Crafar v Waikato Regional Council HC Hamilton CRI 2009-419-67
[2010] NZHC 1855
•13 September 2010
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI 2009-419-000067
CRI 2009-419-000068
CRI 2009-419-000069
ALLAN JOHN CRAFAR FRANK ROBERT CRAFAR ELIZABETH JEAN CRAFAR Appellants
v
WAIKATO REGIONAL COUNCIL
Respondent
Hearing: 30 July 2010
Appearances: Allan Crafar (Appellant) in person
F Pilditch for Respondent
Judgment: 13 September 2010
(RESERVED) JUDGMENT OF ANDREWS J [Appeal against conviction and sentence]
This judgment is delivered by me on 13 September 2010 at 2:30pm pursuant to r 11.5 of the High Court Rules.
..................................................... Registrar / Deputy Registrar
Party: A J Crafar, F R Crafar and E J Crafar, 452 Goudies Road, Reporoa. Solicitor: Gordon Pilditch, PO Box 740, Rotorua 3040
CRAFAR And Ors V WAIKATO REGIONAL COUNCIL HC HAM CRI 2009-419-000067 [13 September
2010]
Introduction
[1] On 20 July 2009, in the District Court at Te Awamutu, Judge Newhook issued a reserved judgment (―the judgment‖) in which he found the appellants Allan Crafar, Frank Crafar, and Elizabeth Crafar (―the Crafars‖) and Hillside Ltd (a company of which all three were directors) guilty of charges laid under the Resource
Management Act 1991 (―the Act‖).[1] The charges were laid by the respondent, the
[1] Waikato Regional Council v Hillside Ltd DC Te Awamutu CRI-2008-018-500–880, 20 July 2009.
Waikato Regional Council (otherwise known as Environment Waikato) (―the
Council‖).
[2] In general, the charges related to the unlawful discharge of dairy effluent at various dates between 11 October 2007 and 1 April 2008. Messrs Allan and Frank Crafar and Hillside Ltd were each convicted on ten charges. Mrs Elizabeth Crafar was convicted on four charges. In respect of the Crafars, the finding of guilt was on the basis that the Judge was satisfied beyond reasonable doubt that they had permitted the various offences to be committed.
[3] On 28 August 2009 Messrs Allan and Frank Crafar and Hillside Ltd were each fined $29,500. Mrs Elizabeth Crafar was fined $1,500.[2]
[2] Waikato Regional council v Hillside Limited DC Te Awamutu CRI-2008-018-500–880, 28 August 2009.
[4] On 29 September 2009 each of the Crafars and Hillside Ltd filed appeals against conviction and sentence, on the grounds that the District Court Judge was erroneous in law and in fact. Hillside Ltd is now in receivership. Its appeal was withdrawn by a letter dated 16 November 2009 from the solicitors for the receivers.
[5] The issues for determination in respect of the appeals are:
a) Whether leave should be given for the appeals to be filed out of time;
b)If leave is granted, whether the Judge made any error of law or fact in reaching his decision to convict the Crafars; and
c) Whether the sentences imposed were outside the Judge‘s jurisdiction,
and if within the jurisdiction, whether the sentences were manifestly excessive.
Facts
[6] At all material times Hillside Ltd owned a dairy farm at 183 Collins Road, near Hamilton (―the farm‖). Hillside Ltd engaged a sharemilker (Mr Lammas) to operate the farm. Shortly after beginning the sharemilking contract on 1 June 2007
Mr Lammas contacted the Council in relation to difficulties in managing dairy effluent on the farm.
[7] In general terms, the effluent system in operation on the farm involved two water tanks at the top of the concrete dairy pad adjacent to the dairy shed being filled with water (or liquid effluent) and the water or liquid effluent being released to wash down the dairy pad. The ―wash‖ material (containing dairy effluent left on the pad) was to drain into two sumps at the bottom of the dairy pad. Electrical pumps connected to the sumps were then to pump the raw effluent through pipes to a travelling irrigator, to be used for irrigation and fertilisation of farm paddocks.
[8] Between 9 July 2007 and 1 April 2008 the Council conducted a number of site inspections at the farm. Evidence was detected of effluent discharge that breached the applicable provisions of the Waikato Regional Plan (―the Plan‖). In addition to identifying evidence of breaches of the Plan, the Council issued abatement notices to Hillside Ltd and the Crafars, directing that various steps be taken to ensure that the non-compliance and the unlawful discharge of dairy effluent cease.
[9] There were numerous communications between the Council and Messrs
Allan and Frank Crafar, in part enclosing the abatement notices. From December
2007 communications were also sent to Mrs Elizabeth Crafar.
Charges
[10] Section 15(1) of the Act prohibits the discharge of contaminants into the environment (that is, into water, or onto or into land in circumstances which may result in the contaminant entering water, or into the air), unless the discharge is expressly allowed by, amongst other things, a rule in a regional plan.
[11] Under the Waikato Regional Plan the discharge of dairy effluent (which comes within the definition of ―contaminant‖ under s 2 of the Act) is a permitted activity provided it complies with the provisions of Permitted Activity Rule 3.5.5.1. Rule 3.5.5.1 sets out 10 conditions, including (as relevant in this case):
(a) No discharge of effluent to water shall occur from any effluent holding facilities.
...
(c) All effluent treatment or storage facilities (e.g. sumps or ponds) shall be sealed so as to restrict seepage of effluent. The permeability of the sealing layer shall not exceed 1x10-9 metres per second.
...
(e) The maximum loading rate of effluent onto any part of the irrigated land shall not exceed 25 millimetres depth per application.
[12] On 10 April 2008 10 Informations were laid by the Council against each of Hillside Ltd and the Crafars. The charges against each of the Crafars were identical, and were laid under s 338(1)(a) or (c) of the Act which provide that it is an offence against the Act to contravene, or permit a contravention of, s 15 of the Act, or any abatement notice.
[13] As laid, each Information alleged that the named defendant ―did contravene s 15(1)(b)‖ of the Act or ―contravened an Abatement Notice‖. On 17 April 2009 counsel for the Council filed and served a memorandum clarifying the basis of the laying of charges under s 338(1) as being that the named defendant ―permitted the contravention‖ of the Act rather than ―contravened‖ the Act. At the beginning of the hearing in the District Court the Council applied to amend the Informations against each of the Crafars so as to read ―permitted a contravention of‖ rather than
―did contravene‖. The intention to apply for the amendment had been signalled in counsel‘s memorandum.
[14] Having heard from counsel for the Council and the Crafars, the Judge allowed the amendments.[3] A summary of the charges faced by each of the Crafars (based on a summary provided to the Judge at the start of the hearing and by
[3] Waikato Regional Council v Hillside Ltd DC Te Awamutu CRI-2008-019-500880, 2 June 2009.
reference to the charges against Allan Crafar) is set out in the following table:
CRN
No.
