Land and Environment Court of New South Wales CITATION : Environment Protection Authority v Miller [2001] NSWLEC 205 PROSECUTOR: Environment Protection Authority PARTIES : DEFENDANT: Andrew Munro Miller FILE NUMBER(S) : 50017 of 2001 CORAM: Lloyd J KEY ISSUES: Environmental Offences :- use of an unregistered pesticide - penalty - mitigation LEGISLATION CITED: Interpretation Act 1987 s 30(1) Pesticide Act 1978 s 23, s 25,, s 31(b) CASES CITED: DATES OF HEARING: 01/08/2001 EX TEMPORE JUDGMENT DATE : 08/01/2001 PROSECUTOR: Mr M M Kelly (Solicitor) SOLICITORS: Stephen Garrett LEGAL REPRESENTATIVES: DEFENDANT: Mr M A Gray-Spencer (Solicitor) SOLICITORS: Riley Gray-Spencer Lawyers JUDGMENT: 2 IN THE LAND AND Matter No.: 50017 of 2001 ENVIRONMENT COURT Coram: Lloyd J OF NEW SOUTH WALES Decision date: 1 August 2001 Environment Protection Authority Prosecutor v Andrew Munro Miller Defendant EXTEMPORE JUDGMENT HIS HONOUR: 1. The defendant has pleaded guilty to an offence against section 31(b) of the Pesticides Act 1978. That Act has now been repealed. The repeal does not, however, affect the previous operation of the Act or anything done under the Act or any obligation or liability acquired, accrued or incurred under the Act: see s 30(1) of Interpretation Act 1987. Section 31 of the Pesticides Act provides as follows: Except to the extent that, pursuant to a permit, he is otherwise authorised by section 25, a person shall not: (a) prepare an unregistered pesticide for use; (b) use an unregistered pesticide unless it is a pesticide prepared from a registered pesticide otherwise than in contravention of section 32; or (c) dispose of a pesticide otherwise than as required or authorised by the Act. Penalty: 200 penalty units or, for an offence by a corporation, 400 penalty units. 2. At the time of the committing of the offence a penalty unit was $110, which means that the maximum penalty in this instance is $22,000. 3. The reference in s 31 to a permit and to s 25 needs explanation. Under s 23 the Registrar of Pesticides may issue a permit to do or omit to do a number of things which would, but for the issue of the permit and the operation of s 25, constitute an offence. 4. Under s 25, while a permit is in force a person is authorised, subject to compliance with the terms and conditions to which the permit is subject, to do or omit to do anything in relation to a pesticide or class of pesticides that the permit specifies may be done or omitted to be done in relation thereto. 5. At the time of the committing of the offence, 19 February 2000, the pesticide Rescue Insecticide was an unregistered pesticide and was not a pesticide prepared from a registered pesticide. 6. A permit was in force under s 23 of the Act which permitted the use of the pesticide in field trials. A condition of the permit was that users must comply with the instructions on the unapproved label of the unregistered product. That label states, inter alia: "Not to be used by ULV application." As I understand it, the letters ULV are a reference to Ultra Low Volume. The label also has an instruction: "Avoid contact with eyes and skin, do not inhale spray mist." 7. The relevant facts are agreed and may be briefly stated as follows. On 19 February 2000 the defendant, an aerial spray pilot then employed by Goddards Spraying Services Pty Limited aerially applied a mixture of three insecticides, one of which included the Rescue Insecticide, to a cotton crop at a property named "Booloola" near Mullaley owned by Mr and Mrs Owen Jones. Mr Reginald Parkes and his son Timothy were working on the same property drilling a water bore at the time and the spray drift made contact with their eyes and skin. 8. The nature of water drilling is apparently such that there is a need to complete a bore hole once drilling is commenced. Messrs Parkes commenced drilling the bore hole on Thursday 17 February 2000 and then intended to work continuously until it was completed. 9. Mr and Mrs Jones were apparently away and their son, Mr Peter Jones, informed Messrs Parkes that there would be a spray on the morning of Saturday 19 February 2000. They told him that they should be finished before daylight that morning. As it transpired Messrs ran into unforeseen difficulties and telephoned "Booloola" to warn that they were still there. There was no answer, since Mr Peter Jones lived in Gunnedah. 10. On the spraying request form from Mr Peter Jones to Goddards Spraying Services Pty Limited there appeared the words: "Timothy Parkes is drilling on the northern edge of field two." On the Friday afternoon Mr Peter Jones had rung Goddards Spraying Services Pty Limited and told the mixer, Mr Rod Campbell, that the drillers would not be there at day break. 11. Both Messrs Parkes maintain that the pilot (the defendant) flew around their drilling rig on the Saturday morning and should have seen them because of strong floodlights on the drilling equipment. They agree that daylight had broken but maintain that it was still dark enough for the lights to be clearly visible. 12. On 4 April 2000 the defendant voluntarily participated in a recorded interview. In the course of this interview the defendant admitted spraying with ULV formulation, admitted spraying the three insecticides in one application within 28-30 metres of the drilling rig and that the wind direction was such that the drift was likely to reach the drilling rig. 13. The defendant explained that he relied upon the advice that the drillers would not be there and upon his prior knowledge of the field from previous spraying and said that he commenced to spray on the northern edge of field two without doing a fly over to check if the drillers were there. 