Goodwin v Taranaki Regional Council

[2024] NZHC 2008

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2024-443-017

[2024] NZHC 2008

DENNIS JAMES GOODWIN

v

TARANAKI REGIONAL COUNCIL

Hearing:	26 June 2024
Counsel:	J M Woodcock for Appellant K J L de Silva for Respondent
Judgment:	22 July 2024

JUDGMENT OF GRAU J

[Sentence appeal]

[1]    The appellant, Dennis Goodwin, appeals against a fine of $42,000 imposed in the New Plymouth District Court on 18 April 2024. Mr Goodwin had pleaded guilty to three charges under ss 13, 14, 15 and 338 of the Resource Management Act 1991 (RMA) relating to discharge of contaminants, disturbance and reclamation, and diversion and damming of water in the Waikirikiri Stream 2 (the Stream) and an unnamed tributary of the Stream (the Tributary).1 The charges related to continuing offences between 1 August and 9 September 2022.

[2]    The sole basis of the appeal is the $60,000 starting point the Judge adopted. The appellant says it was too high and inconsistent with comparable cases. The appellant says the District Court Judge erred in her assessment of the seriousness of

1      Taranaki Regional Council v Goodwin [2024] NZDC 8200 [District Court Decision].

GOODWIN v TARANAKI REGIONAL COUNCIL [2024] NZHC 2008 [22 July 2024]

the offending and the level of culpability involved. Instead, given the extent of the work, the short term and limited impact on the environment, the nature of the environment, and the successful remediation, a starting point of $40,000 would have been the least restrictive outcome.

[3]    The respondent’s position is that there was no error by the sentencing Judge, who correctly applied the relevant factors, and the starting point was consistent with the levels imposed for similar offending.

The offending

[4]    The offending took place on a 16-hectare dairy farming support unit on Komene Road, Okato (the Property) that Mr Goodwin and his wife have owned for approximately 20 years.2 The Property is located in the lower part of the Waikirikiri catchment and is used to graze young stock to support a dairy farm run by Mr Goodwin and his wife. There are no resource consents held for the Property, although there are four associated with the dairy farm.

[5]    The unlawful works occurred within the Tributary and the Stream, which is the principal stream within the catchment. The Tributary is an intermittently flowing stream with a catchment that begins on an adjacent property and flows through the north-western corner of the Goodwin Property, entering the Stream approximately 190 metres downstream of the lower boundary of the Property. The Stream is a continuously flowing stream with a mixture of rocky and soft sediment streambed. Beyond the lower boundary of the Property, the Stream flows through a series of interconnected wetlands before reaching sand dunes adjacent to the Tasman Sea.

[6]    On 7 September 2022, the Taranaki Regional Council (the Council) received a complaint about stream works being undertaken on the Property. On 9 September 2022, Council enforcement officers and Brennan Mahoney, a Council freshwater biologist, inspected the Property.

2      The factual background is drawn from the parties’ agreed summary of facts dated 1 February 2024.

[7]The inspection revealed that the following works had been undertaken:

(a)a 420-metre-long diversion had been dug which intercepted the Stream and directed its flow around the perimeter of the Property (the Drainage Channel). The Drainage Channel then discharged the flow back into the Stream at the lowermost point on the Property boundary. The Drainage Channel had been cut with near vertical banks which, combined with the unconsolidated surrounding geology, resulted in slump and slab erosion of the walls;

(b)an earth dam measuring 23 metres across had been placed within the Stream at the intersection with the Drainage Channel, diverting the water along the Drainage Channel. This resulted in the burying and reclamation of 23 metres of the bed of the Stream with fill material and 320 metres of the Stream being drained; and

(c)the flow from the Tributary was redirected into the Drainage Channel, resulting in reclamation of approximately 55 metres of the Tributary and draining of approximately 190 metres of the Tributary. In total, approximately 245 metres of the Tributary was drained.

[8]    By way of explanation for the works, Mr Goodwin said he carried out the work himself in attempt to save money and he did not contact the Council first as “they just hold you up”. He did the work to avoid the need to install fencing. He said that he thought it “would benefit everyone”.

