Gifford v Marlborough District Council
[2023] NZHC 3141
•9 November 2023
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE
CRI-2023-406-03/4/5/6
[2023] NZHC 3141
UNDER the Criminal Procedure Act 2011 IN THE MATTER OF
an appeal against sentence under the Act
BETWEEN
MICHAEL HOWARD GIFFORD
First Appellant
AND
CRB TRANSPORT LIMITED
Second Appellant
AND
MARLBOROUGH DISTRICT COUNCIL
Respondent
Hearing: 19 July 2023 Appearances:
D J Clark for the Appellants
A C Besier for the Respondent J M Webber for the Crown
Judgment:
9 November 2023
JUDGMENT OF PALMER J
Solicitors
Wisheart Macnab & Partners, Blenheim Tasman Law Limited, Nelson O’Donoghue Webber, Nelson
GIFFORD v MARLBOROUGH DISTRICT COUNCIL [2023] NZHC 3141 [9 November 2023]
The offending
[1] Mr Michael Gifford is the director and sole shareholder in CRB Transport Ltd (CRB). Mr Gifford pleaded guilty to eight offences,1 and CRB pleaded guilty to one offence, under the Resource Management Act 1991 (RMA).2 There were four separate sets of offending between 2016 and 2021 in relation to two farm properties near Blenheim — the “Redwood Pass” property and the “16 Valley” property. Broadly, as described further below, the offending involved pollution, including breaching enforcement orders concerning the pollution. Each offence committed by Mr Gifford is punishable by up to two years’ imprisonment or a fine of up to $300,000 and the offence committed by CRB is punishable by a fine of up to $600,000.3 Mr Gifford was sentenced to fines totalling $133,575 and CRB to a fine of $10,365.4 Mr Gifford and CRB appeal their sentences.
The sentencing
General approach to sentencing
[2] On 10 November 2022, Judge J J M Hassan sentenced Mr Gifford and CRB in the District Court at Blenheim. The Judge stated that, in pollution offending, the purposes of sentencing can encompass “imposing penalties that cause a polluter to internalise the environmental costs and foster environmentally responsible corporate citizenship”.5 The Judge stated that these matters are usefully tested by reference to: the nature and sensitivity of the environment; the environmental harm inflicted; and the offender’s culpability and attitude.6 He considered respect for the rule of law is also relevant to breach of enforcement orders. Deliberate or flagrant disregard of a court order should not be viewed lightly. The purpose of the enforcement order, and the aspects of the order that were breached, are important in assessing culpability.7
1 Resource Management Act 1991, ss 15(1)(b), 9(2), 338(1)(a) and 338(1)(b).
2 Section 338(1)(b).
3 Section 339(1).
4 Marlborough District Council v Gifford [2022] NZDC 22061 [Judgment on Appeal] at [140].
5 At [8] citing Thurston v Manawatu-Wanganui Regional Council HC Palmerston North CRI-2009- 454-24, 27 August 2010 at [44].
6 At [9] citing Machinery Movers Ltd v Auckland Regional Council [1994] 1 NZLR 492 (HC); and
Thurston, above n 5, at [40].
7 At [10] citing Christchurch City Council v Owaka Holdings Ltd DC Christchurch, CRI-2012-009- 5597, 27 May 2013 at [32]–[35]; and Bay of Plenty Regional Council v Merrie [2018] NZDC 1621 at [43].
The Judge then made findings about the environmental impact of each set of offending, assessed culpability, and set starting points.
2016 grape marc discharge in Redwood Pass
[3] In 2016, at the Redwood Pass property, Mr Gifford committed three offences of discharging grape marc, a winery waste contaminant, and grape marc leachate, onto land in circumstances which may result in it entering water. He created two large stacks of grape marc. One was for compost (on the compost pad) and one was for stock feed (on the stock feed pad). They were constructed on a clay base surface without a resource consent and without a leachate collection system. On 21 June 2016, following complaints and a visit to the property, officers of the Marlborough District Council (the Council) observed the nearby Pukapuka and 17 Valley streams were in a very degraded state, a complainant’s tap water was orange, and there was distinct deterioration downstream of the observed sites (compared to upstream). Tests of the Pukupuka Stream, the complainant’s property, and Mr Gifford’s property were undertaken between June and July 2016. On 3 August 2016, on the basis of the results, Council scientists concluded that the leachate from the grape marc pads were entering the Pukapuka Stream and affecting the drinking water of the complainant’s property. On 9 August 2016, an abatement notice was issued to Mr Gifford.
