Roberts v Northland Regional Council
[2014] NZHC 284
•26 February 2014
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI 2013-488-000046 [2014] NZHC 284
BETWEEN CRAIG DOUGLAS ROBERTS Appellant
ANDNORTHLAND REGIONAL COUNCIL Respondent
Hearing: 11 February 2014
Appearances: A Hyndman and C Prendergast for the Appellant
K de Silva for the Respondent
Judgment: 26 February 2014 at 4pm
(RESERVED) JUDGMENT OF ANDREWS J
This judgment is delivered by me on 26 February 2014 at 4pm pursuant to r 11.5 of the High Court Rules.
..................................................... Registrar / Deputy Registrar
Solicitors:
Henderson Reeves Connell Rishworth Lawyers, Whangarei
K de Silva, Barrister, Auckland
ROBERTS v NORTHLAND REGIONAL COUNCIL [2014] NZHC 284 [26 February 2014]
Table of Contents
Introduction ..........................................................................................................[1] Facts.......................................................................................................................[2] District Court proceedings ..................................................................................[8] Application for extension of time to appeal .....................................................[10]
Appeal against conviction
Approach to appeal .............................................................................................. [11]
Issues on appeal ...................................................................................................[14]
The abatement notice charge
(a) Relevant statutory provisions ....................................................................[17] (b) The abatement notice.................................................................................[19] (c) Was the abatement notice invalid because it required continuing
compliance?...............................................................................................[21] (d) Was the abatement notice invalid because of a lack of specificity? ..........[26] (e) Is the abatement notice “spent” (and therefore invalid), because it
has been complied with? ...........................................................................[36]
(f) Conclusion as to appeal against conviction on the abatement
notice charge .............................................................................................[40]
The herd homes charge
(a) Introduction ...............................................................................................[41]
(b) Was there direct evidence of a discharge during the period from
16 to 20 September 2011? .........................................................................[44] (c) Was the Council officers’ evidence inadmissible? .....................................[45] (d) Mr Blackburn’s evidence ...........................................................................[64] (e) Conclusion as to appeal against conviction on the herd homes
charge ........................................................................................................[71]
Appeal against sentence
District Court sentencing .....................................................................................[72]
Submissions on appeal .........................................................................................[80] Approach on appeal .............................................................................................[84] Starting points ......................................................................................................[85] Adjustments ..........................................................................................................[90] Mr Roberts’ financial circumstances....................................................................[96] Conclusion as to fines imposed ..........................................................................[100]
The orders in relation to Mr Parsons’ and Mr Blackburn’s costs ......................[101] Totality................................................................................................................ [112] Conclusion as to appeal against sentence ......................................................... [113] Result ................................................................................................................. [114]
Introduction
[1] Mr Roberts has appealed against his conviction on two charges laid under the Resource Management Act 1991 (“the RMA”), in respect of which he was found guilty on 21 February 2013, following a defended hearing before Judge L Newhook in the Whangarei District Court (“the substantive judgment”).1 He has also appealed against the sentence imposed in respect of those charges and three further charges by Judge Newhook in the District Court at Whangarei on 18 September 2013 (“the sentencing judgment”).2
Facts
[2] Mr Roberts operates a dairy farm near Waipu, south of Whangarei “the farm”). The farm is owned by a family trust and Mr Roberts and his wife are the directors and shareholders of the corporate trustee of the trust. Rather than seek a resource consent for some alternative approach, Mr Roberts opted to operate his farm dairy effluent (“effluent”) system pursuant to the permitted activity criteria set out in r 16.1(i) of the Regional Water and Soil Plan for Northland (“the Plan”). The system involved effluent from the farm dairy being reticulated to a concrete collection tank, sited below ground. A pump mounted on the tank enabled effluent to be pumped from the tank to a travelling irrigator, or to a storage pond.
[3] Of particular relevance for this appeal is the fact that there are two “herd homes” on the farm. A herd home is a covered concrete structure used for housing and feeding cows. Herd homes have a slatted concrete floor above a concrete basement collection bunker. Effluent passes through the slatted floor into the bunker for drying and storage. The liquid effluent can later be removed, and the solid effluent spread onto pasture as fertiliser. There is an area of approximately 900 m² in front of the herd homes, which is used for getting cows into and out of the herd
homes. This is a high stock traffic area.
1 Northland Regional Council v Roberts DC Whangarei CRN-120-885-369 and 371–376, 21
February 2013.
2 Northland Regional Council v Roberts DC Whangarei CRN-120-885-369 and 371–376, 18
September 2013.
[4] There is a history of non-compliance with the permitted activity criteria. Northland Regional Council (“the Council”) monitoring officers found significant non-compliance at inspections in August 2005, August 2007, October 2008, March
2009, September 2009, and August 2010. Non-compliance has included discharges of effluent to land and to water from a stormwater bypass, the dairy effluent collection tank, and a feed pad, discharges from the irrigator on three occasions, and effluent discharges to a drain from the area in front of the herd homes on three occasions. Abatement notices under ss 322 to 324 of the RMA were issued to Mr Roberts on 11 April 2005, 11 November 2008, and 19 March 2009. Infringement Notices under s 343C of the RMA were issued in 2005, 2008, and 2009.
[5] The farm was inspected by Council monitoring officers on 16 and 21
September 2011. Two further abatement notices were served on Mr Roberts on
19 September 2011.
[6] Analysis of samples taken from waterways within and downstream from the farm on 16 and 21 September 2011 revealed contamination (extremely high faecal coliform counts, anaerobic water conditions, and high ammoniacal nitrogen counts).