[9]    On 13 September 2022, an abatement notice was served on Mr Goodwin requiring him to undertake remedial works by 7 October 2022. The remedial works were not fully completed until 1 May 2023.

[10]   These works breached ss 13, 14 and 15 of the RMA as they were undertaken without a resource consent and are not expressly allowed by a national environmental standard or other regulations, or a rule in a regional plan.

Sentencing decision

[11]   The Judge adopted the two-step sentencing process, following Moses v R.3 She also referred to the sentencing approach for pollution offences under the RMA summarised by the High Court in Thurston v Manawatu-Wanganui Regional Council (Thurston),4 noting that the relevant factors include:5

… the offender’s culpability; any infrastructural or other precautions taken to prevent discharges; the vulnerability or ecological importance of the affected environment; the extent of the environmental damage, including any lasting or irreversible harm, and whether it was of a continuing nature or occurred over an extended period of time; deterrence; the offender’s capacity to pay a fine; disregard for abatement notices or Council requirements; and cooperation with enforcement authorities and guilty pleas.

[12]   The Judge noted reports from the Council Rivers Manager and the Council Freshwater Biologist that recorded the works caused significant adverse effects on the local instream environment, aquatic life, and instream habit, some of which will continue for months or years until the physical processes can return to their pre-works state.6 She also observed the potential risks to the mauri of Waikirikiri as a result of the offending.7 The Judge found overall that the adverse effects on the environment were moderate.8

[13]   The Judge also found Mr Goodwin’s culpability was high and his conduct reckless, as he chose not to obtain a resource consent when he must have known one was required, did not comply with any of the standards applying to permitted activities, and failed to undertake steps towards remediation in a timely manner.9

[14]   In assessing the appropriate starting point, the Judge considered the present case was most analogous to Taranaki Regional Council v Potroz (Potroz),10 where a

3      District Court Decision, above n 1, at [66]; Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].

4      Thurston v Manawatu-Wanganui Regional Council  HC Palmerston North CRI-2009-454-24,  27 August 2010 [Thurston] at [41].

5      District Court Decision, above n 1, at [21].

6      At [34]–[35].

7 At [36].

8 At [37].

9 At [41].

10     Taranaki Regional Council v Potroz [2020] NZDC 9077 [Potroz].

starting point of $65,000 was adopted.11 However, she acknowledged the effects on the environment in this case were not as serious as in Potroz, where remediation was expected to take 50 years.12 The Judge therefore adopted a starting point of $60,000. She considered this level of penalty would suffice to act as an effective deterrent for such offending, whereas Mr Goodwin’s suggested starting point of between $30,000–

$40,000 would not.13

[15]   Turning to personal aggravating and mitigating factors, although Mr Goodwin had some previous instances of non-compliance, the Judge considered a discount of five per cent was still warranted for good character.14 However, the Judge declined a further five per cent discount that had been sought for remorse, given the more than four-month delay in Mr Goodwin completing the remedial works.15

[16]Mr Goodwin’s early guilty plea was recognised with a 25 per cent discount.16

[17]   The result was a fine of $42,000.17 In terms of s 342(2) of the RMA, the Judge ordered 90 per cent of the  fine  to  be  paid  to  the  Taranaki  Regional  Council.18 Mr Goodwin was also ordered to pay court costs of $130 and a solicitor’s fee of $113.19

Approach on appeal

[18]   The appeal is brought pursuant to s 244 of the Criminal Procedure Act 2011 (CPA). Appeals against sentence are governed by s 250 of the CPA, which provides:

250     First appeal court to determine appeal

(1)A first appeal court must determine a first appeal under this subpart in accordance with this section.

(2)The first appeal court must allow the appeal if satisfied that—

(a)for any reason, there is an error in the sentence imposed on conviction; and

11     District Court Decision, above n 1, at [54].

12     At [54]–[55].

13     At [56]–[57].

14     At [59] and [64].

15 At [64].

16 At [65].

17 At [67].

18 At [68].

19 At [69].

(b)a different sentence should be imposed.

(3)The first appeal court must dismiss the appeal in any other case.