[4] The three offences related to discharge from the compost pad into the Pukupuka Stream, from the stock feed pad into groundwater, and from the stock feed pad into the Pukupuka Stream. In sentencing Mr Gifford, the Judge concluded that the 2016 offending had caused direct ecological harm to the Pukupuka Stream and some risk, but no actual harm, to the ecologically and culturally important Wairau Lagoons.8 He assessed the Mr Gifford’s offending as moderately careless, resulting from the poor positioning, substandard design, and haphazard management of the compost and stock feed pads, well short of the duty to avoid, remedy, or mitigate the adverse effects of these activities.9 He considered the offending was of a materially lesser scale, but involved comparatively more serious environmental harm and culpability, than the grape marc offending in Sowman.10 But, the culpability was
8 At [37].
9 At [45] citing Resource Management Act, s 17.
10 At [112] citing Marlborough District Council v Sowman [2019] NZDC 25036.
greater than that in Yealands.11 The Judge explicitly accounted for the fact that comparatively less was known about the significant ecological risks associated with grape marc composting in 2016.12 The Judge set the starting point for all three offences at $35,000.13 The compost pad discharge was $15,000 and the two stock feed pad discharges were $10,000 each.14
2018 offending in Redwood Pass
[5] In 2018, at the Redwood Pass property, Mr Gifford committed a further offence of discharging grape marc leachate in a significantly larger commercial facility. He also committed two offences of contravening a regional rule. He had a resource consent for a clean fill operation and was progressing a resource consent application to operate a commercial composting facility. During a compliance inspection on 1 November 2017, Council officers noticed a number of breaches of the resource consent, including the filling in of land in close proximity to Pukapuka Stream with non-compliant materials, and the failure to install erosion and sediment controls. They observed grape marc and composting materials being stored and leachate, from a constructed leachate pond that had failed, running to the Pukapuka Stream. This contravened the resource consent Mr Gifford was progressing. An employee stated that tyres, posts, and other materials were being buried in the clean fill area.
[6] On further inspection on 6 November 2017, excavation revealed timber posts, tyres, metal, plastic, and a chemical drum. Sampling revealed the concentration of arsenic breached clean fill guidelines. On 14 November 2017, following a complaint, Council officers observed a mechanical pump had been set up to pump the leachate out of the leachate pond towards the Pukapuka Stream. On 30 January 2018, following a complaint, Council officers discovered that erosion-prone land on hilly slopes had been excavated to build tracks, in breach of regional and district rules. An abatement notice was issued.
11 At [112] citing R v Yealands [2018] NZDC 4115.
12 At [112].
13 At [113].
14 At [114].
[7]The Judge concluded:
(a)The leachate pumping offending caused relatively minor and short-term environmental harm through soil contamination.15 It was committed with a high degree of carelessness in mismanagement, but not reckless offending.16 The evidence did not suggest it was deliberate but done by an employee, Mr Clifford, of his own volition.17 The closest case for comparison was Broadbridge, where the adverse effects were materially more but Mr Gifford’s culpability was somewhat higher.18 This justified a starting point of $25,000.19
(b)The burial offending caused moderately serious soil contamination in a confined area of the Redwood property and presented an associated small risk to human health.20 Again, the Judge gave Mr Gifford the benefit of the doubt as to whether Mr Clifford buried the material without Mr Gifford’s instruction or knowledge.21 But, as the clean fill consent holder, he held Mr Gifford was highly careless in the offending.22 The offending was materially less serious than the case of Cooper and significantly less than in Collins, justifying a starting point of $30,000.23
(c)The excavation offending caused a minor loss of ground cover and an associated risk to water bodies but no actual harm.24 The Judge gave Mr Gifford the benefit of the doubt as to whether he told a contractor to get the necessary consents.25 But he did not accept this relieved Mr Gifford of a finding of a carelessness. A prudent landowner would