Date Charge Particulars 891 11.10.07 Permitted contravention
of s 15(1)(b)
Seepage from unsealed holding pond 892 11.10. 07 " Discharge from feed pad and yard to
ground
893 11.10. 07 " Overflow of effluent from second
sump into unsealed holding pond
894 13.11. 07 " Discharge of effluent from broken
irrigator hose
895 05.12.07–
10.12.07
" Over-irrigation of paddocks 156 and
158
896 10.12.07–
23.01.08
" Over-application irrigator to paddock
adjacent to sump
897 10.12.07–
23.01.08
" Overflow of effluent from second
sump onto land
898 10.12.07 " Overflow of effluent from second
sump into unsealed holding pond
899 01.04.08 " Over-application of irrigator from a
coupling
890 01.04.08 Permitted contravention
of an Abatement Notice
Breach of abatement notice issued on
1 February 2008
The District Court decision
[15] The Judge heard evidence on behalf of the Council and on behalf of Hillside
Ltd and the Crafars over a period of eight days from 18 to 22 May 2009 and 26 to 28
May 2009. Expert evidence was called for both sides.
[16] In very general terms, the evidence on behalf of the Council was to the effect that through a combination of factors there was a systemic failure in managing effluent at the farm in accordance with the Plan, and that the effluent system at the farm was either inadequate to meet the demands placed on it by the number of cows being farmed, or was operated to the limits of its tolerance so that an event such as heavy rainfall could produce unlawful discharges without the ability to contain them. The evidence given on behalf of Hillside Ltd and the Crafars was to the effect that the effluent system was more than adequate, and that fault for the numerous discharges lay with the sharemilker, Mr Lammas.
[17] At the end of the hearing the Judge directed that written submissions be filed on behalf of the Council, and for Hillside Ltd and the Crafars. Written submissions were duly filed. The judgment was delivered on 20 July 2009.
[18] The Judge outlined the evidence relating to the charges in detail. In so doing he considered the charges in 10 groups, based on the 10 identical charges that each defendant faced. The Judge also outlined the expert evidence given at the hearing.
[19] The Judge considered issues arising in relation to the charges, as follows:
a) The meaning of ―permits a contravention‖ under s 338(1) of the Act.
The Judge found that the concept of ―permits‖ was wide, encompassing providing the opportunity for, allowing, acquiescing, abstaining from preventing, and tolerating the acts or omissions leading to contravention.[4] The Judge held that some knowledge of the acts or omissions was required. He held that Messrs Allan and Frank Crafar, at least, had extensive knowledge of the alleged breaches but failed to act.[5]
[4] At [262].
[5] At [260].
b)Communications from the Council up to mid-December 2007 had been directed to Hillside Ltd and Messrs Allan and Frank Crafar only.
The Judge held that although Mrs Elizabeth Crafar was also a director
of Hillside Ltd and might have known of the breaches, this was insufficient to satisfy the criminal standard.[6]
[6] At [264] – [269].
c) Hillside Ltd and the Crafars could be liable as principals for the acts of the sharemilker as agent. The Judge found that the sharemilker was an agent contractor under s 340 of the Act.[7]
[7] At [270] – [290].
d)The Crafars did not have a defence of ―officially induced error‖ (that is, that there was permission for an unsealed holding pond to be used to store effluent in an emergency).[8]
[8] At [305].
e) The onus was on the Council to prove an unlawful discharge in contravention of s 15. It was then for Hillside Ltd and the Crafars to show on the balance of probabilities that the discharge had occurred lawfully in accordance with r 3.5.5.1 of the Plan.[9] The Judge held that Hillside Ltd and the Crafars had not proved that the holding pond was sufficiently sealed to the standard in r 3.5.5.1(c).
[9] At [306] – [314].
f) The Judge referred to evidence given on behalf of Hillside Ltd and the Crafars to the effect that the permeability likely to have been achieved for the holding pond was only 1x10-7 metres per second.[10]
[10] At [314].
[20] The Judge dismissed six charges against Mrs Elizabeth Crafar, being charges alleging offending before and up to 10 December 2007.[11] The Judge found that all of the remaining charges were proved beyond reasonable doubt.[12] He found that throughout the relevant period, and importantly on the dates of the alleged offences, there was a systemic failure of the effluent system. He said:[13]
[11] At [269].
[12] At [316] – [349].
[13] At [319] – [321].
[319] There was on this farm throughout the relevant period, and importantly on the relevant dates, a systemic failure of the effluent system.
Many factors contributed including (but not limited to) excessive numbers of cows being milked, fed out, and stood-over on the feed pad having regard to the prevailing weather conditions, lack of proper maintenance of the existing water supply system, failure to clean out the sand trap, failure to take care over the volumes and thickness of effluent being directed to the travelling irrigator(s), failure to maintain proper surveillance and control over the irrigator(s), failure to maintain and clean equipment and systems generally, and generally operating the system to the limits of its tolerance or beyond such that there was no back-stop or contingency when problems (inevitably) cropped up. At the heart of a number of the problems was a sharemilker who was not running and maintaining the system properly on account of a number of shortcomings including lack of skill and experience when under pressure, exacerbated by a traumatic event.
[320] I have already found against the [Crafars] concerning the legal submissions about ―permitting‖ and agency on the part of the sharemilker. Attempts to place all blame on the sharemilker do not afford a successful defence. Not only in terms of the expectations of the act on farm owners, but also flowing from the terms of the sharemilking agreement, Hillside Limited and the Crafars having prime responsibility for the management and control of the farm and its operations including management of the herd, with all work performed by the sharemilker to be undertaken in accordance with such reasonable direction and instructions from them as are needed from time to time.
[321] Mr Lammas may well have had his shortcomings as a sharemilker, particularly in comparison to his successor ... . He may also have had inadequate control over his staff resulting in failures of cleaning and maintenance of various parts of the system, and even in inappropriate disposal of effluent off the edges of the feed pad and the like. But the [Crafars] have the ultimate duty to manage and control the situation. ...
[21] In his sentencing decision[14] the Judge considered the nature of the environment affected, the extent of damage inflicted, the deliberateness of the offence, the attitude of Hillside Ltd and the Crafars, their financial position, and existing criminal record. With respect to the existing criminal record, the Judge noted that Hillside Ltd is part of a group of companies (known as ―Crafarms‖) owned and operated by the Crafar family. The Judge‘s attention was drawn to
[14] Waikato Regional Council v Hillside Farms Ltd DC Hamilton CRI-2008-019-2997, 28 August 2009.
convictions of companies within the group.[15]
[15] See Waikato Regional Council v Plateau Farms Ltd [2008] DCR 305 (DC); Hawkes Bay Regional Council v Te Pohue Ltd DC Napier, CRI-2007-041-1243, 7 November 2007; and Hawkes Bay Regional Council v Taharua Limited DC Napier, CRI-2007-041-3582, CRI- 2007-041-3580, 1 August 2008.
