Aguila v Waikato Regional Council HC Hamilton CRI 2010-019-009746
[2011] NZHC 997
•23 August 2011
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI 2010-019-009746
CHRISTIAN WILFREDO AGUILA
Appellant
v
WAIKATO REGIONAL COUNCIL
Respondent
Hearing: 22 July 2011
Appearances: P F Gorringe for Appellant
J O'Sullivan for Respondent
Judgment: 23 August 2011 at 2:30 PM
(RESERVED) JUDGMENT OF ANDREWS J
This judgment is delivered by me on 23 August 2011 at 2:30pm pursuant to r 11.5 of the High Court Rules.
..................................................... Registrar / Deputy Registrar
Counsel: P F Gorringe, DX GP20058, Hamilton
Solicitor: Almao Douch, PO Box 19173, Hamilton 3244 (J M O’Sullivan)
AGUILA V WAIKATO REGIONAL COUNCIL HC HAM CRI 2010-019-009746 23 August 2011
Introduction
[1] The appellant, Mr Aguila, has appealed against the sentence imposed on him after being convicted on three charges laid under s 338(1A) of the Resource Management Act 1991 (“the Act”). Mr Aguila submits that the fine of $15,000 imposed was manifestly excessive, because the starting point adopted ($35,000) was too high as a result of the District Court Judge having erred in equating Mr Aguila’s culpability with that of his co-offender. Mr Aguila also submits that the Judge erred in principle in imposing 120 hours of community work in addition to the fine.
Background1
[2] Mr Aguila was employed on a dairy farm property in the Waikato region. The property was leased from the owner (Mr Dick) by a company owned and operated by Mr Woods.
[3] The effluent system for the property was a “total capture” system. Under this system, effluent from the dairy shed was hosed down through a sand trap, from which the filtered liquid was pumped to a concrete sump. The contents of the sump were pumped via underground piping to designated paddocks, where the liquid was spread to the paddocks by a travelling irrigator.
[4] The property was inspected by an officer of the respondent Council in October 2008. The officer observed a pile of dairy effluent on the land surface adjacent to the sand trap, and a path of effluent discharging from the sand trap across the land towards the tributary of a stream. He observed that effluent had been washed over the nib wall of the dairy yard, and was ponding on the land surface. He also observed that while the effluent sump was empty, there was an area of ponded effluent near to the exit pipe, and the paddock around the sump was very wet and boggy with effluent for a radius of about 10 metres from the northward side of the sump. There was an historical discharge of effluent from the sump onto the paddock
surface.
1 See Waikato Regional Council v Aguila DC Hamilton CRI-2009-019-2127, 17 June 2010 (“the substantive judgment”) at [1]–[33].
[5] Charges were laid against Mr Aguila and Mr Woods. Mr Woods pleaded guilty. Mr Aguila denied the charges. He did not deny that effluent was discharged in the manner alleged, but contended that he was not legally responsible for the discharges. He said that Mr Woods was solely responsible for the discharges rather than himself, as he was not in a position to exercise control over the discharges.
[6] The charges on which the District Court Judge found Mr Aguila guilty may be summarised as follows:2
(a) Mr Aguila allowed effluent to escape from the sump exit pipe and pond in a paddock, in circumstances which may have resulted in the effluent entering water (CRN 09019500709).
(b)Mr Aguila caused the discharge of effluent from the sand trap onto land, in circumstances which may have resulted in the effluent entering water (CRN 09019500710).
(c) Mr Aguila caused the discharge of effluent from the dairy yard via a stormwater diversion past the sand trap into a farm drain, in circumstances which may have resulted in the effluent entering water (CRN 09019500711).
The substantive judgment
[7] The Judge noted that Mr Aguila’s role on the farm property was an important issue to determine.3 She set out the nub of Mr Aguila’s defence: that Mr Woods was responsible for managing the farm, and Mr Aguila was directed by Mr Woods to attend to certain tasks; he was not allowed to do anything without Mr Woods having directed him to do it. Mr Aguila also said that he did not have sufficient control over the effluent system processes which led to the effluent discharges occurring.4
[8] The Judge found that the problems which led to the discharges arose in
September 2008 and that, at that time, it was predominantly Mr Aguila who had been