15 At [38].
16 At [48].
17 At [47].
18 At [116] citing Marlborough District Council v Broadbridge Transport Ltd [2021] NZDC 9740.
19 At [117].
20 At [43].
21 At [51].
22 At [51].
23 At [120]–[121] citing Canterbury Regional Council v Cooper DC Christchurch CRI-2013-009- 9509, 29 July 2014; and Horizons Regional Council v Collins DC Whanganui CRI-2009-083-3002, 30 April 2010.
24 At [41].
25 At [54].
have arranged proper inspection of the works and he failed to do so. The Judge held the offence was committed with a very high degree of carelessness bordering on recklessness.26 The arrangement for the consultant saved Mr Gifford from a finding of recklessness. A starting point of $20,000 was justified due to the low level of harm and relatively lower culpability.27
2018 grape marc discharge in 16 Valley
[8] In 2018, at the 16 Valley property, Mr Gifford committed a further offence of discharging grape marc. He arranged for large quantities of grape marc to be stored on the property while it was composting. On 15 February 2018, following a complaint, Council officers observed a series of channels leading from the grape marc mound into the Riverland’s Co-op drain, which drains to the Wairau Lagoons.28 On 23 February 2018, Mr Gifford was served with an abatement notice to remove the grape marc from the property. Subsequent testing showed the grape marc leachate was getting into the soil and then flowing into groundwater.
[9] The Judge concluded that the offending caused moderately serious harm to the ecology of the Co-op drain and to the ecology and values of the lagoons for approximately three months and unquantifiable but temporary and minor harm to soils.29 Mr Gifford was found to be derelict in his approach to the design and management of the composting arrangements.30 The offending was materially more culpable than that in 2016, from which Mr Gifford should have learned, and was committed recklessly rather than merely carelessly.31 That made the offending more serious than Yealands. But the Judge found it was significantly less serious than in Sowman in terms of scale, and materially less than the 2016 discharge offending in terms of scale.32 This justified a starting point of $30,000.33
26 At [55].
27 At [122].
28 At [56]–[57].
29 At [59].
30 At [62].
31 At [63].
32 At [118] citing R v Yealands, above n 11; and Marlborough District Council v Sowman, above n 10.
33 At [119].
2021 Breach of enforcement orders
[10] On 17 January 2020, the Environment Court issued enforcement orders, which it reissued with amendments on 2 September 2020 and 26 November 2020.34 In 2021, each appellant contravened, or permitted the contravention of, an enforcement order. Mr Gifford and CRB did not comply with their requirements relating to investigating, managing, and remedying buried organic waste.
[11] The Judge concluded, as the Council acknowledged, that there are no environmental effects directly attributable to the breaches of enforcement orders.35 But the breaches stymied timely understanding of potential environmental risks and left aspects of the environment exposed to potential harm for some three years.36 Mr Gifford and CRB demonstrated a high disrespect for the rule of law and were highly culpable for this offending.37 The offending was materially less serious than in the comparable case of Annexure Services.38 But, as a material failure to comply with a significant aspect of an agreed order, the culpability was more serious than in the comparable cases of Merrie and Dunlop.39 The mitigating factors of the offending were that the environmental harm aspects were minor and that CRB and Mr Gifford complied with other aspects of the enforcement order.40 Bearing in mind Mr Gifford’s relationship with CRB, being a sole director and shareholder, he set a starting point of
$25,000, allocated equally between CRB and Mr Gifford.41
Adjustments
[12] Because of the complexity of the sentencing, the Judge considered totality at that point, concluding the starting points reflected the overall criminality of each offender. 42
34 At [64].
35 At [74].
36 At [78].
37 At [85].
38 At [123] citing Canterbury Regional Council v Annexure Services Ltd [2020] NZDC 26486.
39 At [123] citing Bay of Plenty Regional Council v Merrie, above n 7, at [43]; and Tasman District Council v Dunlop [2022] NZDC 8178.
