Land and Environment Court of New South Wales CITATION : Environment Protection Authority v Cupitt [2004] NSWLEC 362 PROSECUTOR Environment Protection Authority PARTIES : DEFENDANT Warren Charles Cupitt FILE NUMBER(S) : 50113 of 2003 CORAM: Talbot J KEY ISSUES: Prosecution :- plea of guilty - offence proved - good behaviour bond Criminal Procedure Act 1986 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 10, s 10(3)(b) Pesticides Act 1999 s 13, s 109, s 109(1)(a) CASES CITED: DATES OF HEARING: 17/05/2004 EX TEMPORE 05/17/2004 JUDGMENT DATE : PROSECUTOR Mr P T Barley (Solicitor) SOLICITORS Department of Environment and Conservation LEGAL REPRESENTATIVES: DEFENDANT Mr I J Hemmings (Barrister) SOLICITORS Hunt & Hunt JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 50113 of 2003 Talbot J 17 May 2004 Environment Protection Authority Prosecutor v Warren Charles Cupitt Defendant Judgment Introduction 1 HIS HONOUR: The defendant, Warren Charles Cupitt, appears to answer the charge that in September 2002 he committed an offence against s 13 of the Pesticides Act 1999 ("the Pesticides Act"), by using an unregistered pesticide without being authorised to do so by a permit. Section 13 contemplates that a person must not use an unregistered pesticide unless the person is authorised to do so by a permit. 2 Mr Cupitt entered a plea of guilty to the charge at an early stage, and has at all times co-operated with the investigating officers representing the prosecutor. He was first spoken to in December 2002 and subsequently co-operated during the inspections of his property in the company of Environment Protection Authority ("EPA") officers. 3 Mr Cupitt admitted that he had applied a herbicide to some camphor laurel trees on his property around September 2002. He initially informed the investigating officers on the telephone that he had sprayed the camphor laurel trees with Tordon and Access, which are registered pesticides. 4 Subsequently, at the time the investigating officers inspected the property in his company and during a record of interview, he identified a drum containing the material he had used. Samples taken from the drum and from the leaf samples taken, particularly on an adjoining property comprising a macadamia nut orchard, contained 2,4,5-T, which is an unregistered pesticide. 5 Mr Cupitt has explained that he had obtained the drum containing 2,4,5-T from his godfather, and his understanding was that it was a suitable poison to be used for camphor laurel trees. The tin did contain an exterior marking with the words Tordon, but Mr Cupitt really had no understanding of exactly what the contents of the drum were. 6 He had other chemicals on hand that were registered and could have been used on the camphor laurel stumps. He had previously used the registered chemicals to eradicate camphor laurel trees on his property. He readily admits that the mistake he made was not to question the information given to him by his godfather in whom he had a great deal of trust and respected his judgment. He recognises now that he should have thought carefully about the type of chemical that could have been in the so-called Tordon container. 7 There is no suggestion by either the prosecutor, or indeed the evidence, that Mr Cupitt acted in a way other than that which could be described as foolish, ill advised, and although described by him as a mistake, it occurred as a consequence of his own neglect. The Court accepts that his actions were not wanton or deliberate in the sense of knowingly committing a breach of the Pesticides Act. 8 There has been considerable debate throughout the hearing regarding the extent to which the Court should consider the matters in s 109 of the Pesticides Act and in particular the matter designated for consideration pursuant to s 109(1)(a). Section 109 of the Pesticides Act is in most respects in familiar terms as other legislation concerning offences against the environment. In particular, s 109(1)(a) requires the Court to take into consideration the extent of the injury, damage, or harm caused or likely to be caused by the commission of the offence. 9 The Court has heard evidence from two experts, Dr Hyne on behalf of the prosecutor, and Mr Wilkie on behalf of the defendant. Dr Hyne is employed by the Department of Environment and Conservation as a member of staff of the EPA as a Principal Research Ecotoxicologist. In the course of his consideration he took account of evidentiary material collected by the EPA, and then referred to literature in order to apply his scientific knowledge and expertise for the purpose of ascertaining the extent of harm caused by the commission of the offence. 10 Dr Hyne concluded that symptoms observed on the macadamia trees on the adjoining properties showed that there had been an impact on those trees. In summary, he said the concentrations of 2,4,5-T on the leaves collected from the macadamia trees were consistent with the allegations that the macadamia trees were exposed to the herbicide used by the defendant to treat camphor laurel trees on Mr Cupitt's property. 11 On the other hand, Mr Wilkie gave evidence for the defendant. Mr Wilkie is an Agricultural Consultant specialising in macadamia tree plantations, and has extensive experience in the far north coast where, I understand, the defendant's property is situated. 12 Mr Wilkie formed the view that the evidence of stress that was evident on the macadamia trees was as a consequence of moisture deprivation, firstly caused by the extensive drought that was common to the area throughout the relevant period, exacerbated by the demands placed on the moisture content of the soil from a eucalypt windbreak adjacent to the trees. He says that the additional moisture stress imposed at the ends of the rows of macadamia trees adjacent to where the camphor laurel trees had been treated was imposed by the continued stress all through the dry period caused from the demands of the eucalypt windbreak. 13 As a consequence of that conflict of opinion, the Court is not able to find that there was actual harm to the macadamia trees. Nevertheless, the use of the unregistered pesticide in a location in relevant proximity to crops of any sort, in this case macadamia trees, had the propensity to cause harm beyond the actual application to the camphor laurel trees. That in itself is evidenced by the effect on the camphor laurel trees, they are unquestionably dead, so that it is appropriate for the Court to accept that the concentration of the herbicide used on the camphor laurel trees was lethal. 14 There is no evidence that Mr Cupitt was irresponsible in the way that he applied the herbicide. There is no evidence that he carried out the application in windy conditions. I find that it is reasonable to accept, as indeed Mr Wilkie does, that the 2,4,5-T detected on the leaves of the macadamia trees must have come from Mr Cupitt's application of the chemical on his property. 