[22] The Judge referred to three levels of seriousness identified for cases relating to the discharge of effluent in Waikato Regional Council v B G Chick Ltd.[16] The three levels identified were: level 1 (the least serious), penalty $0-15,000; level 2 (moderately serious), penalty $15,000-30,000; and level 3 (more than moderately serious), penalty $30,000 plus.
[16] Waikato Regional Council v B G Chick Ltd (2007) 14 ELRNZ 291 (DC).
[23] The Judge accepted the submission made on behalf of the Council that he should approach sentencing on a global basis, having regard to the description of level 3 in Waikato Regional Council v B G Chick Ltd, and to the fact that in the present case there was a set of system failures. The Judge adopted a starting point of
$80,000, then allowed a small discount for the approach taken by the Council in a letter sent to Hillside Ltd and the Crafars on 2 August 2007, but then applied an uplift to take account of aggravating features of the offending and the offenders, to arrive at the fines imposed.
[24] As mentioned earlier, each of Hillside Ltd, and Messrs Allan and Frank Crafar were fined $29,500, and Mrs Elizabeth Crafar was fined $1,500. The Judge noted that the low level of the fine imposed on Mrs Crafar recognised that she had been convicted on four charges, not ten, and took account of the fact that the severe difficulties on the farm were not brought to her attention by the Council ―until late in the piece‖, and took account of her ―significantly lesser involvement in the management‖. Nevertheless, the Judge found that Mrs Crafar was ―drawn into responsibility for the continuing system failures after December 2007, and
permitting them‖.[17]
[17] Sentencing decision at [65].
Grounds of appeal
[25] Around the beginning of May 2010 (the document is neither dated nor date- stamped by the Court), the Crafars filed particulars of their appeals. They identified
11 points of appeal. These may be summarised as being that the Judge erred in:
a) finding them guilty in their personal capacity;
b) holding them criminally liable for the actions of the sharemilker;
c) finding that there was a systemic failure of the effluent system;
d) finding that the holding pond was not sealed to the requisite standard;
and
e) finding that they were guilty of the offences alleged to have been committed on 13 November 2007, when these occurred as a result of a mechanical failure.
[26] At the beginning of the appeal hearing Mr Allan Crafar (who acted as spokesman for himself, Mr Frank Crafar and Mrs Elizabeth Crafar) presented a written ―synopsis of submissions on appeal‖. That document purported to present submissions on behalf of Hillside Ltd as well as the Crafars personally. In large part the written submissions addressed the conviction of Hillside Ltd. It was pointed out to Mr Crafar that the appeal by Hillside Ltd had been withdrawn, and that the Court could not consider submissions on behalf of the company.
[27] The written submissions also addressed an issue identified as ―estoppel, or officially induced error‖ and ―conflicting laws between the [Resource Management Act] and Animal Welfare Act 1999‖. Those matters had not been raised in the Crafars‘ particulars of appeal. After a short adjournment to consider the written submissions Mr Pilditch, on behalf of the Council, was comfortable to address the issue of the Animal Welfare Act, but was given leave to file written submissions in relation to ―officially induced error‖. Supplementary submissions were filed on 13
August 2010.
Should the appeal be dismissed for being out of time and not in proper form?
[28] The Crafars‘ appeals are brought under s 115 of the Summary Proceedings Act 1957, which provides a general right of appeal against conviction and sentence. Pursuant to s 116(1) of the Summary Proceedings Act, the Crafars‘ appeals were required to be filed within 28 days after the day on which they were sentenced.
[29] The Crafars were sentenced on 28 August 2009. Accordingly, their appeals should have been filed by Friday 25 September 2009. Their appeals were in fact filed on 29 September 2009 and were, therefore, four days late. Under s 123 of the Summary Proceedings Act the Court has power to extend time for filing an appeal
―on the application of the appellant or intending appellant‖. The Crafars have not
made any application for an extension of time to file their appeals.
[30] At the appeal hearing Mr Pilditch submitted that leave should not be given for the appeals to be filed out of time. With reference to the criteria in relation to applications for extension of time set out in Cleggs Limited v Department of Internal Affairs,[18] Mr Pilditch submitted that the Crafars were represented by counsel up until the time the appeals were filed, that they had had ample time to consider an appeal against conviction, and that they could not establish that there is any likelihood that
[18] Cleggs Limited v Department of Internal Affairs HC Auckland M1032/84, 5 September 1984.
their appeals would succeed.
[31] Mr Pilditch also submitted that the notices of appeal did not comply with s 116(1) of the Summary Proceedings Act, which requires the notice to set out the grounds of the appeal. He submitted that to state that
The decision of His Honour the District Court Judge was erroneous in law and in fact. The details of the grounds of appeal will be more particularly set out in submissions to be filed in support of the Appeal.
did not comply with s 116(1). He submitted that s 116(1) requires at least some information as to the grounds of appeal to be set out in the notice of appeal. Mr Pilditch also submitted that the Crafars had failed to comply with directions of the Court as to the filing of submissions on appeal.
[32] I have noted above that Mr Allan Crafar appeared at the appeal hearing as spokesman for himself, Mr Frank Crafar and Mrs Elizabeth Crafar. The Court file discloses that the Crafars‘ former solicitors sought leave to withdraw as solicitors on the record on 27 October 2009. It is also apparent that on 4 February 2010 Messrs
Allan and Frank Crafar advised, at a hearing before Allan J, that they had applied for
legal aid, and that that application was under consideration. On 24 March 2010
Allan J was advised that no finality had been reached with respect to legal aid.
[33] I have concluded that the delay of four days in filing the notices of appeal is not sufficient in and of itself to strike out the appeals for being out of time. Mr Pilditch responsibly accepted that it was appropriate to hear the appeals.
[34] With respect to the defect in form, I note that s 120 of the Summary
Proceedings Act provides:
On the hearing of any general appeal no objection to any defect in the notice of appeal shall be allowed, unless the High Court is of opinion that the respondent had been substantially prejudiced thereby:
provided that, whether or not any objection is allowed, the Court may direct or allow the notice to be amended on such terms as to costs or otherwise as it thinks fit.
[35] In this case, Mr Pilditch presented submissions prepared on the basis of the particulars of appeal filed in early May 2010. Although new matters were raised in the written submissions presented at the appeal hearing, Mr Pilditch was comfortable to respond immediately as to one point (the interaction between the Act and the Animal Welfare Act) and was given time to file submissions on the other (―officially induced error‖). Accordingly, I cannot conclude that the Council has been
―substantially prejudiced‖ by the defects in the notices of appeal, and failure to file
submissions on appeal.