40 At [123].
41 At [124].
42 At [13] and [126].
[13]In making adjustments, the Judge:
(a)did not consider any aggravating factors justified an uplift;43
(b)made discounts for the guilty pleas of 10 per cent for the 2021 offending and five per cent for the 2016 and 2018 offending;44 and
(c)awarded a seven per cent discount to the sentences for all charges for previous good character and the offenders’ clean RMA conviction record.45
Totality
[14] The resulting end sentence was a $133,575 fine for Mr Gifford and a $10,365 fine for CRB.46 In considering totality again at the end of the sentencing, the Judge noted the end sentences were in the middle of the two starkly different sentencing submissions from counsel for the prosecutors and counsel for the defendants.47 He was satisfied the sentences reflected the principles and purposes of the Sentencing Act 2002 and the RMA and accordingly no further adjustments on totality grounds were needed.48 He held that CRB and Mr Gifford were both in a financial position to pay the fines and awarded costs against them.49
Should the sentence be overturned?
[15] Mr Gifford and CRB appeal their sentences. The Crown, which prosecuted the 2016 Redwood Pass offending, and the Council, which prosecuted the rest of the offending, oppose the appeal.
[16] This is a sentence appeal under s 250 of the Criminal Procedure Act 2011. Accordingly, I must allow the appeal if I am satisfied that there is an error in the
43 At [127].
44 At [133].
45 At [138].
46 At [140].
47 At [141].
48 At [142].
49 At [143] and [147].
sentence for any reason and a different sentence should be imposed instead. Otherwise, I must dismiss the appeal. The Court will only intervene, and substitute its own view on appeal, if the sentence is manifestly excessive.50 The focus is on whether the end sentence is within the available range.51
1Starting point for the 2016 and 2018 grape marc offending
[17] Mr Clark, for Mr Gifford, submits the starting points for the grape marc offending in 2016 and 2018 did not give Mr Gifford the substantial reduction that other defendants have received to recognise the evolving nature of the problem of managing grape marc.52 There is now greater knowledge and defendants should no longer expect leniency, but comparable sentencing decisions referred to in the decision under appeal had not been given at the time of Mr Gifford’s offending.
[18] Mr Webber, for the Crown, acknowledges that the effect of grape marc in mobilising heavy metals from the soil into the groundwater was not well known before the case of Marlborough District Council v Sowman in 2018.53 But he submits that the toxic nature of grape marc leachate, and the high biological oxygen demand it causes, had been understood for a long time. It was reflected in the limits for high biological oxygen demand in the Wairau Awatere Resource Management Plan (the Wairau Plan) and was the entire point of compacted clay grape marc pads being constructed. In any event, the Judge did recognise the evolving nature of the problem in the sentencing. Ms Besier, for the Council, adds that Mr Gifford certainly knew the impact of the leachate in 2018, considering the events of 2016.
[19] I do not consider the Judge erred in setting the starting point for the grape marc offending. He clearly took into account the evolving nature of the problem. The Judge held that Mr Gifford’s culpability was higher in 2018 due to the events in 2016, which was reflected in the comparative starting points — three charges in 2016 attracting a
$35,000 starting point and one charge in 2018 attracting a $30,000 starting point.
50 Ripia v R [2011] NZCA 101 at [15].
51 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32]–[36].
52 R v Yealands, above n 11; Marlborough District Council v Sowman, above n 10; Marlborough District Council v Broadbridge Transport Ltd, above n 18; and R v Growco Ltd [2023] NZDC 5037.
53 Marlborough District Council v Sowman, above n 10.
Regardless, the evidence shows that Mr Gifford knew grape marc leachate was a problem in 2016. Rule 30.1.8.10 of the Wairau Plan regulated the discharge of solid waste from the processing of fruit products from 2009. Further, r 3.1.34 of the Proposed Marlborough Environment Plan, notified in June 2016, proposed regulations for composting agricultural solid waste. The regulations show the risk, especially to soil and water, caused by discharge or leachate from solid agricultural waste, like grapes, was a recognised issue. It is not sustainable to portray the environmental impacts of grape marc leachate as “new” in 2018, the year of the sentence in Sowman.
