IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC026 OF 2003S

STATE

V

KIM BENTLEY and UNITED AIRCO Ltd

24, 26 January 2005, 27 January 2005

Gates J

SENTENCE

Ms L. Chandra for the State
Mr A. Patel for both Accused

[1] 	After I had given my ruling upholding the validity of the Ozone Depleting Substances Regulations 2000, the Accuseds’ counsel asked for the Accused to be arraigned. Both pleaded guilty to the counts on the information which concerned breach.

[2] 	I therefore convict Accused 1 Kim Bentley on his own plea of guilty of handling a controlled substance, namely CFC12 gas, when he was not an authorized handler, an offence contrary to Regulations 7 and 21(e) of the Ozone Depleting Substances Regulations and section 25 of the Ozone Depleting Substances Act 1998 [count 1]. I also convict Accused 2, United Airco Ltd. on its plea of guilty as entered by its representative, its counsel Mr Patel, to unlawful storage of a controlled substance, an offence contrary to sections 16(2) and (15), and 20(3) of the Ozone Depleting Substances Act [count 2].

The facts

[3] 	Accused 2 is a small family company employing 13 people. Its Managing Director is Accused 1. The company carries on a business of repairing air conditioners and refrigeration plants as well as doing related business. On 25 May 2001 the company was awarded a tender by the Reserve Bank. This was to de-install the existing chiller systems in the air conditioning units. These units contained a chemical gas known as chlorofluorocarbon CFC12 or Freon 12.

[4] 	The Reserve Bank was making the changes to its air conditioning system in order to comply with the Ozone Depleting Substances Act 1998, which had come into effect on 1 July 1998. A system of authorization for the handling and storage of controlled substances, listed and categorized in a Schedule to the Act, was foreshadowed by the Act. That system commenced with the making of the Ozone Depleting Substances Regulations 2000 [11 June 2000], gazetted on 28 July 2000.

[5] 	During the period 13 to 27 October 2001 Accused 1 carried out the necessary works of the tender, and dismantled and decommissioned the chillers which contained the CFC12 gas. He did not possess the necessary authorization at the time to do the work. He should have had a licence to do so from the Director of Environment.

[6] 	The chillers with the gas were then transported to Accused 2’s premises at Wailada, where they were stored. At the time, the company did not have a permit to store controlled substances such as CFC12 gas.

[7] 	In his police interview Accused 1 said he had not removed the gas but only the old chillers. The gas was in a sealed container and was eventually captured by Antony Andrews of Chiller Works on the instruction of the Ministry of the Environment. Accused 1’s work was limited to disconnecting the electrical supply and the chilled water pipes. This work of course was sufficient to come within the classification of handling.

[8] 	Accused 1 said he arranged for an official of the Ministry of Environment to carry out a leak test to ensure no gas was escaping. There was no leak. The chillers were later transported to the premises of Chiller Works for the gas to be captured.

[9] 	Accused 1 said about the lack of a licence:

"We never did handle the R12 gas. I agree that I did not possess the licence at that time but we were corresponding with the Department of Environment from December 2000 advising them of our intentions and at no time did they mention us the licence requirements."

Aggravating factors

[10] 	Ms Chandra says the Accused should have been pro-active in obtaining a licence. This is correct. A certain amount of prior publicity and awareness campaigning appears to have been carried out according to the Department. More importantly the Notice to Tenderers Document of 8 December 2000 drew attention to the need for compliance with the Act and the Regulations, and that all tenderers needed to have the relevant licences and permits for dealing with R12 refrigerant.

[11] 	Apart from the failure itself to obtain the necessary licence and permit I can see no further aggravating factor. This was of course important legislation. It needed to be followed. There was good purpose in its management practices as set out in the legislation.

Mitigating factors

[12] 	Accused 1 is 47 years old married with 6 children, all but one now being grown up. He has no previous convictions. His counsel handed up financial papers on the company. Suffice to say it is a smallish company, not greatly profitable. Accused 1 has a good standing in the community.

[13] 	Mr Patel says these are technical breaches; the handling being especially technical. Accused 1 did not actually try to capture the gas, a task which would have been more dangerous. This is a new piece of legislation. He accepts however that these are strict liability offences.

[14] 	The Accused wrote to the Department of Environment as early as 15 December 2000 confirming a telephone conversation of the day before. The company asked for assistance with the provision of recovery cylinders for the large amount of gas to be recovered at the Reserve Bank. It also asked where the charge should be delivered for re-cycling. The author of the letter said their company was in compliance with the provisions of the Regulations and that they would submit the necessary applications over the next few days. Unfortunately they did not do that. Nor did the Department follow up on the matter of licensing. With new legislation, it would have been wiser if monitoring of licensing had been undertaken. Indeed the Department did not reply to the company’s letter until 7 months later.

[15] 	According to another letter from the Department the controlled substance would eventually be re-cycled and sold. The way this fitted in with the purpose of the Act was not explained. Perhaps the re-cycling process would remove the sting.

[16] 	Accused 1 maintained that he had approached the designated person who was licensed concerning the handling of the chillers and gas, prior to carrying out works at the Reserve Bank. Mr Andrews was presently on the high seas and so not available for confirmation of the date of this conversation, although if this matter had proceeded to trial, certain issues going to mitigation would have been put to him.

[17] 	Those initial talks did not reach a satisfactory conclusion. Andrews was not used on the removal, and indeed it was Andrews who made the complaint of unlicensed handling to the Department. However the Accused did decide to go ahead without Andrews as the licensed handler, a decision for which he must take now responsibility.

[18] 	The prosecution elected trial at the High Court. Presumably this course was taken because of the technical arguments likely on the validity of the Regulations. That was a proper decision to make. The Magistrate’s powers were quite adequate to deal with this case, though it was a first prosecution under the legislation. On count 1, Accused 1 is liable to a maximum fine of $400 or to 6 months imprisonment. On count 2 Accused 2 the company, is liable to a maximum fine of $100,000.

[19] 	One other matter I should mention. Ms Chandra submitted that it was an aggravating factor that the prosecution was put to great expense to prove the gas was indeed CFC12, a controlled substance within the Schedule. Apparently this proof was only forthcoming after the entry of a not guilty plea by the Accused.

[20] 	The prosecution must be cautious in laying charges when they are not yet in possession of proof of an essential element of a charge. For instance, it is not for an Accused to prove that a dangerous drug was heroin by his plea of guilty. It is for the prosecution to come to court responsibly with all its tackle in order.

Conclusion

[21] 	I do not regard this piece of offending as a deliberate flouting of the law. The law has been broken. But I consider Accused 1 tried to do the right thing at first, then drifted across the line into illegality. More could have been done by the Department to promote and achieve compliance with the new scheme of licensing. This was new legislation. It required an initial educative impetus.

[22] 	These breaches, as was said in a sentencing matter involving new legislation by the Court of Appeal a S. Karan Construction Co Ltd v The State (unreported) Court of Appeal, Fiji Civil App. AAU0020.01S, 16 August 2002, do not call for anything in the nature of a deterrent penalty. They are also at the lower end of the scale of offending.

[23] 	On count 1 [unauthorised handling] Accused 1 is sentenced to a fine of $200, payable within 30 days or in default 10 days imprisonment. On count 2 [unlawful storage] Accused 2 is sentenced to a fine of $1,000 payable within 60 days or in default committal.

A.H.C.T. GATES
JUDGE

Solicitors for the State	: Office of the Director of Public Prosecutions, Suva
Solicitors for the Accused: Messrs S.B. Patel & Co., Lautoka