Axer Pty Ltd v. Environment Protection Authority Country/Territory Australia Type of court National - higher court Date Nov 22, 1993 Source UNEP, InforMEA Court name Supreme Court of New South Wales Judge MahoneyFinlayBadgery-Parker Reference number 113 LGERA 357 Language English Subject Water, Waste & hazardous substances Keyword Offences/penalties Hazardous substances Pesticides Abstract The defendant company was charged with an offence under s 8b of the Environmental Offences and Penalties Act 1989 (NSW), for polluting a river by aerial chemical spraying. In the Land and Environment Court the company was fined $ 50,000. The substantial issue in the appeal was whether the fine was too severe. The court emphasized that in determining the fine appropriate to an offence of pollution, two things were to be borne in mind: The seriousness in which the community regarded pollution of this kind and the purposes sought to be achieved by the imposition of fines in cases such as the present one. The legislation did not seek merely to prevent deliberate or negligent pollution. It envisaged that, at least in many cases, proper precautions had to be taken to ensure that pollution did not occur. The question for the court was not whether the appellant was able to point to error on the part of the sentencing judge, but rather whether the appeal court, independently of the opinion of the sentencing judge, came to the conclusion that the penalty should be that which was imposed below, or some other penalty. The court held that where there was an issue about the facts upon which a court was to sentence in respect of any criminal or quasi-criminal offence, the sentencing judge might not act upon any aggravating factors rather than such were proved beyond reasonable doubt. It was the function of the appeal court to form its own view upon the evidence, but in doing so to have regard to the fact that the judge below had the opportunity, which the appeal court did not have, of seeing the witnesses and making assessments of credibility. The court affirmed that the offence was not deliberate, but the result of an isolated error by the pilot, who might have been distracted from his task in some way. The criminality involved was to be measured not only by the seriousness of what occurred but by reference to the reasons for its occurrence. The court decided that the company should be sentenced on the footing that it was an unprecedented error of omission on the part of the competent and experienced pilot which caused the pesticide pollution of the river. The court also emphasized that those who handle dangerous chemicals had to be regarded as under a heavy obligation to the rest of the community to do so with the utmost care. In conclusion, the court imposed a fine of $ 20,000. Full text COU-143766E.pdf References Cited by Byron Shire Council v. Michael Hume Fletcher Jurisprudence | Others | Australia | Nov 25, 2005 Keyword: Offences/penalties, Authorization/permit, Forest management/forest conservation Source: UNEP, InforMEA Bentley (Prosecutor) v. Gordon (Defendant) Jurisprudence | Others | Australia | Nov 22, 2005 Keyword: Protected plant species, Offences/penalties Source: UNEP, InforMEA