[20] I do not consider the cases referred to by Mr Clark justify a lower starting point. Although the end penalty in Yealands is significantly lower due to the number of discounts, making the case somewhat of an outlier, the starting point of $15,000 for one representative charge of grape marc offending is comparable to the starting points Mr Gifford received for his 2016 offending.54 Furthermore, the $45,000 starting point for Babich Wines’ grape marc offending in Sowman,55 and the starting point of
$38,000 for grape marc offending in Broadbridge,56 are higher than the starting points Mr Gifford received for his 2016 and 2018 offending. I also agree with Mr Webber that Growco is not a useful comparator case because there was no contamination on those facts.57 The starting point was, therefore, in range. This ground of appeal fails.
2Starting point for the 2018 burying and leachate offending
[21] Mr Clark submits the starting point for the burying and the pumping offending in 2018 did not sufficiently take into account the role of a recalcitrant employee, Mr Clifford, in deliberately undertaking activities he knew to be in breach of the RMA, because of bad blood between them. Mr Gifford was unsuccessful in attempting to set aside his guilty pleas in relation to these two charges, but this must be a material matter in sentencing.
[22] As Ms Besier submits, the Judge explicitly gave Mr Gifford the benefit of the doubt about the role of Mr Clifford.58 The Judge noted that the Summary of Facts, on
54 R v Yealands, above n 11, at [88].
55 Marlborough District Council v Sowman, above n 10, at [102].
56 Marlborough District Council v Broadbridge Transport Ltd, above n 18, at [31].
57 R v Growco Ltd, above n 52, at [62]–[64].
58 Judgment on Appeal, above n 4, at [47].
the basis of which Mr Gifford pleaded guilty, did not disclose whether Mr Gifford knew of Mr Clifford’s actions at the time.59 The Judge considered he had no reasonable basis to accept Mr Gifford’s version of what occurred. But, on the basis of the Summary of Facts, he went as far as finding it was reasonable to infer that the material was buried and the leachate was pumped without Mr Gifford’s knowledge at the time.60 He found Mr Clifford’s actions reflected on Mr Gifford who was responsible for the management of the facility and was the consent-holder.61
[23] There was some suggestion at the hearing about the relevance of evidence in the application to vacate the guilty plea. I do not consider this makes any material difference to the issues before me.
[24] The Judge’s starting point for the leachate pumping was based on Mr Gifford’s culpability involving a high degree of carelessness, as the person responsible for the management of the facility.62 In relation to the burying of material, the Judge noted that because Mr Gifford was the consent holder and knew the buried material was stored near the clean fill site, so he should have been more prudent.63
[25] If Mr Gifford had wanted to dispute the Summary of Facts he could have applied for a disputed facts hearing. This had been identified before the sentencing, but Mr Gifford’s counsel submitted the disputed fact would not make a material difference. He cannot have it both ways. Furthermore, the case law supports the weight of responsibility being placed more on employers and managers than employees.64 This reinforces their incentives to direct employees lawfully. This ground of appeal fails.
3Starting point for the 2018 excavating offending
[26] Mr Clark submits the starting point for the excavating offending in 2018 did not sufficiently take into account that Mr Gifford engaged a consultant who did not
59 At [21]
60 At [47] and [51].
61 At [48] and [51].
62 At [48].
63 At [51].
64 Bay of Plenty Regional Council v Rerewhakaaitu Farm Ltd [2021] NZDC 4217; and R v Le Poulet Fabulex Ltd [2018] NZDC 15697 at [26] and [30].
advise him a resource consent was needed. His culpability should be assessed as careless, not a high degree of carelessness bordering on reckless.
[27] However, as Ms Besier points out, the Judge again explicitly gave Mr Gifford the benefit of the doubt about this issue, finding that hiring the consultant was not enough to relieve Mr Gifford of carelessness.65 Reliance on a third party does not necessarily excuse a property owner from at least inspecting that everything was in order.66 That is particularly so in this erosion-prone area where the environmental risks of unconsented high scale earthworks are obvious. This ground of appeal fails.