[7] The Council charged Mr Roberts with seven offences (in some cases amended by leave at the defended hearing) which may be summarised as follows:
(a) Committing a continuing offence by permitting a contravention of an abatement notice issued on 19 March 2009 (CRN -369).
(b) Permitting intermittent discharge of effluent from an irrigator
(CRN -371 (withdrawn by leave)).
(c) Between 16 and 21 September 2011, permitting intermittent discharge of effluent from the area in front of a herd home (CRN -372).
(d)Between 16 and 21 September 2011, contravening an abatement notice issued on 19 March 2009 (CRN -373). This was alleged as a
continuing offence, and it was amended to refer also to an abatement notice issued on 19 September 2011.
(e) On 21 September 2011, discharging a contaminant (effluent) from a dairy entry race onto land in circumstances which may have resulted in that contaminant entering water (CRN -374).
(f) On 16 September 2011, discharging a contaminant (effluent) from an irrigator onto land in circumstances which may have resulted in that contaminant entering water (CRN -375).
(g)Between 16 and 21 September 2011, intermittently discharging a contaminant (effluent) from one of the herd homes onto land in circumstances which may have resulted in that contaminant entering water (CRN -376).
District Court proceedings
[8] Mr Roberts entered pleas of guilty to the charges set out at (c), (e), and (f) (CRN -372, -374, and -375). He entered pleas of not guilty to the charges set out at (a), (d), and (g), above (CRN -369, -373, and -376). These charges were heard on 14 and 15 February 2013, and the Judge found Mr Roberts guilty on all three. The Judge noted that the charges in CRN -369 and -373 were “essentially laid in the alternative”, in that the former charge alleged a contravention by permitting, while
the latter alleged the actual contravention of the abatement notice.3 In an agreed
summary of facts prepared for sentencing, the parties agreed that a conviction should not be entered on the charge of permitting contravention (CRN -369).
[9] On 18 September 2013 Mr Roberts was sentenced on the charges in CRN -
373 and -376, on which he had been found guilty, and the three charges to which he had earlier pleaded guilty. He was fined a total of $137,750 and ordered to pay costs totalling $19,324.50 (a total financial penalty of $157,074.50). Pursuant to s 342 of the RMA, the Judge ordered that 90 per cent of the fines was to be paid to the
Council.
3 Substantive judgment, above n 1, at [4].
Application for extension of time to appeal
[10] Mr Roberts’ notice of appeal was required to be filed by 17 October 2013. It was filed four days late, on 21 October 2013. He now seeks an extension of time to appeal. The delay has been explained, and an extension of time was not opposed by the Council. Accordingly, time is extended for the appeal to be brought.
Appeal against conviction
Approach to appeal
[11] This appeal is governed by the provisions of the Summary Proceedings Act
1957. Section 121(2) of that Act allows the High Court to confirm the conviction, set it aside, or amend it. The appeal is by way of rehearing.
[12] According to Elias CJ in Austin, Nichols & Co Inc v Stichting Lodestar:4
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.
[13] In O’Neill v Police,5 it was noted that in coming to its own judgment, the appeal court should pay appropriate deference to findings made by a Judge who had the advantage of hearing the witnesses on questions of credibility, but it must nevertheless review the evidential basis for factual findings carefully.
Issues on appeal
[14] In respect of his appeal against conviction on the charge of having committed a continuing offence by intermittently contravening the abatement notice between 16 and 21 September 2011 (“the abatement notice charge”), it was contended for Mr
Roberts that:
4 Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 at [16].
5 O’Neill v Police [2009] DCR 131 (HC) at [5]
(a) The abatement notice was invalid, in that it purported to require ongoing compliance;
(b)The abatement notice was invalid for the further reason that it lacked the required specificity; and
(c) The abatement notice had been complied with, so it had ceased to have any effect.
[15] In respect of his appeal against conviction on the charge of having committed a continuing offence between 16 and 21 September 2011, by intermittently discharging a effluent from one of the herd homes (“the herd homes charge”), it was contended for Mr Roberts that while a discharge on 21 September 2011 was admitted, the Council had failed to prove that an offence was committed during the period 16 to 20 September 2011.
[16] I turn first to the appeal against conviction on the abatement notice charge.
The abatement notice charge
(a) Relevant statutory provisions
[17] It is necessary to refer to the relevant statutory provisions, from Part 12 (Enforcement) of the RMA.
322 Scope of abatement notice
An abatement notice may be served on any person by an enforcement officer—
(a) requiring that person to cease, or prohibiting that person from
commencing, anything done or to be done by or on behalf of that person that, in the opinion of the enforcement officer,—
(i) contravenes or is likely to contravene this Act, any regulations, a rule in a plan, or a resource consent; or
(ii) is or is likely to be noxious, dangerous, offensive, or objectionable to such an extent that it has or is likely to have an adverse effect on the environment:
(b) requiring that person to do something that, in the opinion of the enforcement officer, is necessary to ensure compliance by or on
behalf of that person with this Act, any regulations, a rule in a plan or a proposed plan, or a resource consent, and also necessary to
...
avoid, remedy, or mitigate any actual or likely adverse effect on the environment—
(i) caused by or on behalf of the person; or
(ii) relating to any land of which the person is the owner or occupier:]
(3) An abatement notice may be made subject to such conditions as the enforcement officer serving it thinks fit.
(4) An abatement notice shall not be served unless the enforcement officer has reasonable grounds for believing that any of the circumstances in subsection (1) or subsection (2) exist.
323 Compliance with abatement notice
(1) Subject to the rights of appeal in section 325, a person on whom an abatement notice is served shall—
(a) Comply with the notice within the period specified in the notice; and
(b) Unless the notice directs otherwise, pay all the costs and expenses of complying with the notice.