[36] Accordingly, leave to appeal is granted.
Approach on appeal
[37] Pursuant to s 119(1) of the Summary Proceedings Act the appeal is by way of re-hearing. Pursuant to s 121, the High Court is to hear and determine the appeal. The Court may confirm the conviction, set aside, or amend the conviction and, if the Court thinks fit, quash the sentence imposed and either impose any sentence that the convicting Court could have imposed, or deal with the appellant in any other way that the convicting Court could have.
[38] In its judgment in Austin, Nichols & Co Inc v Stichting Lodestar,[19] Elias CJ, delivering the judgment of the Court said:[20]
[19] Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
[20] At [16].
[16] Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate Court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate Court‘s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances, it is an error for the High Court to defer to the lower Court‘s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.
(footnotes omitted.)
[39] In Barry v Police,[21] Stevens J referred to the paragraph in Austin, Nichols
[21] Barry v Police HC Whangarei CRI-2007-488-0029, 3 April 2008.
just cited and observed:[22]
[22] At [25].
... According to the Court of Appeal in Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190, an appellate Court should not reverse a factual finding unless compelling grounds were shown for doing so. However, this may now be regarded as too broadly stated a principle. The Supreme Court in Austin Nichols was careful to limit the deference advocated in Rae to instances where findings of fact were credibility-dependent. The Court stated at [13] that:
The appeal court must be persuaded that the decision is wrong but in
reaching that view no ―deference‖ is required beyond the
―customary‖ caution appropriate when seeing the witnesses provides an advantage because credibility is important.
[40] With those statements as to the approach on appeal in mind, I turn to consider the matters raised on behalf of the appellants.
Should the Crafars have been charged and convicted in their personal capacity?
[41] The Crafars submitted that they should only have been prosecuted as directors of Hillside Ltd, and that a conviction against Hillside Ltd should have been entered before charges against any of them, as company directors, could be pursued. They submitted that there was no relevant legal nexus between the appellants and the
farm property on which the offending occurred.
[42] The Crafars submitted that while the Act contemplates charges against corporate owners and potentially company directors, when offending under s 15 is alleged, the Act also contemplates that a charge under s 15 will be proved against the corporate owner, and a conviction entered, before charges can be pursued against any of the directors of the company.
[43] Mr Pilditch submitted that the Crafars‘ submissions were misconceived. He pointed to the statutory basis on which the appellants were charged. He referred first to the wording of s 15(1)(b):
No person may discharge any ... contaminant...
[44] Mr Pilditch then referred to the section under which the Crafars were charged: s 338(1) of the Act:
Every person commits an offence against this Act who contravenes, or permits a contravention of, any of the following:
(a) sections ... 15 ...
[45] Mr Pilditch submitted that under s 15 it is an offence if a person actually contravenes s 15, or permits a contravention of s 15, by discharging a contaminant into the environment. He referred to s 340 of the Act, which provides for principals to be liable for the acts of their agents, and submitted that the Crafars were not charged under s 340; they were charged under s 338(1).
[46] I accept Mr Pilditch‘s submissions. There is no requirement under the Act that a director of a company can only be charged with an offence under s 340. No such limitation is set out in the Act, and none can be read into it. To the contrary, the wording of s 338 is clear in not limiting its application:
Every person commits an offence who contravenes or permits a contravention of ...
[47] In McPhail v Durbridge Developments Ltd (in liq),[23] the Auckland Regional
[23] McPhail v Durbridge Developments Ltd (in liq) (1998) 8 NZCLC 261,610 (HC).
Council applied for leave to continue a criminal prosecution against the company in liquidation. It was submitted that it was necessary to proceed against the company in
order to secure a conviction against the director of the company. Randerson J refused leave, noting that separate Informations had been laid against the director personally under the ―permitting‖ provisions of s 338 of the Act.[24]
[24] At 261,616.
[48] I also accept Mr Pilditch‘s submission that the Crafars cannot appeal against the Council‘s decision to lay charges against them, or its choice of the section of the Act under which charges were laid.
[49] Accordingly, the Crafars cannot succeed on this ground of appeal.
Should the Judge have found the Crafars guilty when the farm was operated by a sharemilker?
[50] The Crafars submitted that they should not have been found guilty, because the farm was operated by a sharemilker, Mr Lammas, who, by signing the sharemilking contract, agreed that he would operate within the law, and would indemnify the owners against his own malpractice. They submitted that the Judge‘s finding put all sharemilking contracts at risk.
[51] The Judge addressed the Crafars‘ arguments on this point in his discussion of
―permitting‖ a contravention[25] and in his discussion of Hillside Ltd‘s liability for the sharemilker‘s actions.[26] The Judge held that the notion of ―permitting‖ a contravention required the Council to prove that the Crafars had:[27]
[25] At [238] – [269].
[26] At [270] – [290].
[27] At [262].
a) provided or afforded an opportunity for acts or omissions which lead to the contravention;
b)allowed acts or omissions to be done or occur that resulted in contravention;
c) acquiesced in acts or omissions which resulted in contravention;
d)abstained from preventing acts or omissions which led to contravention; and
e) tolerated acts or omissions which led to contravention.
[52] That interpretation demonstrates that the Judge concluded that some degree of knowledge on the part of the Crafars had to be proved beyond reasonable doubt. To allow, acquiesce, tolerate, or fail to prevent acts or omissions that led to a contravention of the act required a defendant to have some knowledge that those acts or omissions had occurred, or were occurring.
[53] With respect to knowledge, the Judge referred to correspondence, including abatement notices, that were sent to Messrs Allan and Frank Crafar and (as from December 2007) to Mrs Elizabeth Crafar.[28]
[28] At [264] – [268].
[54] The Judge also concluded that it was ―abundantly clear‖ that the Crafars were concerned in the management of the company and that they ―had extensive knowledge of the concerns of the Council about actual and further potential breaches‖. The Judge also noted evidence that Messrs Allan and Frank Crafar had
come to the farm, and had received the various notifications of the Council.[29]
[29] At [268].
[55] The Judge‘s reasoning for dismissing six Informations which alleged offending up to and including 10 December 2007 against Mrs Elizabeth Crafar was that he was not satisfied to the criminal standard of beyond reasonable doubt that she had received notifications from the Council up to that point.
[56] Mr Pilditch submitted that the Judge was correct in relation both to his rulings on the law and his factual assessment.
[57] I am satisfied that the Crafars cannot succeed on their submission that they should not be criminally liable for the acts or omissions of the sharemilker. I accept Mr Pilditch‘s submission that the sharemilking agreement has no relevance to the charges against the Crafars personally. The Crafars‘ criminal liability arose from
their ―permitting‖ the contraventions. The Judge found that they had the requisite knowledge in order to found liability.[30] I can find no error in the Judge‘s conclusion. The Crafars cannot succeed on this ground of appeal.