2 See substantive judgment at [48]–[59].
3 Substantive judgment at [13].
4 At [18] and [39].
responsible for the dairy shed wash down. She found that Mr Aguila was aware that the wash down was causing the effluent to bypass the sand trap in a way that was not permitted, but chose to continue with the wash down regardless. She also found that Mr Aguila knew of the Permitted Activity rules which prevented such discharges.5
[9] The Judge found that Mr Aguila caused the discharges which were the subject of informations CRN –710 and CRN –711. She found that he knew that allowing effluent to escape from, or bypass, the sand trap and travel across land towards a stream was a breach of the Permitted Activity rules. She did not accept Mr Aguila’s defence that he had no option but to act as he did: she found that he could easily have raised the matter with Mr Woods and that he could have refused to undertake the unlawful activity. The Judge also noted that if she had not found that Mr Aguila
caused the discharges, she would have found that he allowed them.6
[10] With respect to information CRN –709, relating to the discharge of effluent from the sump exit pipes, the Judge found that Mr Aguila allowed the discharge; that he was required to deal with the relevant equipment as Mr Woods directed him to. However, the Judge also found that Mr Aguila’s knowledge of farming was such that he was aware that the discharge would occur. The Judge said that a reasonably prudent farm worker in Mr Aguila’s position would not have allowed the sump to overflow, would have turned the pump on, and would have taken more assertive steps to force his employer to deal with the problem. Accordingly, the Judge found
that Mr Aguila had allowed the effluent to escape.7
Sentencing judgment8
[11] The Judge placed the offending at the higher end of the scale set out in
Waikato Regional Council v GA & BG Chick Limited,9 and at the lower end of level 3 of that scale.10
5 At [49] and [51].
6 At [52]–[53].
7 At [55]–[58].
8 Waikato Regional Council v Aquila DC Hamilton CRI-2009-019-002127, 29 October 2010 (“the sentencing judgment”).
9 Waikato Regional Council v GA & BG Chick Ltd (2007) 14 ELRNZ 291 (DC).
10 Sentencing judgment at [4].
[12] The Judge noted that the first issue to consider was Mr Aguila’s culpability vis-a-vis that of Mr Woods, and where that ought to take her in terms of an end fine.11 She recorded that while his employment contract said that Mr Aguila was a “farm manager”, the tasks he undertook were not those of a farm manager. She said that “Mr Woods was the person who directed [Mr Aguila] to undertake tasks and [Mr Aguila] had difficulty in completing those to a suitable standard”.12
[13] The Judge then addressed the culpability of Mr Aguila and Mr Woods, noting that she “had difficulty working out whether or not Mr Woods or Mr Aguila is more culpable than one another”.13 Mr Woods was responsible for oversight and failed to properly manage Mr Aguila. However, the Judge said that Mr Aguila was an intelligent man who would have known that the discharge of effluent from the dairy shed would mean that it went into the stream. He knew that that was unlawful.14
[14] The Judge said that the consistency principle required her to accept the same starting point for Mr Aguila as she had for Mr Woods, unless she found that the culpability of Mr Aguila was greater than that of Mr Woods.15 The Judge did not accept the Council’s submission that Mr Aguila’s culpability was greater, and “narrowly” decided that their culpability was the same, but for different reasons. Mr Woods was required to have more of a management role, but Mr Aguila had turned a blind eye to his responsibility. Accordingly, the Judge adopted the same starting point of a $35,000 fine, and gave the same deduction of $3,500 for previous good character, leading to the same adjusted starting point of a fine of $31,500.16
[15] In determining the final sentence, the Judge considered Mr Aguila’s personal
circumstances and financial position.17 She then referred to voluntary work done by
Mr Aguila. It is apparent from the Judge’s comments and the District Court record
11 At [6].
12 At [8].
13 At [9].
14 At [9].
15 At [10].
16 At [10]–[11].
17 At [12]–[15].
that Mr Aguila’s sentencing was adjourned so that he could undertake voluntary work to “address the victim of the offending which is the environment”.18
[16] The Judge imposed a fine of $15,000, the same as that imposed on Mr Woods. She was not satisfied that he was in a position to pay anything apart from that. The Judge recorded that she had taken into account, as an offer to make amends, the voluntary work done by Mr Aguila in setting the fine at $15,000. The Judge also imposed 120 hours community work which, she said, needed to be the same as that imposed on Mr Woods. The fine of $15,000 was imposed in respect of information CRN –711. The order for community work was imposed in respect of
informations CRN –709 and CRN –710, taken globally.19
Assessment of culpability
Submissions
[17] Mr Gorringe submitted that the Judge erred in finding Mr Aguila and Mr Woods to be of equal culpability. He submitted that the Judge correctly identified the lack of any training by Mr Woods, Mr Aguila’s lack of ability and his inability to organise and pay for outside contractors, and that overall management lay with Mr Woods. He submitted that in other cases,20 those circumstances had led to a distinction being drawn as to culpability with the employer being held to be more culpable. Mr Gorringe submitted that the Judge considered whether Mr Aguila was more culpable that Mr Woods, but failed to consider whether Mr Aguila was less
culpable. He submitted that it is, therefore, open to this Court to make its own assessment of Mr Aguila’s culpability. He submitted that it should be set at two- thirds of Mr Woods. Accordingly, he submitted, the starting point for Mr Aguila’s
fine should have been $25,000 rather than $35,000.