...
324 Form and content of abatement notice
Every abatement notice shall be in the prescribed form and shall state—
(a) the name of the person to whom it is addressed; and
(b) the reasons for the notice; and
(c) the action required to be taken or ceased or not undertaken;
and
(d) the period within which the action must be taken or cease, having regard to the circumstances giving rise to the abatement notice, being a reasonable period to take the action required or cease the action; but must not be less than
7 days after the date on which the notice is served if the abatement notice is within the scope of section 322(1)(a)(ii)
and the person against whom the notice is served is complying with this Act, any regulation, a rule in a plan, or a
resource consent; and
...
[18] Pursuant to s 325(1) of the RMA, any person on whom an abatement notice has been served may appeal to the Environment Court against the whole or any part of the notice, and may apply to that court for a stay of the notice pursuant to s 325(3A). Pursuant to s 325A of the RMA, a person directly affected by an abatement notice may apply to the local authority or enforcement officer who issued the notice for the notice to be changed or cancelled.
(b) The abatement notice
[19] The abatement notice served on Mr Roberts on 19 March 2009 was addressed to him and stated (as relevant to the appeal):
1.Northland Regional Council gives notice that you must take (or cease or not undertake) the following action:
Cease the discharge of farm dairy effluent to land in any way in which it is likely to contaminate water.
2. The location to which this abatement notice applies is:
Your farm property (Fonterra Supply No. 11625) at Waipu at or around NZTMP 1693081/6003495
3. You must comply with this abatement notice immediately.
And continue to comply with this notice thereafter.
4. This notice is issued under:
Section 322(1)(a)(i) of the Resource Management Act 1991.[Set out as above]
5. The reasons for this notice are:
Enforcement Officer, Dennis Wright, visited the property on 16
March 2009 and found that:
Farm dairy effluent from a dairy and standoff area had discharged to land and to water.
Farm dairy effluent from an irrigator had discharged to land and to water.
Section 15(1)(b) of the [RMA] prohibits the discharge of any contaminant onto land in circumstances which may result in that contaminant entering water unless the discharge is expressly allowed by a rule in a regional plan or in any relevant proposed regional plan, resource consent or regulations.
The discharges, on 16 March 2009 contravened section 15(1)(b) of the [RMA].
Contravention of section 15(1)(b) of the [RMA] is an offence under section 338(1)(a) of the [RMA].
The notice concluded by referring to the consequences of failure to comply with the notice, and setting out Mr Roberts’ right to appeal to the Environment Court against the notice and seek a stay, or to apply to the Council to change or cancel the notice.
[20] A covering letter to the abatement notice (dated 23 March 2009) set out the findings of the Council monitoring officer (Mr Wright) in more detail:
Untreated effluent had discharged to a drain between the yard and the herd homes.
The untreated effluent discharged to water.
There was over-application and excessive ponding of effluent at the irrigator.
Effluent from the irrigator flowed overland to a drain and to water.
The discharges caused obvious discolouration in the receiving waters.
There was no contingency storage.
It was further noted that:
The ongoing non-compliance with Regional Rules and the [RMA] is unacceptable.
With winter milking and inadequate contingency storage it is inevitable that significant non-compliance will continue.
The letter included the following “recommendations”:
It is recommended that you upgrade the disposal system by:
Installing a pond or ponds with storage capacity for 90 days.
Extending the area used for land application to at least 40 hectares.
It is strongly recommended that you secure the services of a suitably qualified consultant to research options and design an upgrade of the effluent disposal system. This should be done urgently.
(c) Was the abatement notice invalid because it required continuing compliance?
[21] As set out earlier, the abatement notice required Mr Roberts to comply with it “immediately”, and to “continue to comply with [it] thereafter”. Counsel for Mr Roberts argued in the District Court that an abatement notice cannot require continuing compliance, and must be for a finite term. This question was dealt with by the Judge as a preliminary issue. Having heard submissions, he refrained from making a ruling until he had heard the evidence. In the substantive judgment, the
Judge concluded:6
I find there is nothing in subsection (d) of s 324 requiring that Abatement Notices be framed in such a way as to avoid incorporating an infinite term. Timeframes are required to be “reasonable”, and continuing events such as ongoing illegal effluent discharges to water on dairy farms can readily justify the approach that was taken in this instance. This may be in some contrast to
6 Substantive judgment, above n 1, at [17].
other types of one-off offending, for instance illegal earthworks. In administrative law terms, the statement of a time for commencement of compliance is almost certainly a mandatory requirement, while a statement of continuation period is more likely to be of a directory nature and to depend on the circumstances of the case and the availability of rights to seek cancellation under s 325A. There is also the over-arching purpose of the [RMA] to be borne in mind.
[22] On appeal, Ms Prendergast (who presented Mr Roberts’ oral submissions on this aspect of the appeal) submitted that the Judge had conflated the purpose of an abatement notice with that of the RMA, and had confused the requirement to comply with the abatement notice within a reasonable period with the ongoing obligation to comply with the RMA and the Plan. She submitted that the notice itself did not set out any inherent power to require continuing compliance, and that on a proper interpretation of ss 322 to 324, an abatement notice cannot require compliance on a continuing basis. She further submitted that the Council’s practice of issuing fresh abatement notices supported this interpretation.