[30] In the case of Mrs Elizabeth Crafar, from December 2007 onwards
Did the Judge err in finding that there was a systemic failure of the effluent system?
[58] The Judge found as a fact that there was a systemic failure to manage effluent at the farm.[31] That finding was based on the evidence given at the hearing, including evidence by Council officers (in relation to the particulars of the breaches of s 15(1)(b)), the sharemilker (Mr Lammas), and an expert witness. Evidence was also called on behalf of the Crafars by Mr Elmes, who took over as sharemilker from Mr Lammas, and by an expert witness.
[31] At [319].
[59] Mr Lammas gave detailed evidence of the difficulties that he experienced with the effluent system in place on the farm. The Council‘s expert witness referred to ―key problems‖ in the system, such as lack of water for the wash-down system, and lack of contingency in the system.[32]
[32] See [168] – [194].
[60] The Judge addressed Mr Elmes‘ evidence, describing Mr Elmes as ―clearly very able and experienced‖, and noting that Mr Elmes had ―met with considerable success‖ on the farm after he took over from Mr Lammas. Mr Elmes‘ evidence was to the effect that the effluent system was a good one, and that any inability to use it effectively and legally resulted from poor management. The Judge noted that improvements had been introduced during Mr Elmes‘ tenure of the farm, of which
Mr Lammas had not had the benefit.[33] The Judge concluded that whether there had
[33] At [223] – [232].
previously been poor management, or whether the improvements were necessary in order for the system to comply with the law and handle the number of cows being milked, in the climatic conditions, having regard to his findings on matters of law,
the shortcomings were ultimately the responsibility of the Crafars.[34]
[34] At [233].
[61] I am satisfied that the Judge was correct in his conclusion that whether there was management failure, the contraventions are ultimately the responsibility of the Crafars. One comes back to the charge against them, under s 338(1) that they
―permitted‖ the contraventions.
[62] Accordingly, the Crafars cannot succeed on this ground of appeal.
Did the Judge err in finding that the “unsealed holding pond” contravened the
Act?
[63] As mentioned earlier,[35] the effluent system at the farm involved water (or a mixture of water and liquid effluent) being released from two tanks at the top of the dairy pad, to wash down effluent into two sumps at the bottom of the dairy pad. Adjacent to the two sumps was a hole (a holding pond) that had been dug into the earth at some earlier stage.
[35] At [7] above.
[64] The Council alleged that effluent had seeped from a bund created around the holding pond to the adjoining paddock, or had overflowed into the holding pond. The charges arose out of the Council investigators‘ observations, and were that effluent in the holding pond may have entered ground water.[36]
[36] See charges 891, 893, 897, and 898, listed in the Table at [14] above.
[65] The Judge referred to evidence from Council investigators who had attended at the farm on occasions and observed that effluent had been deposited in this hole, and that the hole was being used as a storage facility or holding pond for the effluent
that could not be accommodated by the effluent system.[37]
[37] At [68] – [167].
[66] Evidence was also given on behalf of the Council by the sharemilker (Mr Lammas), and the Council‘s compliance and enforcement manager. The latter evidence was as to the water table in the vicinity of the holding pond, and the manager‘s belief that the water table was intersecting the hole.
[67] Evidence was given on behalf of the Crafars by two experts, one qualified in soil, waste, and water engineering, the other a soil scientist. The engineer‘s evidence
was to the effect that in the area of the holding pond the static water table was lower than the bottom of the holding pond. The soil scientist had visited the area after the holding pond had been filled in. She assessed the permeability of the holding pond by comparison with that of a newly constructed pond about 100 metres away.
[68] In each of the charges relating to the holding pond it was alleged that the seepage or overflow from the holding pond ―may result in any other contaminant ... entering water, namely ground water ...‖ The Council‘s evidence was directed at establishing that effluent discharged into the holding pond ―may‖ have resulted in a contaminant entering ground water. The Council‘s case was that a discharge to the holding pond was prima facie unlawful, because it was a discharge to land, where it was possible that a contaminant (effluent) might enter ground water.
[69] As mentioned earlier,[38] it is a defence to the charge if the discharge was
[38] At [10] above.
―expressly allowed‖ by, amongst other things, a rule in a Regional Plan. As the Judge observed, the Council had the onus of proving that the alleged discharges had occurred and that contaminant may have entered ground water. The burden of proof was then on Hillside Ltd and the Crafars to prove, on the balance of probabilities, that the discharges were permitted by the relevant rule (Rule 3.5.5.1) of the Plan.[39]
[39] At [307] – [310].
[70] The Judge held that the Council had proved beyond reasonable doubt that effluent had been discharged to the holding pond. The Judge noted that the relevant condition in order for the discharge to the holding pond to be permitted was that the permeability of the sealing layer ―[should] not exceed 1 x 10-9 metres per second. The Judge noted ―on the defendants‘ own evidence there was a shortfall against the requirement of the Rule‖.[40]
[40] At [313] – [314].
[71] The Crafars submitted that the Judge had erred in accepting the Council‘s evidence rather than that of the expert witnesses who gave evidence for the defence. The defence witnesses, they said, ―had visited the site and done suitable tests, unlike the layman [Council] witnesses‖.
[72] I am satisfied that the Judge was correct in his conclusions as to the onus and standard of proof.[41] The onus of proof under s15 (1)(b) of the Act was not on the Council to prove that the discharge to the holding pond was not ―expressly allowed‖ by Rule 3.5.5.1 of the Plan. Rather, pursuant to s 67(8) of the Summary Proceedings Act it was for Hillside Ltd and the Crafars to prove that the discharge was ―expressly allowed‖, that being an ―exception, exemption, excuse, or qualification‖. As with
[41] At [306] – [314].
any onus on defendants, they were required to prove that the discharge to the holding
pond was ―expressly allowed‖ to the standard of the balance of probabilities.[42]
[42] See also Bay of Plenty Regional Council v Bay Milk Products Limited [1996] 3 NZLR 120 (HC) and Scott v Otago Regional Council HC Dunedin CRI-2008-412-17, 3 November 2008.
[73] Further, I am not satisfied that in concluding[43] that the Council had proved beyond reasonable doubt that the alleged discharge had occurred, and that Hillside Ltd and the Crafars had failed to prove beyond reasonable doubt that the discharge was ―expressly allowed‖, the Judge made any error in his assessment of the evidence and conclusions in relation to that evidence.
[43] At [327].
[74] The Crafars cannot succeed on this ground of appeal.
Did the Judge err in finding Messrs Allan and Frank Crafar guilty in relation to the discharge of effluent from a broken irrigator hose?