4Starting point for the enforcement order offending
[28] Mr Clark submits the starting point for the enforcement order offending did not take into account that Mr Gifford was the sole director and shareholder of CRB. On the basis of Hardegger v Southland Regional Council, the Judge should have imposed a single sentence and the company should have been liable for a third of it.67
[29] As Ms Besier submits, the sentence did take into account the relationship between Mr Gifford and CRB. The Judge explicitly stated that CRB was effectively Mr Gifford’s corporate alter ego and approached sentencing on the same basis as Hardegger.68 That is no doubt why the starting point of $25,000 was split equally between them. A number of authorities have recognised that breach of enforcement orders under the RMA are serious offences.69 The starting point here was within the range available to the Judge having regard to comparable cases.70
[30] Mr Clark also submits the sentencing does not take into account a variety of aspects of how the enforcement order, which was in the nature of an investigation and which was the subject of an agreement, came to be breached. Ms Besier submits these
65 Judgment on Appeal, above n 4, at [54].
66 Heritage New Zealand Pouhere Taonga v Dayniel Ltd [2022] NZDC 25516 at [35].
67 Hardegger v Southland Regional Council [2017] NZHC 469.
68 Judgment on Appeal, above n 4, at [90].
69 Marlborough District Council v Woolley [2015] NZDC 16110 at [39]; and Christchurch City Council v Owaka Holdings Ltd, above n 7, at [32]–[35] citing Marlborough District Council v Awarua Farm Marlborough Ltd DC Blenheim CRI-2008-006-765, 18 December 2008.
70 See for example: Marlborough District Council v Woolley, above n 69, at [46]; and Bay of Plenty Regional Council v Merrie, above n 7, at [86] and [107].
are essentially just matters with which the appellants are unhappy. I deal with them in turn.
[31] First, Mr Clarke submits the Environment Court did not have jurisdiction to make an “investigation” enforcement order under s 314 of the RMA.71 He made the same submission to the District Court. Ms Besier points to authorities where “investigation” enforcement orders have been made, where it is seen as a necessary first step in remediation.72 She submits that regardless, the Court does not have jurisdiction to deal with this issue in a sentencing appeal.
[32] Again, the Judge dealt with the issue explicitly, stating it was surprising to receive such a submission considering the orders were made by consent and Mr Gifford’s counsel assisted the Environment Court in these matters.73 However, consent does not cure a lack of jurisdiction.
[33] As the Judge noted, the answer is that s 314(1)(b)(ii) of the RMA empowers the Environment Court to order a person to do something that, in its opinion, is necessary to mitigate, remedy, or avoid any actual or likely adverse environmental effects that have been caused by that person.74 That is what the order here does, by requiring engagement of a suitably qualified approved person to investigate a likely potential contamination effect to inform the position on remediation. The cases cited by Mr Gifford did not involve an investigation that was necessary for the remedy.75 The cases cited by Ms Besier show that if an investigation is a logical step in remedying the breach, by identifying the best way to remedy, an investigation is able to be ordered by the Environment Court.76 I consider that is the better view of the text of the statute, interpreted according to its purpose. This ground of appeal fails.
71 Citing Marlborough District Council v Woolley [2014] NZEnvC 79 at [74] (Woolley EnvC); and
Auckland Regional Council v Graham PT Auckland W63/92, 11 September 1992.
72 Upper Hutt City Council v Roil [2011] NZEnvC 18 at [14] and [16]; Taranaki Regional Council v South Taranaki District Council [2014] NZEnvC 21; and Wellington City Council v Dendra Investments Ltd EnvC Christchurch ENF 135/97, 28 August 1997.
73 Judgment on Appeal, above n 4, at [81].
74 At [82].
75 See Woolley EnvC, above n 71, at [74]; Auckland Regional Council v Graham, above n 71, at 3; and Hall v Port Otago Ltd PT Christchurch C048/96, 27 June 1996 at 23–24.
76 Upper Hutt City Council v Roil, above n 72, at [14] and [16]; Taranaki Regional Council v South Taranaki District Council, above n 72; and Wellington City Council v Dendra Investments Ltd, above n 72.