[23] For the Council, Ms de Silva submitted that there is nothing in ss 322 to 324 that prevents an abatement notice from requiring ongoing compliance. In particular, she submitted, s 324(d) does not provide that an abatement notice must have a finite deadline. It provides for a “reasonable” time for compliance and, in the case of the disposal of dairy effluent (which is a significant problem in Northland), disposal must be an ongoing daily operation. Ms de Silva submitted that abatement notices previously issued to Mr Roberts also required ongoing compliance, and he had never appealed against them, or sought to have them cancelled or changed. She further submitted that on a practical level (given that the Council cannot be at a farm every day to ensure compliance) it is consistent with the purposes and principles of the RMA that an abatement notice can be used as a warning to a farmer of the need, on a continuing basis, to comply with the requirements of the notice.
[24] I reject the submission for Mr Roberts that the Judge erred in concluding that s 324(d) of the RMA does not require an abatement notice to have a finite term. Timeframes are required to be reasonable having regard to the particular circumstances. In the context of effluent discharges, ongoing compliance is reasonable. Further, the requirement that the notice be complied with immediately does not preclude the need for ongoing compliance.
[25] Further, I reject the submission that the Judge conflated the purposes of the abatement notice and the RMA. The provisions of s 322 of the RMA “are to be given a fair, large and liberal construction to ensure the object and purposes of the Act as a whole”.7 The overall purpose of the RMA is to “promote the sustainable management of natural and physical resources”,8 and the meaning of “sustainable management” includes “avoiding, remedying, or mitigating any adverse effects of activities on the environment.”9 Therefore, the purpose of the enforcement provisions (including ss 322 to 324) is to ensure compliance with the RMA, and to further the overall purpose. Accordingly, I conclude that the abatement notice was
not invalid because it required ongoing compliance.
(d) Was the abatement notice invalid because of a lack of specificity?
[26] Ms Prendergast submitted that the abatement notice lacked specificity in that it failed to require Mr Roberts to comply with the Plan, the “reasons” for the notice did not refer to the RMA or the Plan, and the notice did not refer to the specific locations (by way of map co-ordinates) of the discharge that was required to cease.
[27] Ms Prendergast further submitted that in requiring Mr Roberts to “cease the discharge of farm dairy effluent to land in any way in which it is likely to contaminate water” the abatement notice imposed a more stringent test than the permitted activity rules of the Plan. Rule 16.1(i) of the Plan allows for a discharge which “results in no more than minor contamination of groundwater and surface water” in defined circumstances.
[28] Ms Prendergast also submitted that the notice was defective in that it did not require any affirmative action to be carried out in order to ensure compliance with the RMA or the Plan, rather it was restrictive and couched in broad terms.10
[29] Ms de Silva submitted that the notice contained all required details, it referred to s 15(1)(b) of the RMA, and that it properly required “affirmative action”. In order
to comply with the requirement to cease the discharge, Mr Roberts had to take
7 See Zdrahal v Wellington City Council [1995] 1 NZLR 700 (HC) at 706.
8 RMA, s 5(1).
9 RMA, s 5(2)(c).
10 Citing McNoe v West Coast Regional Council [1992] 1 NZRMA 235 (PT).
affirmative action to ensure that his effluent system was adequate, was working properly, and was properly managed. She further submitted that it would have been inappropriate for the Council to specify in the abatement notice the specific actions required to be taken, as it is the farmer’s responsibility to install and manage an effective effluent disposal system. There are many different systems, or combinations of systems, that may work well. She submitted that the Council may appropriately make recommendations (rather than order specific actions), as the Council did in its letter of 23 March 2009.
[30] Ms de Silva also submitted that in using the phrase “likely to contaminate”, the Council had in fact used a less stringent test than is provided in either the RMA or the Plan. That is, the onus of proving that a discharge is “likely to contaminate” (in the abatement notice) is more difficult for the Council to satisfy than that the discharge “may contaminate” (s 15(1)(b) of the RMA) or that it may cause contamination to “no more than a minor extent” (in r 16.1(i) of the Plan). Ms de Silva also submitted that in any event, in the light of the evidence as to the extent of the contamination seen on both 16 and 21 September 2011, this point is academic.
[31] An abatement notice must follow s 324 of the RMA and Form 48 in its form and content.11 Notices should contain a precise reference to the sub-clause of s 322 that is relied on,12 must state the reasons for the notice,13 and the action required to be taken or ceased including precise details of what is required.14 Further, it must accurately state the locality to which it applies. Whether the formal requirements are
met “is a question in each case as to whether the notice taken in its entirety adequately complies with the regulation and the prescribed form and clearly and fairly informs the recipient of all necessary and relevant matters.”15
[32] The abatement notice in the present case referred to s 322(1)(a)(i) of the
RMA, and set out the reasons for the notice (referring to s 15(1)(b) of the RMA).
11 See Resource Management (Forms, Fees, and Procedure) Regulations 2001, Sch 1, Form 48.
12 See Sykes v Rotorua District Council [1992] 1 NZRMA 233 (PT).
13 RMA, s 324(b).
14 Section 324(c) and Form 48.
15 See Lendich Construction Ltd v Waitakere City Council NZEnvC Auckland A077/99, 20 July
1999 at [71].
It also stated the locality to which it applied, by giving the Fonterra supplier number and the map co-ordinates for the farm. Further, under the “reasons” heading, the notice referred to “a dairy and standoff area” and “an irrigator” from which effluent has discharged. I reject Ms Prendergast’s submission that the notice was required to state map co-ordinates for each individual site of discharge. The details of locality on the notice “clearly and fairly” informed Mr Roberts of the locality to which it applied.