[75] These charges[44] related to a site inspection conducted on 13 November 2007.
[44] Refer charge 893 in the Table at [14] above.
[76] The Judge noted that a Council Resource Officer had observed two tracks of farm effluent flowing across the surface of a paddock towards a farm drain. The tracks covered an area of about 10 x 30 metres. This was in the vicinity of a travelling irrigator and the officer observed that the irrigator‘s hose coupling had been disconnected at some stage. The officer found discoloured water from the farm drain was mixing with clean water in another drain. Samples were taken from the
farm drain, upstream and downstream of where the track of effluent entered.
[77] Both the upstream and downstream samples were found on analysis to contain high concentrations of effluent. On the basis of photographs of the effluent tracks and the depth of sludge observed, evidence was given that liquid effluent had been applied to the paddock substantially in excess of the limited of 25 millimetres permitted under Rule 3.5.5.1 of the Plan.
[78] The sharemilker (Mr Lammas) said in evidence that on the day this occurred he and his staff realised after milking that the irrigator was not moving. They found that ―a joiner had popped‖ and rejoined it straightaway. He acknowledged that no steps were taken to clean up the effluent that was heading down into the drain, as they were ―pretty busy‖.
[79] The Judge concluded on the basis of the Council officer‘s evidence, the laboratory analysis, the analysis of photographs of the spill, and the analysis of the effluent, that he was satisfied that the Council had proved that liquid effluent had been applied onto land substantially in excess of the allowable depth of 25 millimetres. The Judge also concluded that the sharemilker‘s evidence did not
establish a successful defence.[45]
[45] At [336] – [337].
[80] The Crafars submitted that the evidence established only that there had been a mechanical breakdown on the day, and that it had been fixed promptly. They submitted that no evidence was produced that this was a regular occurrence on the farm. They also submitted that the upstream and downstream samples made ―a mockery‖ of the charges. They submitted that the high contamination in the
―upstream‖ sample showed that the contaminant had come from a neighbouring farm.
[81] Mr Pilditch submitted that if the Crafars had wished to rely on a ―mechanical breakdown on the day‖ as a defence to these charges, they were required to meet the three conditions set out in s 341(2)(b) of the Act which provides that:
... it is a defence to [a prosecution under s 15] if the defendant proves — ...
(b) that the action or event to which the prosecution relates was due to an event beyond the control of the defendant, including natural disaster, mechanical failure, or sabotage, and in each case —
(i) the action or event could not reasonably have been foreseen or been provided against by the defendant; and
(ii) the effects of the action or event were adequately mitigated or remedied by the defendant after it occurred.
[82] Mr Pilditch submitted that no evidence was given on behalf of Hillside Ltd or the Crafars of any steps taken to adequately mitigate or remedy the effects of the event after it occurred.
[83] I accept that the Judge was not in error in finding that these charges were proved. There was no evidence given of any steps taken to mitigate or remedy the spill caused by the broken irrigator hose. In fact, the evidence before the Judge was to the contrary: no steps were taken to mitigate or remedy the spill.
[84] Nor is there anything in the Crafar‘s criticism of the evidence as to contaminant levels in the drain. The evidence was that there were high levels of contaminant both upstream and downstream. I accept Mr Pilditch‘s submission that this observation does not detract from the evidence given by the Council officer as to his observation of contaminant having entered the drain, on the day.
[85] The Crafars cannot succeed on this ground of appeal.
Is there a conflict between the Act and the Animal Welfare Act 1999?
[86] In the written submissions presented by Mr Crafar at the appeal hearing it was submitted that the abatement notices were unenforceable. It was submitted that the first abatement notice was served on 1 February 2006, the last on 2 August 2007, and alleged overflows of waste storage tanks adjacent to the milking shed.
[87] It was submitted that on service of the abatement notices the Crafars had two choices:
a) take the notices as saying that the building consents originally issued for the milking shed and effluent system were wrong and that the milking shed and effluent system had to be changed, a process that would take at least 12-18 months; or
b) stop milking the cows.
[88] The Crafars submitted that it was unreasonable to issue an abatement notice and then begin a prosecution within ―such a short time‖. It was also submitted that stopping milking of the cows would have left the Crafars liable to prosecution under ss 4 and 28 of the Animal Welfare Act, which makes it an offence to ill-treat animals. It was submitted that, in the circumstances, it would be unjust and unfair to maintain the convictions.
[89] Evidence was given in the District Court that two abatement notices were issued to Hillside Ltd and Messrs Allan and Frank Crafar in July 2007, a further abatement notice was issued to Hillside Ltd and the Crafars on 12 December 2007, and a fourth abatement notice was issued to Hillside Ltd and the Crafars on 1
February 2008.
[90] The only abatement notice which led to charges was that dated 1 February
2008. That notice directed the cessation of the unlawful discharge of contaminant, namely farm animal effluent, to land. The reasons for the notice, as set out in the Notice, included reference to various site inspections carried by Council officers since 9 July 2007.
[91] Evidence was given in the District Court that when the Council officer conducted a site inspection on 1 April 2008 to check compliance with the abatement notice issued on 1 February she found some improvements. In particular, a new concrete bund had been made around the sump area and sand trap. However, the concrete bund and sand trap were covered in effluent. While the effluent was not overflowing at the time, it appeared to be at its full capacity, and the Council officer was concerned that if there had been a heavy rainfall, there would have been an
overflow. The officer followed a hose leading from the concrete area through a shallow drain. She found green murky water in the base of the drain.
[92] The Judge found the charge of breaching the abatement notice proved. In so doing the Judge observed that there was an absence of any or adequate defence evidence to establish any available defence.[46]
[46] At [347] – [349].
[93] Mr Pilditch submitted that the Crafars‘ submissions on this point were misconceived. First, he submitted that Hillside Ltd and the Crafars had been given ample opportunity to comply with the abatement notices. They had not been prosecuted without having been given that opportunity. Secondly, he submitted that the Crafars had responsibilities under both the Act and the Animal Welfare Act. He pointed to the defence available under s 341(2)(a) of the Act which provides:
... it is a defence to prosecution [under s 15], if the defendant proves —
(a) that —
(i) the action or event to which the prosecution relates was necessary for the purposes of saving or protecting life or health, or preventing serious damage to property or avoiding an actual or likely adverse effect on the environment; and
(ii) the conduct of the defendant was reasonable in the circumstances; and
(iii) the effects of the action or event were adequately mitigated or remedied by the defendant after it occurred;
...
[94] Mr Pilditch submitted that if the matter of the Crafars‘ responsibilities under the Animal Welfare Act had been raised as a defence in the District Court they would have had to call or give evidence addressing the requirements of s 341(2)(a). The matter was not raised, and no such evidence was given.