14. The defendant maintained in the record of interview that he never saw the drillers whilst spraying that section of the property, neither did he see them leaving the scene. He admitted in the record of interview that it was possible that they may have left the scene without him seeing them. He said it was already daylight and he did not see any lights on at the drilling equipment. 15. Under the ULV application the Rescue Insecticide was applied at the rate of 2 L/ha (as allowed by the label). However the label of Rescue Insecticide at the time of this offence, also required that the pesticide be mixed with water so that the total volume sprayed was a minimum of 20 L/ha. In this instance there was no water mixed and the total volume of the three pesticides applied was 3.7 L/ha. 16. At the time of the offence Mr Reginald Parkes was 65 years old and Mr Timothy Parkes was 37 years old. Both Messrs Parkes were exposed to drift from the sprayed insecticide, or a component of it, originating from the aerial application. The spray impacted on the arms and legs of Mr Reginald Parkes and on the face of Mr Timothy Parkes. Both men experienced a strong smell. Mr Timothy Parkes suffered stinging eyes whilst Mr Reginald Parkes felt a mild skin irritation. Both men subsequently developed headache and respiratory symptoms. Mr Reginald Parkes also suffered nausea and a coughing fit. All of Mr Timothy Parkes' symptoms appear to have resolved within about four days after the exposure. Mr Reginald Parkes felt that he suffered extended after-effects in that he tired more easily than previously and had a decreased capacity to work, still evident 10 months later. 17. In the opinion of Dr R S Kenyon, Senior Occupational Physician of the Workcover Authority, the symptoms reported by Mr Timothy Parkes and Mr Reginald Parkes are entirely consistent with relatively low exposure to the stated mixture of pesticides. I set out Dr Kenyon's expression of opinion on the potential health effects of exposure to these pesticides: Significant exposure to a mixture of Nudrin (methomyl), Decis (deltamethrin) and Rescue (chlorpyrifos-methyl) pesticides as a ULV application has the potential for serious health effects. In extreme cases heavy exposure could result in death. Methomyl and chlorpyrifos-methyl are both anticholinesterase compounds that disrupt function of the nervous system. This can result in specific symptoms of anticholinesterase poisoning such as muscle twitching, weakness, hypersecretion (excessive salivation, running eyes and nose etc), chest tightness and pulmonary oedema. Non-specific symptoms also occur and these include headache and nausea which are the most common early symptoms seen with anticholinesterase exposure. Eye and skin irritation are also non-specific symptoms that can occur with exposure to a very wide range of pesticides. Synthetic pyrethroids, such as deltamethrin, have been associated with cutaneous paraesthesia, sometimes described as a burning or stinging sensation of the skin. This effect usually occurs a few hours after exposure. All of the symptoms caused by mild exposure to these pesticides are generally considered to resolve completely in the vast majority of cases with long terms effects seen only in a small minority of people, usually following significant acute poisoning episodes. These persistent effects relate mainly to peripheral nerve abnormalities in people over exposed to organophosphate pesticides. 18. In Dr Kenyon's opinion, he would not expect any long term or chronic health effects to result from low exposures to the pesticide. That is to say he would not expect persistent adverse health effects to result in this case as the degree of exposure was likely to have been small. 19. The defendant gave evidence. He states that he was, at the time, the chief agricultural pilot with Goddards Spraying Services Pty Limited based in Gunnedah. That company owned only one aircraft which was sold on 27 July this year. He has received a notice of termination from his employment with that company which takes effect from today. He has not yet decided what future employment he will attempt to obtain. 20. The sale of the aircraft by Goddards Spraying Services Pty Limited means that that it will no longer be involved in the aerial agricultural industry. It is the defendant's belief that the company does not wish to be involved in the industry any further, due largely to this incident; and particularly in view of the fact that civil action is being taken against it by Messrs Parkes. 21. The defendant has a degree in Aviation Science from the University of Newcastle. Whilst studying for that degree he was awarded the Chris Smith Memorial Award for the most proficient student. This award apparently recognises both academic achievements and proficiency in practical flying training. Upon graduation the defendant declined an offer by the University to study honours, so that he could get out into the workforce. 22. The defendant was initially employed by Crop Jet Aviation Pty Limited in Wee Waa, from December 1993 to June 1996. He obtained his agricultural pilots rating during this time and progressively worked himself up to the position of Operations Manager at that company's Colly Farms Branch, near Collarenebri. 