[33] Nor do I accept Ms Prendergast’s submission that the notice failed to set out adequately the “action required to be taken or ceased”. The “precise detail” of what Mr Roberts was required to do was clear: it was to “cease the discharge of farm dairy effluent to land in any way in which it is likely to contaminate water”. The Council was not required to specify what “affirmative action” Mr Roberts was required to take; it was not a notice under s 322(1)(b). I accept Ms de Silva’s submission that it would have been inappropriate for the Council to specify the specific actions for Mr Roberts to take, as it is the farmer’s responsibility to install and manage an effluent disposal system, and there are different systems, or combinations of systems, that may work well in particular cases. It is for the farmer to decide (and carry out) the appropriate measures to cease the discharge and thus comply with the notice. The Council appropriately made recommendations, but they were no more than that.
[34] On the issue of whether the notice was “more onerous” for Mr Roberts, and imposed on him a more stringent test, than the permitted activity rules of the Plan, I accept Ms de Silva’s submission that in using the words “likely to contaminate” the Council was in fact, setting itself an onus (in the context of having to prove any alleged future breach of the notice) of proving that a discharge was “likely to contaminate”, whereas s 15 (1)(b) of the RMA provides that it is an offence if a discharge may contaminate, and the rules and Plan allow for “no more than minor contamination”.
[35] Accordingly, I am not satisfied that the abatement notice is invalid by reason of a lack of specificity.
(e) Is the abatement notice “spent” (and therefore invalid), because it has been complied with?
[36] The notice was served on Mr Roberts in March 2009. Ms Prendergast referred me to a letter from the Council to Mr Roberts dated 7 September 2010 in which, she submitted, the Council accepted that Mr Roberts had carried out the actions recommended by the Council. Ms Prendergast submitted that Mr Roberts had ceased the discharges and had, therefore, complied with the notice. She submitted that the notice could not continue to have effect after that time.
[37] Ms de Silva submitted that the notice had not been complied with, so there was no question of it being “spent”. She referred to Council’s report of an inspection on 8 September 2009 (the first after the March 2009 notice) which recorded five discharges of effluent, and the report of 7 September 2010 which, while noting the actions taken by Mr Roberts, recorded “significant management issues” and that effluent was “likely to enter water”. The inspection on 16 September 2011 revealed further discharges of effluent, which led to the present prosecution.
[38] Ms de Silva further submitted that the notice required Mr Roberts to “cease the discharge of effluent” and the discharges recorded in Council inspections after the notice was served showed that Mr Roberts had not complied with the notice. In the circumstances, she submitted, it could not be said that Mr Roberts had complied with the notice.
[39] I accept Ms de Silva’s submission that the abatement notice required Mr Roberts to cease the discharge of effluent, and that the recommended actions set out in the Council’s letter were just that: recommendations offered “by way of constructive assistance”.16 Accordingly, I do not accept Ms Prendergast’s submission that once Mr Roberts had carried out the recommended actions, the
abatement notice was spent and of no further effect.
16 Substantive judgment, above n 1, at [18].
(f) Conclusion as to appeal against conviction on the abatement notice charge
[40] I do not accept the submission for Mr Roberts that the abatement notice was invalid, on any of the asserted grounds. The appeal against conviction on the abatement notice charge must fail.
The herd homes charge
(a) Introduction
[41] I turn now to consider Mr Roberts’ appeal against conviction on the herd homes charge. This charge was amended at the hearing so as to allege a continuing offence by the intermittent discharge of effluent between 16 and 21 September 2011. A discharge on 21 September was admitted, but the Council was put to proof as to a discharge on the preceding days.
[42] The Judge referred to, and summarised, the evidence given by Council monitoring officers Mr Dacre, Mr Wright, and Mr Senington, and that given by Mr Blackburn.17 He also referred to the evidence given by Mr Roberts, noting his evidence that the farm manager and other workers had made no mention of overflow problems in and around the herd homes prior to 21 September, and that he believed they would have told him if any problems had actually occurred then.18 The Judge concluded:19
The offences are of strict liability, and the evidence of the [Council’s]
witnesses to the effect that the illegal discharges had been occurring since 16
September 2011, were not at all undermined. The fact that the farm manager and workers might not have mentioned to [Mr Roberts] the existence of
them between 16 and 20 September, does not call in question the clear evidence of the Council witnesses as to what they saw and photographed. ...
[43] Ms Hyndman presented Mr Roberts’ oral submissions on this aspect of the
appeal. She submitted that:
(a) There was no direct evidence of any discharge from the herd homes during the period from 16 to 20 September 2011;
17 At [25]–[31].
18 At [23].
19 At [34].
(b)Evidence from Council monitoring officers to the effect that there had been discharge during that period was inadmissible opinion evidence; and
(c) The evidence of an engineer, Mr Blackburn (accepted as expert evidence) was flawed in that it was based on the (unreliable) evidence of the Council monitoring officers, and failed to take into account the impact of the possible ground water ingress, and the possibility of a blockage in the basement bunker.
(b) Was there direct evidence of a discharge during the period from 16 to 20
September 2011?
[44] Three Council monitoring officers gave evidence: Mr Dacre (who visited on
16 September 2011), and Mr Wright, and Mr Senington (who inspected the farm on
21 September). Although the Judge recorded that Mr Senington had visited the farm on 19 September 2011, counsel agreed that while he did visit the farm on 19
September, that was to serve an abatement notice on Mr Roberts, not to inspect. His evidence related to his inspection on 21 September 2011. Mr Dacre, the monitoring officer who visited the farm on 16 September, said that a discharge of effluent had occurred from the area in front of the herd homes, but did not inspect the herd homes themselves. No monitoring officers visited the farm between 16 September (Mr Dacre) and 21 September (Mr Wright and Mr Senington). There was, therefore, no direct evidence of discharges of effluent from the herd homes during the period 17 to
20 September.
(c) Was the Council officers’ evidence inadmissible?