[95] I accept Mr Pilditch‘s submissions. This ground of appeal cannot be sustained. It was not raised in the District Court and nothing has been put before this Court that would suggest that there was a defence available to the Crafars either on
the basis of a lack of opportunity to comply with the abatement notices, or in relation to the Animal Welfare Act.
[96] This ground of appeal cannot succeed.
Do the Crafars have a defence of “officially induced error”?
[97] In the written submissions presented at the appeal hearing the Crafars submitted that they could rely on ―the doctrine of officially induced error‖ as a defence to the charges alleging discharge of effluent into the unsealed holding pond.[47] The relevant offence dates were 11 October 2007 and 10 December 2007.
[47] See charges 891, 893, 897, and 898 in the Table at [14] above.
[98] The Crafars based this submission on the following:
a) Abatement notices were issued on 17 July 2007. One of the notices
(Numbered 1199990) required Hillside Ltd to:
(iv) ... immediately cease discharging effluent into the unsealed pond adjacent to the two concrete sealed sumps positioned adjacent the northern edge of the feed pad and dairy shed yards.
b) During a site inspection on 30 July 2007 the sharemilker was advised
by Council officers that the pond ―would be okay in the interim‖.
c) A letter sent by the Council to Hillside Ltd dated 2 August 2007 stated that:
... as a result of this site inspection please be advised the
Environment Waikato agrees that abatement Notice (Document No.
1199990) has been largely complied with.
... the unsealed pond has been drained. It has been agreed that this pond can remain in place. It is not to be used as storage capacity but can act as an emergency storage facility in the event that a problem is encountered. If such an emergency is encountered then Environment Waikato should be immediately notified.
[99] The Crafars submitted that the letter of 2 August 2007 provided permission, albeit limited, for the use of the pond to store effluent in an emergency. They also
submitted that a Council officer had agreed in the course of giving evidence that a breakdown in the pump, or a blockage in the pipe, may constitute an emergency breakdown or emergency situation, and that the Council officer had agreed in evidence that she had been told by the sharemilker during her site inspection on 11
October 2007 (when she observed effluent overflowing into the holding pond) that
there was a blockage he could not locate, and that that was an ―emergency situation‖.
[100] The Crafars referred to a further site inspection on 10 December 2007, after which a further abatement notice was issued, which required Hillside Ltd to cease:
1.The discharge of a contaminant, namely farm animal effluent, into the unsealed holding pond situated next to the dairy shed sumps.
2.The use of the unsealed holding pond as a farm animal effluent storage facility.
[101] The Crafars submitted that from 2 August 2007 to 12 December 2007 the Council had given permission for the holding pond to be used as an emergency storage facility, and that permission was revoked by the abatement notice issued on
12 December 2007. They submitted that it would be unjust for them to be convicted for discharging to the unsealed holding pond during the period when the Council had given written permission to use the pond as an emergency storage facility. Any discharges during that period, they submitted, resulted from an ―officially induced error‖.
[102] The written submissions referred to instances of New Zealand Courts considering a possible defence of ―officially induced error‖. Those authorities will be referred to later.
[103] In his supplementary written submissions Mr Pilditch submitted that the New
Zealand authorities do not establish the existence of a substantive defence of
―officially induced error‖ in New Zealand, and that such a defence could be incompatible with the scheme of statutory offences under the Act. He further submitted that even if there is such a defence, the Crafars could not avail themselves of it in this case.
[104] The New Zealand authorities have referred to the judgment of the Supreme Court of Canada in R v MacDougall.[48] In that case a driver‘s licence had been revoked following the dismissal of his appeal, but the driver had not yet received the revocation order when he was stopped while driving and asked to present his licence. He was charged with driving while disqualified. The trial Judge dismissed the charge and the dismissal was upheld by the Court of Appeal for Nova Scotia.
However, the Supreme Court of Canada allowed an appeal from the Court of
Appeal.
[48] R v MacDougall [1982] 2 SCR 605.
[105] The trial Judge accepted that the driver might reasonably have expected to have been told that his appeal had been dismissed (so that he would know that he was disqualified from driving). The Court of Appeal (in the words of Ritchie J, delivering the judgment of the Supreme Court) ―introduced a new concept in the law of mistake‖, finding that the facts found at trial had given rise to a defence of justification based on the driver‘s reliance on a previous course of conduct on the part of the relevant authorities, and that such a defence might be classified as officially induced error or perhaps a form of colour of right.
[106] The Supreme Court said:[49]
It is not difficult to envisage a situation in which an offence could be committed under mistake of law arising because of, and therefore induced by, ‗officially induced error‘, and if there was evidence in the present case to support such a situation existing it might well be an appropriate vehicle for applying the reasoning adopted by [the Court of Appeal]. In the present case, however, there is no evidence that the accused was misled by an error on the part of the Registrar. ...
[49] At 613.
[107] The Supreme Court also held that, in any event, the driver‘s mistake was one
of law, which did not afford him a defence.[50]
[50] At 612.
[108] A possible defence of ―officially induced error‖ has been discussed in New
Zealand, but neither the Crafars nor Mr Pilditch referred me to any case in which it has actually been applied.
[109] In Tipple v Police,[51] Holland J said:
[51] Tipple v Police (1993) 11 CRNZ 132 (HC) at 136.
In a case in New Zealand of ‗officially induced error‘ resulting in a person committing a crime believing it on that ground to be lawful I have little difficulty in finding that it is in the public interest as being just, that a person or a company should not be held liable for acting in accord with practices specifically approved by the police.
However, Holland J did not formally recognise the doctrine as applicable to New Zealand law, because discharge without conviction pursuant to s 19 of the Criminal Justice Act 1985 (as applied at that time) was an available option which achieved justice. Accordingly Holland J concluded:[52]
I do not consider that there is any need in this case to introduce into New
Zealand law any doctrine of officially induced error.
[52] At 138.
[110] In his judgment in R v Goldstone,[53] Williams J stated:
The status of this doctrine in New Zealand law is, to put it at its highest, uncertain.
[53] R v Goldstone HC Auckland T74/97 at 14.
[111] Heath J briefly considered the doctrine in his judgment in Sutherland v Department of Conservation.[54] Heath J declined to rule on the legality of the defence in New Zealand, and observed that if such a defence did exist, it did not apply in that case.
[54] Sutherland v Department of Conservation HC Auckland A121/02, 14 March 2003 at [27].
[112] In Macrae v Buller District Council,[55] Chisholm J discussed a claimed defence of officially induced error, in relation to a conviction for carrying out building work without obtaining a building consent. The appellant had alleged that the Council‘s inspector had encouraged or favoured the work to be done, without any explicit demand for consents to be obtained. Chisholm J referred to the judgment in Tipple v Police and on the basis of assuming (but without deciding) that officially induced error is capable of providing a defence in New Zealand, considered whether it could apply in the circumstances of the case before him. He concluded that it
could not.