[34]The other points, which also all fail, can be dealt with more briefly:
(a)The quote of $80,000 to Mr Gifford by a water scientist for an investigation, more than what he anticipated, does not make a difference to whether Mr Gifford should have complied with the order. If the size and cost overwhelmed Mr Gifford, he could have alerted the Council and/or applied to the Court to amend the terms, as the Judge held.77
(b)The enforcement order was not silent as to what was required. It specifically required Mr Gifford and CRB to engage a qualified approved person to investigate a likely potential contamination to inform any remediation work.78
(c)The results of the subsequent testing by Tonkin and Taylor, undertaken in 2022, was not inconsistent with the sentencing.79
(d)It may be unusual to be prosecuted for a breach of an enforcement that has since been partially suspended. But that does not affect the fact that Mr Gifford breached the order that was in force, and to which he consented.
(e)The Judge was entitled to find it was a breach of the rule of law for which Mr Gifford was highly culpable. Mr Gifford chose to do nothing when he was unwilling to pay for something he agreed to pay for. In so doing, he disrespected his legal obligations and the rule of law.80
77 Judgment on Appeal, above n 4, at [84].
78 At [82]–[84].
79 Appendix I to the 2021 Summary of Facts suggests there was no effect on the Stream and an uncertain effect on downstream groundwater. But the report suggests there was a significant effect on the localised groundwater.
80 Judgment on Appeal, above n 4, at [85].
(f)While there were no environmental consequences as a result of the breach, the Judge was entitled to find that there was potential environmental harm, which is a relevant consideration in sentencing.81
5Personal circumstances
[35] Mr Clark submits the sentence took into account Mr Gifford’s personal circumstances of owning two residential houses and a farm, but he held one of the houses as trustee for his sister and the other house is jointly owned with his partner. Mr Gifford’s health and financial issues should also have been taken into account.
[36] As Mr Webber submits, Mr Gifford’s personal circumstances were taken into account. The Judge cannot be criticised for accepting the submission of Mr Gifford’s counsel, in writing and orally, that he was in a position to pay a fine.82 That is supported by the affidavit of Mr Gifford before the Court. Even on Mr Clark’s account from the bar, Mr Gifford’s assets amount to over $1 million. The fine is not disproportionate. There is nothing to suggest Mr Gifford is unable to pay it. And the Court was well aware of his health issues, which were not raised by counsel in relation to the amount of the fine. The Court did not err. This ground of appeal fails.
6The overall outcome
[37] Mr Clark submits the overall outcome of 50 per cent of the maximum penalty, was manifestly too high for a first-time offender who pleaded guilty and caused only transitory harm to the environment. The areas which originally contained grape marc no longer contain it. There are issues of concurrency to consider. The end outcome of a sentence is supposed to not be crippling.
[38] However, the original areas no longer contain grape marc because enforcement action was taken against Mr Gifford. Courts do not usually give credit to offenders for belatedly complying with their pre-existing environmental obligations.83 Here, there were four separate sets of offending at two properties over five years. Mr Clark’s
81 At [78].
82 At [143].
83 Thurston v Manawatu-Wanganui Regional Council, above n 5, at [67].
percentage calculations are wrong because they assume Mr Gifford was charged with only one offence. The total penalty is only 5.5 per cent of the maximum penalty for the number of charges Mr Gifford faced and 1.7 per cent of the maximum penalty for the charges CRB faced. There is no issue of concurrency of fines. The outcome was not manifestly excessive. As noted above, there is no evidence it is crippling. It was within the range available to the Judge. This ground of appeal fails.
[39] Finally, Mr Clark submits the Judge did not take into account a range of relevant factors when considering the totality of the offending. Each of these are factors that I have already dismissed above. None of the fines exceeded nine per cent of the maximum penalty. The Judge did not err in assessing the totality of the offending, which he considered twice.
Result
[40] The Judge did not err in sentencing Mr Gifford and CRB. No other sentence should be imposed instead.
[41]The appeal is dismissed.
Palmer J
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