[45] Both Mr Wright and Mr Senington said in evidence that the quantity of effluent they observed at or around the herd homes was such as to be consistent with at least intermittent discharge from the herd homes during the period after Mr Dacre’s visit. Mr Wright referred to the depth of effluent observed in the herd home, and the volume of flowing effluent and said that effluent must have been overflowing from the basement of the herd home, at least intermittently, for at least six days.
[46] Mr Senington said in his evidence that the area between the two herd homes was thick with effluent which was discharging into a drain, and that the basement of the western herd home was completely full of effluent, and overflowing out onto both the front and rear of the structure. Mr Senington then said that “in my view”, the effluent in, and flowing from, the western herd home was far too messy, and of far too great a volume to have commenced on 21 September.
[47] Counsel advised this Court that the admissibility of Mr Wright’s and Mr Senington’s evidence was challenged at the hearing in the District Court, on the basis that it was in both cases opinion evidence, and neither was qualified to give expert opinion evidence. Although the Judge summarised their evidence, there is no reference to the admissibility challenge in the substantive judgment, and no ruling as to whether it was admissible or (if admissible) the weight he attached to the evidence.
[48] Ms Hyndman submitted that neither Mr Wright nor Mr Senington was qualified as an expert witness, and that neither had made any reference to their obligations under the Code of Practice for Expert Witnesses. In the circumstances, she submitted, the opinion evidence given by each of them as to the period of discharge was inadmissible.
[49] Ms de Silva submitted that there was sufficient evidence on which the Judge could find that a continuing offence had been proved beyond reasonable doubt. Regarding the evidence of Messrs Wright and Senington, she submitted that both were well qualified to express their conclusions from their observations.
[50] With respect to Ms Hyndman’s submissions, the admissibility of Mr Wright’s and Mr Senington’s evidence did not necessarily rest on it being expert evidence. The starting point is s 23 of the Evidence Act 2006, pursuant to which “[a] statement of opinion is not admissible in a proceeding, except as provided by s 24 or 25”. Section 24 is as follows:
24 General admissibility of opinions
A witness may state an opinion in evidence in a proceeding if that opinion is necessary to enable the witness to communicate, or the fact-finder to understand, what the witness saw, heard, or otherwise
perceived.
Section 25 provides, as relevant:
25 Admissibility of expert opinion evidence
(1) An opinion by an expert that is part of expert evidence offered in a proceeding is admissible if the fact-finder is likely to obtain
substantial help from the opinion in understanding other evidence is the proceeding or in ascertaining any fact that is of consequence to
the determination of the proceeding.
...
[51] The authors of The Evidence Act 2006: Act and Analysis state with respect to s 24:20
In general, non-expert opinion evidence will be accepted where the perceptions and statements of fact of the witness are conclusions in themselves, or where there is a mixture of inference and fact that cannot be separated. ...
In both criminal and civil trials, Courts in New Zealand have never had any particular problem in admitting statements by witnesses that consist of inferences based on perceived facts. ...
Whether a non-expert opinion should be admitted is determined on the particular facts of each case. Although there are usually few difficulties for the courts in this area, there may occasionally be issues in deciding if proposed evidence is non-expert opinion evidence (permitted under s 24) or expert opinion evidence (subject to the requirements of s 25). ... The dividing line appears to be based in large measure upon both the necessity for the witness to express an opinion in order to describe facts personally perceived, and the basis for the opinion in question. Therefore, if the opinion is one based on facts personally perceived and necessary to explain those facts, then admissibility will be determined under s 24. If it is based on experience that lay people would not be expected to have, and where the opinion is not necessary to explain factual observations relating to the current case, then the inference and fact can more easily be separated and admissibility should be determined under s 25.
[52] It is helpful to set out the evidence.
(a) Mr Wright set out his qualifications and experience in his statement of evidence:
...
2.I have been employed by the [Council] since July 2001 as an environmental monitoring officer – farm waste. I am a warranted enforcement officer under section 38 of the [RMA].
20 Richard Mahoney and others The Evidence Act 2006: Act and Analysis (2nd ed Thomson Reuters, Wellington, 2010) at [EV24.02] (footnotes omitted).
3.My job involves management of the farm dairy effluent monitoring program for Northland.
4.I have done over 3000 farm visits in the time I have worked in this job. The visits included routine compliance monitoring, advisory visits at the request of farmers, “follow-up” visits to “significantly non-compliant farms” and investigations following complaints from the public.
5.I previously worked for 27 years in dairy product processing at the then Northland Dairy Co-operative Dairy Co Ltd (NDC).
6.I have qualifications in dairy technology and dairy factory management. I have extensive knowledge of milk processing systems which include a wide range of pumps and other highly technical processing equipment.
7.I was production manager for ten years at the Maungaturoto site of NDC doing production management and project management. The projects I worked on included the installation of effluent treatment and disposal systems at NDC’s Maungaturoto and Kauri sites.
...
In a supplementary statement of evidence, Mr Wright said:
...
2.When we visited the farm on 21 September 2011, there was a large volume of effluent above the floor level in the Western Herd Home and a large volume of effluent which had discharged from the basement through the floor and to the area in front of the Herd Home.
3. The depth of the effluent above floor level in the Western
Herd Home varied across the floor from approximately
15mm at the back end [of] the Herd Home floor to 35mm at the front end. The effluent was much deeper immediately in front of the floor as shown in photo 20. Effluent from the basement also discharged to the area behind the Herd Home. The effluent discharge can be seen in photo 26. There was a large volume of effluent from the basement which had flowed into the paddock behind the Herd Home. This can be seen in photos 27 and 28.
4.Considering the area of the floor in the Herd Home, the depth of the effluent which flowed to the areas in front of and to the rear of the western Herd Home it is my opinion that effluent from the basement must have been overflowing, at least intermittently for at least the six days referred to in the information laid and more likely considerably longer.
