropriate for this Defendant.

(vii) Deterrence 24 General deterrence is an important consideration in environmental offences, see Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357, per Badgery-Parker J at 367. 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.

25 In Environment Protection Authority v Rohan John Williams [2006] NSWLEC 722 Preston J at [43] held that: … general deterrence is required for other pilots and operators in the aerial agricultural industry to ensure they take proper precautions to ensure that injury to persons is not caused by the use of pesticides.

That case concerned a prosecution under the Pesticides Act where a person was directly affected physically by the aerial application of pesticides. 26 This is the first offence under this section of the NPW Act considered by this Court. The Prosecutor submitted that general deterrence is an important consideration given the need to deter operators in the aerial agricultural industry because of the substantial potential for pesticides to cause damage to vegetation. The need for deterrence is underscored by the role of national parks in protecting vegetation and I accept that submission.

27 The Prosecutor argued that specific deterrence was also a relevant sentencing consideration as the Defendant wishes to continue as an agricultural pilot but I do not agree. The Defendant is an experienced pilot with no prior convictions. The Defendant is now aware of his obligations under Order AIR-1 and I consider is very likely to comply with it in the future. The likelihood of a recurrence is remote. These circumstances are not those identified as requiring specific deterrence in Veen v The Queen [No. 2] (1987-1988) 164 CLR 465 at 477, that is where: the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. Conclusion on penalty 28 Parliament has imposed a large maximum penalty for this offence for an individual and up to six months imprisonment indicating the objective seriousness of this type of offence. Given the important conservation and recreation purposes of national parks as identified in the NPW Act, spraying activity which results in 3.7ha of vegetation in the national park being adversely affected is serious regardless of the size of the national park concerned. The extent of environmental harm is serious and has impacts on vegetation in the national park in the medium term of three years, after which it is considered that the area will have regenerated. The level of culpability of the Defendant is less serious than the Prosecutor submitted in that I accept that he took extensive precautions before and during spraying to try and ensure that the national park was not affected. He is an experienced operator. His actions were not intentional. 29 While the Prosecutor urged on me the approach in Bentley the objective circumstances of that case were far more serious than these before me. In Bentley the Court had to consider the deliberate destruction of many plants of a threatened species. The defendant had been aware of the threatened species being on the site and that its actions might cause damage to the plants. The impact of the defendant's actions on the sub-population and habitat were very substantial, an aggravating factor. The defendant also failed to take readily available practical measures to reduce the foreseeable risk of harm and its actions were motivated by commercial objectives. A penalty of $40,000 was applied where the maximum penalty was $55,000. 30 Taking into account all relevant factors I consider a penalty of $22,000 is warranted. But for his financial circumstances a more significant penalty would be warranted for this Defendant. 31 The Prosector has raised as part of the circumstances relevant to the offence the failure to comply with Order AIR-1. This offence does not concern a breach of an order under the Pesticides Act. I do not consider that a greater penalty is warranted because there was such a failure by the Defendant as, while he has been charged with that offence in matter no 07/50002, the Prosecutor does not intend to pursue that matter. While it does not excuse his failure to seek consent from the relevant department as required by Order AIR-1, his evidence suggests there is a problem with awareness of agricultural pilots and property owners about their legal responsibilities when spraying within 150m of a national park in NSW. The Agricultural Pilots' Manual attached to the Defendant's affidavit, which I infer is provided by the Civil Aviation Safety Authority, does not summarise all the obligations of agricultural pilots under NSW law. The Civil Aviation Orders Part 20 Section 20.21 issued by the Civil Aviation Safety Authority Australia do not deal with this issue.

Mitigating circumstances 32 Numerous mitigating matters which can be considered in reducing the penalty imposed are identified in s 21A of the Crimes (Sentencing Procedure) Act. 33 I accept that the defendant is of good character (s 21A(3)(f)), as is clear from three references tendered by the Defendant's solicitor. These were from GE Richardson OAM, who has known the defendant for 42 years; and Max Rayner and Barry Nott, for whom the Defendant has carried out aerial spraying operations respectively. These references were prepared in the knowledge that they would be used in these court proceedings. They attested to his good character, upstanding reputation in his local community and that he has undertaken difficult aerial spraying jobs with care. 34 The Defendant pleaded guilty at the earliest opportunity, s 21A and s 22. 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. 35 He has expressed contrition and remorse for his actions (s 21A(3)(i)). He has no prior convictions (s 21A(3)(e)). He is unlikely to reoffend (s 21A(3)(f)). He has cooperated with the Prosecutor (s 21A(3)(m)).

Prosecutor's costs 36 The Prosecutor's costs are agreed at $35,000. The Prosecutor has agreed that the Defendant should have twelve months to pay its costs given his financial circumstances and I consider it is appropriate to allow him that period of time to pay. As upheld in EPA v Barnes [2006] NSWCCA 246 at [88] per Kirby J (Mason P and Hoeben J concurring), it is also appropriate when sentencing to take into account the Prosecutor's costs if these are significant, as these are. 37 I consider there should be a reduction of 40 per cent in light of all the mitigating circumstances I have identified and the amount of the Prosecutor's costs. The overall penalty imposed is therefore $13,200. I note that under s 10 of the Fines Act an application for time to pay beyond the 28 day statutory period specified for the payment of a penalty can be made to the Registrar of the Court.

1. The Defendant is convicted of the offence with which he is charged.
2. The Defendant is fined the sum of $13,200 to be paid to the Registrar of the Court within 28 days of today's date.
3. The Defendant must pay the Prosecutor's costs of the proceedings against him, as agreed or assessed.
4. Liability for payment of the Prosecutor's cost is postponed for twelve months.
5. The exhibits may be returned.

ANNEXURE A PESTICIDES AND ALLIED CHEMICALS ACT 1978* Order Under Section 49A(1) Order Number AIR-1 I, HARVEY JOHN BAKER, being the Registrar of Pesticides appointed under the Pesticides and Allied Chemicals Act 1978, and in pursuance of the powers conferred on me by that Act, and with the consent of the Minister for Agriculture, do, by this my order, require that any person applying a pesticide from an aircraft shall not release, discharge or apply such pesticide within a distance of 150 metres horizontally from the boundary of any dwelling, school premises, factory premises, or any public place without the owner of the property on which the pesticide is applied or his/her nominee having obtained prior consent in writing from the occupier of the dwelling, school, factory, or public place, or person in charge, as the case may be; unless otherwise authorised in writing by the Registrar of Pesticides. FURTHER TERMS AND/OR CONDITIONS 1. In this Order:- Dwelling means any premises usually used for human habitation as a home including any yard, garden, garage or outhouse; Public place includes any park or garden, playing field, or any place to which the public have or are permitted to have access; but for the purposes of this order excludes roads, travelling stock reserves, and State Rail land. 2. This order does not constitute any recommendation by the Registrar of Pesticides, the Government, a Department of the Government, a governmental authority, an organisation, a corporation or any other person. 3. No guarantee is given and no responsibility, risk or liability is accepted, as to the effectiveness; safety including safety to the public, any individual, a governmental authority, crops or other vegetation, or the environment; or any other thing; which may, or may not, occur as a result of: 3.1 the information specified in this order; and/or 3.2 preparing any pesticide for use and/or using any pesticide. 4. A person shall not, before releasing, discharging or applying any pesticide from an aircraft, fail to read, or have read to him the information specified in this order. This order is in force from 16 February 1987 until revoked. Signed this sixth day of February, 1987. H.J.BAKER, Registrar of Pesticides.

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