Harvey v Kernick No ERD-03-426 [2004] SAERDC 9 (30 January 2004)

Last Updated: 1 February 2004

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Reasons For Penalty Delivered By Her Honour Judge Trenorden (ex tempore)

Hearing

30/01/2004.

Catchwords and Materials Considered

• ENVIRONMENT PROTECTION ACT 1993 , referred to.

Representation

Complainant: MAXWELL ROBERT HARVEY
Counsel: MS M CATTONAR - Solicitors: CROWN SOLICITOR'S OFFICE

ERD-03-426

Judgment No. [2004] SAERDC 9

30 January 2004

Settled By Her Honour Judge Trenorden On 30 January 2004

IN THE ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT

PROSECUTION

ADELAIDE

FRIDAY, 30 JANUARY 2004 AT 9.51 A.M.

BEFORE HER HONOUR JUDGE TRENORDEN

NO.426/2003

MAXWELL ROBERT HARVEY - COMPLAINANT

V

SHANNON MICHAEL KERNICK - DEFENDANT

HER HONOUR IN SENTENCING SAID:

1. I find the defendant guilty as charged.

2. On the prosecution's case, which I accept in the circumstances, the defendant operated a milking shed at Pages Flat where 300 cows were milked twice a day. The defendant had in place what was clearly an inadequate system to deal with the effluent from the milking shed.

3. The defendant had on prior occasions been advised by the officers of the Environment Protection Authority that the system needed attention; there had been previous occasions when the effluent had overflowed, that is overflowed from the temporary dam which was part of the system. There was one previous occasion in December 2002 when as a result of one of these incidents an expiation notice was issued to the defendant in the amount of $300.

4. The EPA had conversations with the defendant in June and December 2002 and in November 2001. I consider that the defendant should have been fully aware of his obligations under the Environment Protection Act 1993, which includes the Environment Protection Milking Shed Effluent Management Policy 1997, which was then in force.

5. The defendant I consider was fully aware of the possibility of the system, given its inadequacy, not dealing with the effluent and therefore effluent overflowing. In the event, the effluent in the period as alleged I find overflowed onto the roadside verge and also on at least one occasion onto a neighbouring property. This resulted in, although it has been said no serious damage to the environment, an unsightly situation on the roadside verge and perhaps on other areas.

6. Potentially there was the risk of a spread of bacteria from the effluent, and the risk of odour from the effluent. There was potentially a risk to the environment in the widest sense.

7. I have been informed that since the offences occurred in April 2003, the system for the collection and disposal of effluent from the milking shed has been upgraded. So clearly the defendant has spent presumably a considerable amount of money on that upgrading of the system which should now adequately deal with the effluent produced from the milking shed.

8. I have been informed that the defendant was cooperative with the investigators. However, the offence is a regulatory offence, it is one in which on the authorities a conviction should be recorded.

9. There has been nothing put to me as to why a conviction should not be recorded. The defendant is convicted. I come now to penalty.

10. I take into account everything that has been put to me. I take into account there was no serious damage to the environment, however, there was clearly the potential for such damage to occur.

11. I have to take into account the system for environment protection in this State, which is embodied in the Environment Protection Act. That legislation created offences in the interests of protecting the environment in this State from damage. I have to take into account, in deciding the penalty, the principle of general deterrence, which translates into the need for a person to consider the impact of their actions upon the environment and taking adequate steps to protect the environment, both in the interests of the community of South Australia and, to be frank, in their own business interests.

12. The Act strongly suggests, when all its provisions are taken as a whole, that business interests are not to be put above the interests of the community in South Australia in the protection of the environment.

13. The maximum penalty for this offence, which is a category B offence under s.34(1) of the Environment Protection Act, is $30,000. The defendant is fined the amount of $5,000. Costs?

14. MS CATTONAR: I would seek prosecution costs of $150.

HER HONOUR: An order is made that the defendant pay the prosecution costs in the amount of $150. Any others?

MS CATTONAR: There is investigation costs of $100.

HER HONOUR: The technical costs?

MS CATTONAR: Yes.

HER HONOUR: S.135?

MS CATTONAR: Yes.

20. HER HONOUR: And the amount of $100 has been incurred in the conduct of tests, examinations, or analyses in the course of the investigation.

21. Very well, I order pursuant to s.135 the defendant pay the amount of $100 for the technical costs associated with the investigation and the prosecution of the offence.

22. It follows by law that there will be also imposed on the defendant the criminal injuries compensation levy, which is the amount of $35.