As noted in his evidence, Mr Wright referred to photographs of the herd homes and the surrounding area, taken on 21 September 2011.
(b) Mr Senington set out his qualifications and experience in his statement of evidence:
...
2.I have been employed by the [Council] since April 2011 as an environmental monitoring officer – farm waste. I am a warranted enforcement officer under section 38 of the [RMA].
3.I have a Bachelor of Science honours degree in Biological Science from Plymouth University. I have worked in environmental enforcement for the last 8 years both in local and central government in the United Kingdom and New Zealand.
4.My job involves monitoring and assessing dairy farm effluent systems against resource consent conditions and permitted activities criteria. I also provide information on the construction and management of farm dairy effluent systems.
5.I have done at least 300 farm visits in the time I have worked in this job. The visits included routine compliance monitoring, incident investigations, follow up visits and owners request for advice.
6. I previously worked for the Environment Agency (UK), Plymouth
City Council (UK) and Hamilton City Council.
Regarding his visit to the farm, and observation of the herd homes on 21 September
2011, Mr Senington went on to say:
11. I inspected the Roberts Farm with Mr Wright on 21 September 2011.
12.Mr Wright and I arrived at the farm property (FDE 1625) at approximately 10.45 am.
13.Mr Wright and I stopped at the farm house and introduced ourselves to Mr Roberts and showed our warrants. Mr Wright explained that we were on site to check on compliance with the abatement notices.
14.We took photos during our inspection and took water quality readings and samples.
...
19.I saw that the areas between the Herd Homes and the dairy was thick with farm dairy effluent, this can be seen on photo 31. The effluent was discharging straight into a drain which ran between the Herd Homes and the dairy, this can be seen in photo 34 and 37. This drain flowed in a north-east direction. This drain is labelled as “Drain 1” on the aerial photo.
20.The basement of the western Herd Home was completely full of effluent and effluent was overflowing out of the western Herd Home and onto the area in front and to the rear of the Herd Homes. It was not possible to see the floor grating of the western Herd Home due to the excess effluent. This can be seen in photos 19 to 21.
21.The basement of the eastern Herd Home was not full and the grating of the floor was clearly visible. This can be seen in photos 22 and
23.
22.Down pipes on the eastern Herd Home were broken, this can be seen in photo 25. The broken down pipe is circled in photo 25. As a result stormwater would discharge onto the area in front of the Herd Homes and the stormwater would flush the effluent in this area into Drain 1.
...
24Effluent was flowing from the rear of the western Herd Home due to the basement being completely full, this can be seen in photos 26 to
28. This effluent flowed across land towards the adjacent race. There were large pools of effluent.
In a supplementary brief of evidence, Mr Senington said:21
...
2.I refer in paragraphs 19 – 21 and 24 of my [statement of evidence] to my inspection of both Herd Homes on 21 September 2012.
3.In my view, the effluent in the western Herd Home and flowing out of the front of the western Herd Home was far too messy and of too great a volume for the discharge from the western Herd Home to have commenced on 21 September.
4. A lot of effluent had flowed out the back of the western Herd Home.
If the discharge from the western Herd Home only just started to happen on 21 September then the discharge from the back of the
western Herd Home would have been only a small trickle.
[53] It is also helpful to refer to Mr Dacre’s evidence as to his observations of the herd homes on 16 September 2011. Since 2003, Mr Dacre has had a farm dairy effluent monitoring contract for the Council. In the period since that time, he has made over 8,200 dairy farm visits to inspect effluent systems. He took photographs during his visit on 16 September 2011. His evidence regarding the herd homes was:
...
32At the dairy I saw that the area between dairy and the herd homes was a mess – there was a lot of accumulated effluent. This effluent
21 There was no issue as to the date of “21 September 2012” in para 2 being an error, and that Mr
Senington intended to refer to his visit on 21 September 2011.
can be seen in photos 1 and 2. There was effluent in the drain that flows from the dairy (photos 3 and 4). Following this drain I found that effluent was reaching water (photos 5, 15 and 16).
In a supplementary statement of evidence Mr Dacre said, regarding the discharge of effluent from the herd homes:
...
2.The closest I got to the western herd home was at the raceway from the dairy (approximately 30 metres away).
3.I did not go into the herd homes. My attention was focused on the area in front of the herd homes.
4.My attention was focused on the area in front of the herd homes because there was a lot of effluent in this area.
...
12. I have looked at the photos taken by the Council officers on 21
September 2011. Looking at photos 26 – 28 in particular, I can say that in my opinion, the herd homes had been discharging for a number of days at least.
[54] The Council witnesses were all cross-examined. Mr Wright was challenged, in particular, on the basis on which he estimated the depth of the effluent, and on which he estimated the duration of the discharge. As to the former, he said “it’s an estimate based on my knowledge and my experience of how long my gumboots are and where the effluent comes to on my gumboots.” Mr Wright acknowledged that the calculation for the purposes of the present prosecution was done by looking (at a later date) at his photographs.
[55] As to his conclusion that the discharge from the herd homes had occurred intermittently for at least the period 16 to 21 September 2011, Mr Wright responded:
I’m making an estimate based on my experience over 11 years of seeing effluent discharges. ... The estimate I made is based on my observations of what was above the floor in the herd homes, on the volume of effluent that was in front of the floor of the herd homes, what went out the back of the herd homes and basically my knowledge of things effluent, including the fact that the industry guideline for effluent volumes from the cow is 3.4 litres per cow per hour. ...