18 At [15]–[17].
19 At [20].
20 For example, Taranaki Regional Council v Andrews DC New Plymouth CRI-2009-043-002181,
16 July 2009; Southland Regional Council v MacPherson DC Invercargill CRI-2010-025-3422,
19 January 2011; and Tasman District Council v Boyer DC Nelson CRI-2009-042-004299, 4
October 2010.
[18] Ms O’Sullivan submitted that the Judge turned her mind to the relative culpability of Mr Aguila and Mr Woods, and did not err in her assessment. She submitted that the Judge considered whether Mr Aguila was less culpable than Mr Woods; that the Judge’s statement as to the difficulty in working out whether Mr Woods or Mr Aguila was more culpable than the other necessarily involved considering whether one was less culpable than the other.
[19] Ms O'Sullivan further submitted that the assessment of equal culpability was correct. She submitted that Mr Aguila was the person on site, full time, whereas Mr Woods was managing a number of farms and travelling from one to another. She also referred to evidence from the owner of the property, Mr Dick, that he had told Mr Aguila of the problems, and she submitted that the problems were there for Mr Aguila to see, each time he was involved in wash down, and that he could have attended to them.
[20] Ms O'Sullivan also submitted that in the light of the generous discount applied by the Judge ($35,000 to $15,000) it could not be said that the end point of a fine of $15,000 was manifestly excessive.
Discussion
[21] The finding as to the culpability of Mr Aguila can only be made on the basis of all of the facts and circumstances of his offending. While I accept Ms O'Sullivan’s submission that Mr Aguila’s culpability is not to be reduced simply because of his status as employee rather than manager, that status is relevant to the assessment of culpability. I accept Ms O'Sullivan’s submission that the Judge considered comparative culpability, which necessarily included consideration of whether Mr Aguila was less culpable than Mr Woods. Nevertheless, in this case, having considered the evidence and counsel’s submissions, I have concluded that the Judge erred in finding Mr Aguila and Mr Woods to be of equal culpability. I set out my reasons for this conclusion.
[22] First, as I have noted above, it is relevant that Mr Aguila was the employee and Mr Woods the employer. Mr Aguila was subject to Mr Woods’ direction. I do
not accept that Mr Aguila’s culpability should be increased by virtue of the fact that Mr Woods failed to train him, failed to exercise supervision, and was absent from the property while managing other farms. Nor do I accept that Mr Woods’ culpability should be decreased by virtue of his having absented himself from the property while managing other farms.
[23] Secondly, Mr Dick’s evidence was that he passed on to Mr Woods his concern as to Mr Aguila’s ability.21 Mr Dick said that Mr Aguila had come from a background where he had only been involved in milking, and had not experienced managing a property. Mr Dick also said he had spoken to Mr Woods about problems with the effluent pipes and the sand trap.22 I am satisfied on the basis of Mr Dick’s evidence that Mr Woods should have been found to have a greater culpability that Mr Aguila.
[24] I accept, to some extent, Mr Gorringe’s submission that the Judge erred in finding Mr Aguila to be equally culpable on the basis that he is an intelligent man, and that he could have raised his concerns with Mr Woods more assertively, and could have refused to undertake work. Mr Aguila accepted that he was aware of the Permitted Activity rules,23 and he was aware of the problems with the effluent system. There is force in Mr Gorringe’s submission that Mr Aguila could reasonably have believed that to be “more assertive” towards Mr Woods, and to refuse to act as directed, would have placed his employment status, and thus his immigration status, in jeopardy, and put his, his wife’s, and his child’s livelihood at risk. That said,
however, while it may explain why Mr Aguila may have turned a blind eye to the defects in the effluent system, I do not consider that to be a circumstance that reduced Mr Aguila’s culpability.