[55] Macrae v Buller District Council HC Greymouth CRI-2005-418-1, 12 December 2005 at [39] – [41].
[113] In Diriye v Police,[56] Baragwanath J referred to ―officially induced error‖. He did not comment further on the topic, as justice could be done by a discharge under s 106 of the Sentencing Act 2002.
[56] Diryie v Police [2007] NZAR 717 (HC) at [17].
[114] In Wilson v Auckland City Council,[57] Venning J considered a submission as to ―officially induced error‖ in relation to a conviction under the Building Act 1991. The appellant had submitted that he started building work at his property without a resource consent because he believed he was entitled to do so, as the Council had allowed owners of properties within his neighbourhood to carry out building works without resource consent, and had not prosecuted them. Venning J cited the judgments in Tipple v Police and Diriye v Police and concluded:
[57] Wilson v Auckland City Council HC Auckland CRI-2006-404-126, 5 April 2007 at [30] –[34].
[34] For present purposes I am prepared to accept that there is an argument that the doctrine of officially induced error could apply in New Zealand. At the very least it could apply to support a discharge without conviction under s 106 of the Sentencing Act. There must, however, be a factual basis for the doctrine to apply.
His Honour held that there was no factual basis for the submission of ―officially induced error‖ in the case before him.
[115] Having reviewed the authorities referred to me, I accept Mr Pilditch‘s submission that the authorities do not establish the existence of a substantive defence of ―officially induced error‖ in New Zealand at this stage. At its highest, all that can be said is that ―officially induced error‖ may support an application for discharge without conviction under s 106 of the Sentencing Act 2002. This being an application made by a person who has either pleaded guilty to, or been found guilty of, a crime, both the legal and evidential burden would rest on the application to establish that a discharge should be granted.
[116] In any event, I also accept Mr Pilditch‘s submission that ―officially induced error‖ could not be used, in the present case, to support a discharge without conviction under s 106. This is because the limited circumstances as to which
permission was given for the holding pond to be used, as set out in the Council‘s
letter of 2 August 2007, were not complied with. The letter is clear on its face that the pond was ―not to be used as a storage capacity‖ and went on to say that the pond could ―act as an emergency storage facility‖ if:
a) a problem was encountered; and
b)if such an emergency was encountered, the Council was to be immediately notified.
[117] I accept Mr Pilditch‘s submission that there is no evidence, at all, that the condition that the Council be immediately notified was complied with. That, in and of itself, is sufficient to defeat any reliance (if such is available) on ―officially induced error‖.
[118] I also accept Mr Pilditch‘s submission that there is no evidence to suggest that the discharge on 10 December 2007 was in any way an ―emergency‖, or that it was reported to the Council immediately. Accordingly, as neither of the express conditions of the letter of 2 August 2007 had been complied with, the Crafars cannot sustain a defence of ―officially induced error‖ (again, if such is available).
[119] The Crafars cannot succeed on this ground of appeal.
Conclusion: appeals against conviction
[120] I have found that the Crafars cannot succeed on any of the grounds of their appeals against conviction. Accordingly, the appeals against conviction are dismissed.
Appeal against sentence
[121] Mr Allan Crafar submitted that he and Mr Frank Crafar had effectively been fined $2,950 on each of the ten charges on which they were convicted. They were fined $29,500 on a global basis. He submitted that Mrs Elizabeth Crafar had effectively been fined $350 on each of the four charges on which she was convicted (she was fined $1,500 on a global basis). Mr Crafar submitted that, in particular
with respect to the fines imposed on himself and Mr Frank Crafar, the fines were manifestly excessive.
[122] Mr Crafar also submitted that he understood that there was an appeal before the Court of Appeal in which it was being submitted that there is a jurisdictional limit in that an individual cannot be fined more than $750 on a charge laid under the Act. He was not able to give any further detail.
[123] Mr Pilditch submitted that the fines were not manifestly excessive. He submitted that it must be borne in mind that the Crafars were convicted on charges laid under s 338(1) of the Act. Section 339(1) provided (at the time of the offending) that on conviction on a charge under s 338(1) the Crafars were liable to imprisonment for up to two years or a fine of up to $200,000, on each charge.
[124] Mr Pilditch submitted that the total fines imposed against each of Hillside Ltd and the Crafars ($90,000) was less than half of the fine that could have been imposed on one of them, individually, on each charge on which they were convicted. He submitted that the fines imposed were well within the range set out in Waikato
Regional Council v B G Chick Ltd.[58]
[58] Waikato Regional Council v B G Chick Ltd (2007) 14 ELRNZ 291 (DC).
[125] Mr Pilditch also submitted that the offending by Messrs Allan and Frank
Crafar was in the upper range of level 2 (―moderately serious‖) of which a fine of
$15,000 to $30,000 is appropriate for each charge, or at level 3 (―more than moderately serious‖) for which a fine of more than $30,000 is appropriate. He also submitted that there were aggravating factors present, in particular the convictions against other farms in the ―Crafarms‖ group.[59]
[59] See fn 15.
[126] I am not satisfied that the fines imposed by the Judge were manifestly excessive, or not within the range described in Waikato Regional Council v B G Chick Ltd. The individual fines effectively imposed on each of Messrs Allan and Frank Crafar for each charge ($2,950) can only be described as being at the lowest end for ―level 1‖ offending. They can in no way be described as manifestly
excessive. If Hillside Ltd and Messrs Allan and Frank Crafar are considered as a
―single entity‖ (which of course they are not) then the fine effectively imposed for each of the ten charges ($8,850) is still only just above half that suggested for level 2 offending. If all of the charges on which each of Messrs Allan and Frank Crafar are considered as a ―single charge‖ (which, again, they are not) then the fine imposed on each of Messrs Allan and Frank Crafar is within the fine identified as appropriate for
―level 2/level 3‖ offending. However the fines are regarded, they cannot be regarded
as manifestly excessive or outside the permissible range.
[127] Mr Pilditch was able to shed some light on Mr Allan Crafar‘s reference to a hearing in the Court of Appeal. He advised that an appeal is to be heard at the end of this month, in relation to the commencement of prosecutions by way of Information and Infringement Notice. I accept Mr Pilditch‘s submission that I should approach this appeal on the basis of what is before the Court today. The possible outcome of a matter yet to be heard before the Court of Appeal is not relevant to my consideration. I am satisfied that the Judge had jurisdiction to impose the fines he imposed.
[128] I have concluded that the Crafars cannot succeed on their appeal against sentence.
Result
[129] Leave to appeal is given. The appeals by Mr Allan Crafar, Mr Frank Crafar, and Mrs Elizabeth Crafar against conviction and sentence are all dismissed.
Andrews J
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