15 It is most likely that the infestation occurred as the result of the volatilisation from the treated surfaces by the hot and dry low humidity conditions that were experienced at the time. It is a matter of dispute whether the level of concentration of 2,4,5-T found in the macadamia leaf by laboratory testing was such to cause the harm that is alleged. Indeed Mr Wilkie goes so far as to opine that the level of 2,4,5-T could in some circumstances prove to be a benefit, and that indeed 2,4,5-T is used to improve the fruiting capacity of some vegetables and fruits. It is for that reason that I am not able to find either beyond reasonable doubt, or even on the balance of probabilities, that there was harm to the macadamia trees. However, I am not so satisfied in relation to whether or not there could be likelihood of harm to the trees if the concentrations applied to the camphor laurels had been transmitted through the air in sufficient concentration to the macadamia trees. 16 Insofar as the other considerations to be taken into account pursuant to s 109, it is self evident that there were practical measures that Mr Cupitt could have taken to prevent, control, abate, or mitigate any such injury, damage, or harm associated with his decision to use the herbicide in the first place without proper investigation and identification. Although there was no actual damage caused, it was reasonable for him to perceive that an improper use could cause damage or harm to other vegetation. 17 Mr Cupitt applied the herbicide himself and, accordingly, was fully in control of the situation that led to the offence. 18 I accept that Mr Cupitt made a mistake in that he relied unwisely on the fact that his godfather could be trusted not to make any material available to him that was not appropriate to use. 19 Mr Barley, who appears on behalf of the EPA, reminds the Court that the objects of the Pesticides Act are set out in s 3. One of those objectives is to minimise risks to human health, environment, property and trade, and to promote the protection of human health, the environment, property and trade, in relation to the use of pesticides. He further submits that it would be to send a wrong message if a defendant who uses an unregistered pesticide does not suffer a conviction and penalty. 20 On the other hand, Mr Hemmings, who appears on behalf of the defendant, urges the Court to apply the provisions of s 10 of the Crime (Sentencing Procedure) Act 1999 ("the Crimes (Sentencing Procedure) Act"), which allows the Court to dismiss the charge where the Court is satisfied that it is inexpedient to inflict any punishment other than nominal punishment on the person, or that it is expedient to release the person on a good behaviour bond. 21 The matters to be taken into account are to a large extent not disputed in this case. Firstly, Mr Cupitt's character and antecedents are not challenged, and indeed are supported by a number of written testimonials, which are not in sworn form, but nevertheless were admitted without objection. It is clear that he is a person of good standing and record in the community, particularly in relation to farm management. 22 Mr Barley does not suggest that the offence is one that would attract a penalty in the high range, indeed, he most properly concedes that it would be in the low range of penalties, but nevertheless he does not concede, as I understand it, that in the context of s 10(3)(b) of the Crimes (Sentencing Procedure) Act, the nature of the offence is trivial. 23 As I understand Mr Hemmings' submission regarding s 10, the extenuating circumstances in which the offence was committed are matters which flow from the original mistake to use the material on a misplaced trust. 24 The Court has a responsibility to take into account two elements of deterrence. One of these elements is the personal deterrent that should apply to the particular defendant. In that respect, Mr Cupitt assures the Court that there is no prospect that an incident of this nature will happen again. He has given evidence, which I referred to earlier, that he did not purposefully, maliciously, or deceitfully, set out to contravene the law. He expresses deep regret at his actions, and apologises for any inconvenience caused to the Court, the EPA, and to his neighbour. The element of personal deterrence is limited. The penalty against this defendant, in my view, would be minimal. That leaves the second element of whether, in the circumstances of an environmental offence where there is strict liability, this defendant should be given the benefit of an exemption from any penalty. 25 In the circumstances, Mr Cupitt was in control of the situation. His mistake was a fundamental one, and he was aware that he was required only to use registered chemicals. In my view, it is important to tell the world, that is the community at large, that the use of unregistered chemicals is not, particularly in 2004, a matter that is to be tolerated in any respect. 26 There is an option under s 10 to discharge Mr Cupitt on condition that he enters into a good behaviour bond. That possibility was not canvassed in address, but it is a condition of dismissing him under s 10 that I would be prepared to consider in the special circumstances of this case. That means, Mr Cupitt, that without proceeding to conviction I would find you guilty of the offence, I would make an order directing that the relevant charge be dismissed, but I would do that only on the condition that you enter into a good behaviour bond for a term of one year. 27 I am satisfied that taken overall the offence is at the very lowest end of the scale and that there is no element of dishonesty in the actions that you took. 28 I am also conscious of the fact that you are likely to have incurred a commitment to pay a significant sum as legal costs incurred by the prosecutor, which in themselves would significantly exceed the amount of any penalty that I would be minded to impose if I did not apply s 10 of the Crimes (Sentencing Procedure) Act. Having regard to that, it is not unreasonable to treat the offence as not essentially trivial, but nevertheless minor. 29 The formal orders of the Court are as follows:- (1) I find the offence proved. Mr Cupitt is guilty of the offence as charged. (2) Without proceeding to conviction, I direct that the charge be dismissed on condition, Mr Cupitt, that you enter into a good behaviour bond for a term of one year. You are required to enter into that good behaviour bond before leaving the precincts of the Court this afternoon. Your failure to do so, of course, will render you liable to appear for the purpose of sentencing. (3) I order that the defendant pay the costs of the prosecutor in such sum as may be agreed, or assessed, pursuant to the Crimes Procedure Act 1986. (4) The exhibits may be returned. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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