[25] Overall, I have concluded that on an examination of the facts as to the management of the property and the offending, Mr Woods’ culpability should have been placed at a higher level than that of Mr Aguila. As Mr Woods has been sentenced, that inevitably means that an adjustment must be made to the starting
point for Mr Aguila, to reflect his comparatively lesser culpability.
21 District Court Notes of Evidence at 14, lines l4-20.
22 Notes of Evidence at 32, lines 26-33; 41, lines 1-30.
23 Mr Aguila’s statement, 14 November 2008 at 3.
[26] I accept Mr Gorringe’s submission that Mr Aguila’s culpability should have
been assessed at two-thirds of Mr Woods’ and that the appropriate starting point was
$25,000. I have concluded that the deductions made by the Judge to the starting point were appropriate, and should be applied proportionately to a starting point of
$25,000. Thus, the 10 per cent deduction for good character leads to an adjusted starting point of $22,500. The Judge then applied a further reduction of a little over
50 per cent to arrive at a final fine. Applying a similar reduction, I arrive at a fine of
$11,000.
Order for community work
Submissions
[27] Mr Gorringe submitted that the Judge gave no reasons for imposing community work in addition to the fine. He submitted that the Judge had concluded that $15,000 was the fine to be imposed, having given Mr Aguila credit for the 32 hours of community work he completed voluntarily before sentencing. However, he submitted, the Judge gave no reasons why further community work was appropriate. He submitted that the effect of the additional community work was to lift the overall sentence to the extent that it was manifestly excessive.
[28] Ms O'Sullivan submitted that there was no error in imposing community work; that there was no error of principle, and the order for community work did not result in a manifestly excessive sentence. She submitted that it is apparent that the Judge decided that $31,500 was the appropriate fine (that is, $35,000 less a 10 per cent discount for previous good character), and that the actual fine of $15,000 was imposed because it was all that Mr Aguila could afford to pay. She submitted that the substantial discount to $15,000 was required to be balanced by imposing community work.
[29] Ms O'Sullivan further submitted that in the absence of community work, the fine would not meet the purposes and principles of sentencing; in particular the need to recognise the seriousness of Mr Aguila’s offending, and to act as a deterrent.
Discussion
[30] It was open to the Judge to impose a combined sentence of a fine plus community work.24 In sentencing Mr Aguila, the Judge applied a reduction of 10 per cent from the starting point of $35,000, on account of Mr Aguila’s previous good character, to arrive at an adjusted starting point of $31,500. The further deduction of
$16,500 to reach the actual fine imposed was on account of Mr Aguila’s limited financial means,25 his remorse, and the community work he had completed before sentencing.
[31] For Mr Woods, the Judge’s reduction from $31,500 to $15,000 took account
of his limited financial means and his guilty plea.26
[32] I do not accept Mr Gorringe’s submission that in the light of the community work already completed by Mr Aguila, the Judge in effect increased the sentence by imposing further community work. The community work completed by Mr Aguila was a factor which, along with his financial means and his remorse, led to a fine of
$15,000. It does not lead to a conclusion that further community work could not be imposed, should that be appropriate.
[33] However, in imposing the sentence of community work, the Judge observed that the community work “needs to be the same ... as that which was imposed on Mr Woods”. The Judge has, therefore, approached the order for community work on the same basis as she approached the fine: that is, on the basis of Mr Aguila and Mr Woods having equal culpability in the offending.
[34] In the light of my conclusion, set out above, that Mr Aguila and Mr Woods should not be sentenced on the basis of equal culpability, I conclude that the order that Mr Aguila complete 120 hours of community work (the same as that ordered for Mr Woods) is incorrect. The order for community work to be completed by Mr
Aguila should reflect his lesser culpability, which I have found to be two-thirds that
24 See Sentencing Act 2002 s 20(1).
25 Required to be considered pursuant to s 40 of the Sentencing Act 2002.
26 Sentencing judgment at [19].
of Mr Woods. Accordingly, the order for community work to be completed by Mr
Aguila should have been 80 hours.
Result
[35] The appeal against sentence is allowed. The sentence imposed on Mr Aguila is quashed and, in substitution, he is ordered to pay a fine of $11,000, and to complete 80 hours of community work. In accordance with the Judge’s sentencing decision, the fine is to be imposed in respect of information CRN –711, and 90 per cent of that fine is to be paid to the Council. The community work is in respect of informations CRN –709 and –710, and is a global order in respect of both
informations.
Andrews J
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