[19]   In determining whether the sentence imposed is manifestly excessive, the Court must focus on the correctness of the end result, rather than the process by which the sentence was reached.20

Relevant law

[20]The two-step approach to sentencing was set out by the Court of Appeal in

Moses v R as follows:21

(a)the first step is to calculate the adjusted starting point, incorporating all the aggravating and mitigating features of the offence; and

(b)the second step is to incorporate all the aggravating and mitigating factors personal to the offender, together with any guilty plea discount, which should be calculated as a percentage of the adjusted starting point.

[21]   Sentences for RMA offences are determined pursuant to the Sentencing Act 2002. The purposes and principles of sentencing in ss 7 and 8 of the Sentencing Act are relevant insofar as they are engaged in the particular case.22

[22]   There are no tariff cases for RMA offences. However, the relevant sentencing principles for RMA offending are set out in Thurston.23

[23]The factors relevant to the first step of determining the starting point include:24

(a)the offender’s culpability, for instance, whether the conduct is deliberate, reckless, or inadvertent;

20     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

21     Moses v R, above n 3.

22     Thurston, above n 4, at [40].

23 At [41].

24 At [41].

(b)any infrastructural or other precautions taken to prevent discharges;

(c)the vulnerability or ecological importance of the affected environment;

(d)the extent of the environmental damage, including any lasting or irreversible harm, and whether it was of a continuing nature or occurred over an extended period of time. When no specific lasting harm can be identified, an allowance for harm may be made on the basis that any given offence contributes to the cumulative effect of pollution generally;

(e)deterrence; and

(f)disregard for abatement notices or Council requirements.

Discussion

[24]   As above, the only issue on appeal is the starting point. That requires, in particular, a comparison with the case of Potroz, another sentencing decision of the same Judge involving three charges of breaching the RMA by draining, damming and discharging contaminants into a stream, and the adoption of a $65,000 starting point.

[25]   I note here the respondent submits on appeal that the Judge correctly applied the relevant factors in reaching a starting point of $60,000. At sentencing however, a starting point of $90,000 was sought. In contrast Mr Goodwin had sought a starting point between $30,000 to $40,000 which is now, on appeal, revised to $40,000.

[26]   As the Judge noted, both the present case and Potroz involved three representative charges relating to unlawful activities that caused significant adverse effects on the environment, with the potential to cause further adverse effects. However, she agreed with the submission for Mr Goodwin that a lower stating point was appropriate here when the effects on the environment were not as serious. She pointed to the features that made Potroz more serious; that the issue of sediment

control was continuing and unresolved, and that remediation was expected to take  50 years.25

[27]   The Judge then balanced that factor against her finding that Mr Goodwin was reckless in his approach to the works and “somewhat relaxed” in his approach to remediation.26 In this case, Mr Goodwin knew of the need for resource consents, having previously obtained consent for other works involving streams but he said he did not contact the Council first as “they just hold you up”. In contrast Mr Potroz had said it never occurred to him that a consent would be required.27 I therefore consider the Judge’s finding that Mr Goodwin was merely reckless to have been somewhat charitable.  I do not consider there is any meaningful distinction between him and  Mr Potroz in that regard. Nor do I accept there is a meaningful difference because Mr Potroz had a history of non-compliance with resource consents, when the Judge did not take that into account in sentencing Mr Potroz,28 and where Mr Goodwin’s record is itself not perfect but he nevertheless received a five per cent reduction for previous good character.29

[28]   Nor do I accept the submission that Mr Goodwin’s motivation was meaningfully distinct from Mr Potroz’s. Mr Potroz wanted to provide a better water supply for stock on his farm.30 Mr Goodwin undertook his work to improve productivity on his farm by providing more land for grazing. Thus, both farmers could be said to have had a profit-based motive, even if Mr Goodwin appears to have considered his works had a wider benefit.

[29]   The extent of the works undertaken by Mr Goodwin was at least as extensive as that undertaken by Mr Potroz, if not more. Mr Potroz had constructed a three- metre-high  earth  dam,  compared  to  the  23-metre  earth   dam   constructed  by Mr Goodwin. Although Mr Potroz had removed a significant amount of vegetation,

25     District Court Decision, above n 1, at [54]–[57].

26 At [56].

27     Potroz, above n 10, at [40].

28 At [50].

29 District Court Decision, above n 1, at [59] and [64]; Mr Goodwin had previously been issued with two infringement notices (in 2015 and 2023) and one abatement notice (in 2022) in respect of an unrelated RMA issue.

