Eden Road Farm Limited v Tasman District Council
[2014] NZHC 108
•11 February 2014
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
CRI-2013-442-20 [2014] NZHC 108
BETWEEN EDEN ROAD FARM LIMITED Appellant
ANDTASMAN DISTRICT COUNCIL Respondent
Hearing: 4 February 2014
Counsel: G M Downing and G C Englebrecht for Appellant
A C Besier for Respondent
Judgment: 11 February 2014
JUDGMENT OF GODDARD J
This judgment was delivered by me on 11 February 2014 at 12.00 pm, pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
McFadden McMeeken Phillips, Nelson for Appellant
Fletcher Vautier Moore, Richmond for Respondent
EDEN ROAD FARM LIMITED v TASMAN DISTRICT COUNCIL [2014] NZHC 108 [11 February 2014]
Introduction
[1] This is an appeal against sentence. The appellant, Eden Road Farm Limited (Eden Road), pleaded guilty to two charges of unlawfully taking water from two bores located on its property pursuant to s 14(2) of the Resource Management Act
1991 (the Act) by taking water in a manner not allowed by s 14(3) of the Act. The maximum penalty in respect of each charge is a fine not exceeding $600,000.
[2] Judge Harland fined Eden Road $20,000 in relation to the first bore and
$9,100 in relation to the second.
[3] The crux of the appeal is whether the Judge placed significant weight on an incorrect fact, resulting in a manifestly excessive sentence.
Facts
[4] Eden Road grows a mixture of apples and boysenberries. Its contribution to both local and international markets is significant. The property on which the offending occurred is located close to the Wairoa River and close to the Wai-iti confluence where the Wairoa River becomes the Waimea River. The Waimea River is an important river in the Tasman District and the Wairoa River is its most significant tributary.
[5] Eden Road has resource consent to extract the water it uses for irrigation from bores on its property. The resource consent conditions require it to install approved water meters and supply water meter readings to the Council at regular intervals. The Council audits these water meter readings by checking the actual readings on the bores’ meters against the figures supplied to it by Eden Road. The resource consent conditions also require Eden Road to reduce its water take upon notification that rationing measures have been implemented.
[6] The offending occurred between 11 and 18 March 2013 during drought conditions that had resulted in such water rationing measures being introduced. An audit by the Council revealed that the water meter readings filed by Eden Road in
relation to two of its bores were inaccurate. Eden Road had in fact exceeded the maximum water take in relation to each of those bores.
Environment Court decision
[7] Judge Harland began by summarising the applicable legal principles and the relevant background. The Judge then assessed the nature of the environment affected, highlighting the importance of the Waimea and Wairoa Rivers and associated aquifers as a physical resource, before assessing the actual effect on the physical environment as being at the “lower end of the scale”.1 Her Honour also found the potential effect on the social environment to be ‘moderate’, based on her assessment that the offending had the potential to undermine the efficacy of water rationing measures.
[8] The Judge assessed Eden Road’s culpability as moderately high and adopted a single starting point of $40,000, emphasising in particular the need for specific and general deterrence in relation to this type of offending. A 3% credit was allowed for remorse and a 25% discount for pleading guilty at the earliest opportunity. The Judge declined to allow any discount for previous good character due to the number of warnings and opportunities it was said Eden Road had been given about improving its practices. The end result was a fine of $29,100.
The appeal
[9] The basis of the appeal is that an error was made in respect of Eden Road’s history of compliance and also therefore its level of culpability and the degree of its sense of social responsibility. Eden Road’s history of compliance had not been referred to in the agreed summary of facts to which the company had pleaded guilty. The prosecutor, however, made reference to an alleged history of warnings and non-compliance in her written and oral submissions to the Court at sentencing.
[10] In her written submissions to the Court, filed after the guilty pleas had been entered to the summary of facts, the prosecutor included statements that Eden Road
1 Tasman District Council v Eden Road Farm Ltd DC Nelson CRN-1304-2500-484, 15 November
2013 at [38].
had been warned on previous occasions and had been issued with an Infringement Notice and its Director had been warned on “many occasions”. The paragraph in question, which was not challenged by Eden Road’s counsel at the sentencing hearing and should have been, is as follows.
26.2 The company has been warned on previous occasions that it was taking water at a level that was not authorised by its consents. In particular, the company was issued with an infringement notice with respect to taking water in excess of the levels authorised under consent NN000487 for the week ending 3 December 2012. In addition, the director of the company responsible for the day to day management of the farm has been warned by Council Compliance Officers on many occasions about water take levels exceeding the amount authorised.
[11] During her oral submissions at the sentencing hearing, the prosecutor then quantified instances of prior non-compliance by informing the Court that the Council had observed “excessive water use” on 17 prior occasions, and that the Council had issued four warnings to Eden Road. Eden Road’s counsel did not challenge this quantification of alleged prior non-compliance. During sentencing, Judge Harland erroneously translated the prosecutor’s submission about Eden Road having used excessive water on 17 occasions into Eden Road having received 17 “warnings” from the Council regarding excessive water use, which it had ignored. The prosecutor accepts that a lack of clarity in her oral submissions was likely to have lead to this error by the Judge in elevating 17 occasions of excess water taking into
17 warnings. The error is evident in paragraph [39] of the sentencing notes, as follows:
[39] I was advised by the informant during the sentencing hearing that the company has received an Infringement Notice for exceeding its water take in the past in relation to one of its consents, and I was advised that the company had been warned on no fewer than seventeen (17) occasions of the need not to exceed its resource consents. This is important background and was not challenged by the company in its further written submissions.