23. Towards the end of June 1996 the defendant accepted the offer of a job from Goddards Spraying Services Pty Limited in Gunnedah. Initially as a class 2 pilot, he was closely supervised by Mr Don Armstrong, the chief pilot at the time. In September 1997 he was approved by the Civil Aviation Authority as chief pilot of the organisation and obtained a class 1 agricultural pilot's licence 18 months later. He has since been granted approval by the Civil Aviation Authority to conduct both direct and indirect supervision of two junior agricultural pilots who were also employed by Goddards Spaying Services Pty Limited 24. As to the incident of with which he is charged, the defendant says that he was informed on Friday 18 February 2000 of an impending aerial spray job for the property "Booloola" near Mullaley. During a further conversation, on 18 February 2000, with Mr Rob Campbell he was told that Mr Peter Jones, at Mr Campbell's request, had been down to see the drill rig operators to obtain a contact number for them and to see whether they would be working the following morning. In this way he could contact them before spraying. 25. The defendant says that he understood that Mr Peter Jones was told by the drillers that their mobile phone was unreliable but they would finish drilling that night: they would not be present on the drill rig the following morning. The defendant says that on the Saturday morning, just after daybreak, but before the sun was over the horizon, he sprayed two irrigation blocks for the Jones's. The wind was from the south-east at four knots which was perfect for spraying. He commenced spraying towards the west. 26. When passing over the drill rig he looked at it to double check that nobody was present. He did not see any lights on the rig. He saw various pieces of machinery but no human activity. This reinforced his view that the site was vacant and throughout his spray run he saw no human activity. 27. The defendant says that, as he was told that there would be no drillers present, he subconsciously did not see them on his approach nor during the spray run. He also believes that the morning light may have affected his ability to see them. His view may also have been impeded by the machinery that was present. He did not see anybody running to an open area to warn him; and if he had seen anybody he would have stopped immediately. He has, on other occasions, stopped spraying due to the presence of vehicles or people on the ground. 28. A number of testimonials have been tendered on the defendant's behalf. These testify to the fact that the defendant has been found to be conscientious of weather conditions and people movements when spraying. He has often cancelled jobs because of spraying conditions unfavourable to neighbours or to the environment. He has a farming background and has a sound knowledge of the dangers associated with agricultural chemicals. The defendant has no previous convictions for any environmental offence. 29. In considering the question of penalty I take the testimonials into account. I take into account the fact that the defendant has no prior record. I take into account the fact that the defendant has pleaded guilty and did so at an early stage and that he cooperated fully with the prosecutor at all relevant times. 30. I also take into account the fact that the chemical in this case caused actual harm to both Mr Reginald Parkes and Mr Timothy Parkes. In the case of Mr Timothy Parkes, he developed headache and respiratory symptoms which resolved within four days but who experienced strong smell and stinging eyes at the time. In the case of Mr Reginald Parkes, he suffered similar symptoms but also nausea and coughing; and suffered coughing for several weeks after the exposure. 31. Both men, it may be said, suffered acute health effects and I refer to the potential effects described by Dr Kenyon to which I have referred. In the present case I accept Dr Kenyon's opinion that he would not expect any long term or chronic health effects in this instance. 32. I accept that the defendant perhaps should have read the permit more closely in this case. The presence of the drilling rig ought to have alerted him to the fact that drillers may be present. In his defence, I also accept the fact that he had been told by the operator that the drillers would not be present on the morning of the spray. 33. Nevertheless, it would seem that it would be prudent conduct to at least carry out a preliminary aerial survey before commencing spraying in order to ensure that no one was present. In the present case I accept that there was an element of carelessness rather than wilfulness. It must be remembered that the offence is one of strict liability which imposes an obligation on the users of pesticides not to do so in contravention of the Act 34. The result of these observations is that the penalty is obviously at the lower end of the range. In my opinion the appropriate penalty here would normally be in the vicinity of $3,000, but that penalty I reduce by 25 per cent in the light of the factors to which I have mentioned, including the plea of guilty and the defendant's co-operation with the prosecutor. This means a penalty of $2,250. The defendant must also pay the prosecutor's costs. 35. The formal orders are, therefore, as follows: 1. The defendant is convicted of the offence as charged. 2. The defendant must pay a penalty in the sum of $2,250. 3. The defendant must pay the prosecutor's costs in accordance with section 52(2) of the Land and Environment Court Act 1979. 4. Exhibits, other than exhibits A, B and 1, shall be retained. Exhibit 2 may be returned. I hereby certify that the preceding 35 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd. 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