30 Potroz, above n 10, at [41].

Mr Goodwin’s works resulted in dewatering 320 metres of the Stream and the drainage of 190 metres of the Tributary, which was not an effect of Mr Potroz’ works. As well as this, the Drainage Channel constructed by Mr Goodwin was over 400 metres long and posed an issue of public safety through a loss of toe support at areas where it had been cut too close to Komene Road.31

[30]   Mr Potroz also co-operated with the Council’s investigation of his works and had expressed remorse.32 In contrast, Mr Goodwin’s dilatory approach to remedial work made any claimed remorse questionable.

[31]Counsel for Mr Goodwin also referred to a number of other comparative cases:

(a)Northland Regional Council v Jones:33 a starting point of $50,000 was adopted for six charges that related to earthworks. The quantity of soil cut and filled was around 500 to 1000 cubic metres with evidence that the sediment killed fish life, but the volume of sediment discharged appeared to be less than 10 cubic metres. The impact of the work was considered to be at the lower end of the moderate category, which is lower than the Judge’s assessment of Mr Goodwin’ culpability in this case.

(b)Hardegger v Southland Regional Council:34 where a starting point of

$50,000 was adopted for three charges relating to excavating and disturbing a river bed. The earthworks were carried out by a contractor over five months. The effects including sedimentation, disruption of ecological processes, habitat destruction, and impacts on trout and other threatened or vulnerable aquatic and bird species. The Court recognised that—notwithstanding the offending—the Hardegger’s management of their farms had generally been of benefit to the environment.

31     District Court Decision, above n 1, at [12(a)].

32     Potroz, above n 10, at [53].

33     Northland Regional Council v Jones [2022] NZDC 2150.

34     Hardegger v Southland Regional Council [2017] NZHC 469.

(c)R v Boyd:35 a starting point of $60,000 was adopted for eight charges relating to works undertaken on a river. The environment affected was almost one kilometre of the original stream. There was a significant amount of sediment deposited, as well as destruction of the habitat of some aquatic species. The resulting erosion also led to significant sediment disposition further downstream.

(d)Otago Regional Council v Gibson:36 starting points of $30,000 for the defendant and $20,000 for the contractor for unlawful disturbance of a stream bed. A three-day period of work involved the use of a digger to remove vegetation over a 1.3-kilometre distance. The effect, on a regionally significant brown trout fishery, was serious.

[32]   These cases might suggest that a starting point less than $60,000 would have been open to the Judge. However, they do not demonstrate that the Judge’s assessment of Mr Goodwin’s offending was incorrect, in particular, her finding that it was of a similar level of seriousness to that of Mr Potroz. In other words, the cases do not establish that the $60,000 starting point was out of range. In the RMA context, each case largely depends on its own circumstances.37 Significantly in this case, as noted above, the works here involved an element of public safety concerns that are not apparent in the other cases. And, as I have found, it was arguably generous to describe Mr Goodwin’s approach as “reckless” given he deliberately did not seek a resource consent when he knew one was required. The short point is that another Judge might have adopted a lower starting point at or near the $50,000 mark, but that does not mean the $60,000 starting point in this case is outside an available range. And where deterrence is an important factor, I agree with the Judge that the penalty needed “enough sting”.

[33]   Both counsel made submissions on whether inflation should be taken into account when setting the level of a fine. This was not a factor considered by the

35     R v Boyd [2016] NZDC 16558.

36     Otago Regional Council v Gibson [2016] NZDC 14362.

37     Potroz, above n 10, at [49].

sentencing Judge, therefore I do not consider it necessary to deal with this point on appeal.

[34]   I am not satisfied that the sentence imposed on Mr Goodwin was manifestly excessive. There is no reason apparent to me that would justify departing from the District Court Judge’s decision. Mr Goodwin’s appeal is dismissed accordingly.

Grau J

Solicitors:
C & M Legal, New Plymouth for Appellant

cc:        K de Silva, Auckland for Respondent