[12] After the decision was released, the prosecutor filed a memorandum addressing her error and apologising for any confusion caused by her submissions at sentencing.
[13] Counsel’s argument on appeal is that Judge Harland was wrong to take into account the prosecutor’s reference to Eden Road’s prior record at all because it was
not part of the summary of facts to which the guilty pleas were entered (this notwithstanding no objection was taken to this by counsel at the sentencing). Further, that the Judge placed significant weight on this incorrect and aggravating feature of non-compliance and that this resulted in a manifestly excessive sentence. In particular, it was submitted that the error attracted an inappropriately high starting point with no discount for previous good character. Counsel also argued that an inadequate discount was given for remorse.
[14] The appeal was essentially advanced on three bases:
(a) whether Judge Harland erred in taking into account factual matters not included in the agreed summary of facts;
(b) whether the factual error as to Eden Road’s compliance history
resulted in a manifestly excessive sentence; and
(c) whether inadequate credit given for remorse.
Did Judge Harland err in taking into account factual matters not included in the agreed summary of facts?
[15] Mr Engelbrecht for Eden Road correctly submitted that on a plea of guilty, unless evidence is called, the summary of facts should form the sole basis on which the sentencing Judge should assess the gravity of the offending. Additional evidence should not be introduced into prosecuting counsel’s submissions unless the inclusion is in response to a challenge by the defence to the content of the summary of facts. The matter is then to be properly resolved at a disputed facts hearing.
[16] Mr Engelbrecht referred to the decision of the Court of Appeal in R v Grant, which held that unprovoked additions to the summary of facts are inappropriate because:2
The risk is that counsel for the prisoner is potentially faced with two versions, being the summary (upon the basis of which the plea was entered) and additional material subsequently selected by the prosecutor from witness statements.
2 R v Grant CA240/02 at [26].
[17] I have little doubt that the aggravating matter of an apparently contemptuous course of conduct is rightly to be regarded as a material sentencing factor and was so regarded by the Judge in this case. The additional information gratuitously submitted by the prosecutor in her written sentencing submissions and then amplified in her oral submissions came from a draft brief of evidence prepared by a Council compliance officer. That draft brief of evidence had formed part of disclosure to Eden Road’s counsel but did not become part of the agreed summary of facts. It should therefore not have formed part of the factual matrix for sentencing and should have been objected to by Eden Road’s counsel.
[18] As I understood Ms Besier’s submissions on appeal before me, the prosecution has, since sentencing, completely resiled from any reference to previous warnings. The situation is that while there had been warnings, there is no evidence that these amounted to four warnings, let alone 17 warnings. Nor does the prosecution seek to rely on any contention that there were even 17 prior occasions of excessive water use. The statement of facts as agreed and pleaded to therefore stands as the only proper basis on which sentencing can proceed.
[19] Once again, criticism must also be levelled at counsel for Eden Road for not adopting a firm and clear stance on this matter at sentencing. The explanation for not doing so, which was repeated at the appeal hearing before me, was a concern that such a challenge would result in the matter being referred to a disputed fact hearing with the result that Eden Road might risk losing a full discount for its early guilty pleas. I expressed the view that it is highly unlikely such a risk would have manifested to Eden Road detriment. Either the facts put forward to the Court were presented in the form as had been accepted by the defence or they should have been challenged whilst preserving the defendant’s position. There is no reason why deficiencies in counsel’s presentation of a case should adversely affect the credit to be accorded a defendant’s stated willingness to plead guilty at an early stage. I do not believe that is an outcome that should be visited on Eden Road in this case.
[20] No criticism can fairly be levelled at Judge Harland’s approach to sentencing, which was clearly both careful and assiduous. It is evident from material before the Court that the Judge gave every opportunity to Eden Road’s counsel to present Eden
Road’s case in as much detail as it wished. The Judge was apparently concerned to understand just why this offending had occurred during drought conditions, including in relation to such matters as the supervision and training of staff in relation to the accuracy of water meter reading. The sentencing was adjourned to allow counsel to prepare submissions to address an appropriate starting point for the sentence. Both counsel for the Council and counsel for Eden Road had nominated a
$20,000 starting point. In this regard, Eden Road considered its case to be analogous to that in Cambria Farms. Further submissions were permitted and were filed by counsel addressing matters related to remorse and aggravating and mitigating factors such as deliberateness of offending. The sentencing decision was reserved to allow full consideration of all of this.
Did the factual error result in a manifestly excessive sentence?
[21] In my view, the answer to this question cannot simply be determined by an appellate court on a reassessment of the facts as now acknowledged to be correct. Whether the fine ultimately imposed is manifestly excessive, having regard to all of the circumstances pleaded to in the summary of facts, is a matter for the sentencing Judge to re-determine. I am not prepared to substitute my view for that of a specialist Judge by second-guessing what influence the extraneous information had on her assessment of, for example, the appellant’s culpability as being moderately high. There seems little doubt that the Judge’s view of this and her emphasis on the need for specific and general deterrence was influenced by Eden Road’s apparent flagrant disregard for water restrictions in a time of extreme drought, indicative of a contempt for lawful directions from a local authority.
[22] That aspect and whether inadequate credit was given for remorse and for remedial measures being undertaken are properly to be raised anew before Judge Harland on a re-sentencing.
Conclusion
[23] The appeal is allowed. The sentence is vacated and the matter is referred back to the District Court for re-sentence on a date to be set by the Registrar.
Goddard J
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