[56] Mr Senington was also challenged as to his qualifications to express an opinion as to the duration of the discharge, to which he responded that it was:
Only from my experience with dealing with effluent for the last couple of years. ...I’m fully aware of how much effluent comes out of a cow per hour. I’m fully aware of the surface area of the herd homes. I’m fully aware of what we suspect is the length of time with – that the cows are on there so if its five hours, surface area of a herd home is 600 square metres, 3.4 litres per hour of effluent coming out of a cow, that works out for two centimetres about three and a quarter days worth of effluent to fill two centimetres.
[57] Ms Hyndman drew my attention to Mr Senington’s response to a question in cross-examination, which was “I would’ve thought I’d be in a position to give an educated guess to say how much effluent had piled up”.
[58] Mr Dacre was also challenged as to his qualifications and the basis of his opinion that the herd homes had been “discharging for a number of days, at least”. He said:
Having done thousands of farm inspections, spent the last nine years spending all my time for five months looking at effluent, looking at feed pads, herd homes, dairies, sumps, races, what happens, visual observation. ... My opinion [is] derived from what I see.
[59] The Judge’s references to “the clear evidence of the Council witnesses as to what they saw and photographed”22 indicates that the Judge considered their evidence as “non-expert opinion evidence” under s 24 of the Evidence Act, rather than as “expert opinion evidence”. I am not persuaded that he was wrong to do so. It was evidence of fact (in the form of the effluent seen, described, and photographed) from which each witness drew an inference as to how long the discharge had occurred.
[60] Further, I am not persuaded that the Judge erred in accepting the evidence of the Council witnesses. In the light of their considerable experience in monitoring farm dairy effluent (particularly in the cases of Mr Wright and Mr Dacre), the Judge was entitled to find their evidence reliable, and to accept the inferences they drew from the facts.
[61] I do not accept the submission that Mr Wright’s evidence as to the depth of
the effluent in the herd homes was unreliable as a result of having been estimated by measuring where the effluent came to on his gumboots. While the depth could have
22 Substantive judgment, above n 1, at [34].
been measured on the day by using a probe, or a similar measuring device, Mr Wright’s evidence was that he knew the dimension of his boots, and was therefore able to use them as a “ready at hand” measure. Nor do I accept that Mr Senington’s reference to his ability to make an “educated guess” renders his evidence unreliable, or inadmissible. In fact, Mr Senington was not guessing, he was drawing an inference from observed facts, in the light of his experience.
[62] I therefore reject Ms Hyndman’s submission that the evidence of the Council officers was inadmissible opinion evidence. It was admissible under s 24 of the Evidence Act.
[63] In the light of that conclusion, it is not necessary to consider Ms Hyndman’s further submission, as to the absence of any reference by the Council’s monitoring witnesses to the Code of Practice for Expert Witnesses. I observe, first, that their training and “on the job” experience would, in my view, have been sufficient to qualify each of them as “expert witnesses” in the field of farm dairy effluent. In that event, having made no reference to the Code of Practice, their evidence could be
offered only with the leave of the court.23 The Judge having heard their evidence,
and referred to it in the substantive judgment, it is apparent that the evidence of the
Council witnesses was adduced with the leave of the court.
(d) Mr Blackburn’s evidence
[64] Mr Blackburn is a civil engineer in practice in the firm Hawthorn Geddes, in Whangarei. He initially prepared a report in relation to the herd homes in response to a report prepared by another engineering firm Tonkin & Taylor, instructed by Mr Roberts’ solicitors, in support of a defence (of mechanical failure) under s 341 of the RMA. That defence was later abandoned, but Mr Blackburn’s report was presented in evidence in the District Court, and he was cross-examined.
[65] Mr Blackburn had not inspected the herd homes, but prepared his report on the basis of the plans for the herd homes, the material in the Tonkin & Taylor report,
discussions with Mr Wright and viewing the photographs taken by Mr Dacre and
23 High Court Rules, r 9.43(3).
Mr Wright, and discussions within his firm concerning the design of herd homes. In a supplementary report, Mr Blackburn said:
It is clear from the [Council’s] photographs of 21st September 2011 that effluent within the western [herd home] was above the floor grate and overflowing. The construction of the [herd homes] is such that a discharge would occur from the bunker at a level of up to 200mm below the grate level. Effluent in the photographs of 21st September 2011 is above the grate level, ie at least 200mm above the design level at which a discharge could occur.
Using the effluent level accumulation rate estimated previously ... conservatively at 9mm per day, in the absence of the losses associated with physical discharge, the 35mm effluent depth above the grate (evidence of [Mr Wright]) represents a minimum of 4 days of [effluent] accumulation. This accumulation ignores the potential for overflow associated with the ramp void step ... which at a design height of 200mm would represent at least a further 22 days of accumulation, without considering the discharge losses. ...
[66] Mr Blackburn concluded:
Based on effluent accumulation calculations established in previous correspondence, dairy effluent discharge from the western [herd homes] bunker would have been occurring for a significant period of time prior to the inspection and photographs of 21st September 2011. ...
I am of the opinion that the [effluent] overflow discharge from the western [herd home] will have been occurring for a period since before the first [Council] inspection of 16th September ...
[67] I turn first to Ms Hyndman’s submission that Mr Blackburn’s evidence was flawed as a result of his having relied on Mr Wright’s estimate of the depth of the effluent in the western herd home. I have found that the Judge was entitled to rely on Mr Wright’s evidence. It follows that Mr Blackburn could also rely on it.
[68] In cross-examination it was put to Mr Blackburn that he had failed to take account of two matters: the impact of possible ingress of groundwater into the basement bunker, and the possibility of there being a blockage in the bunker, which would prevent liquids being drained out of it. Mr Blackburn considered it “very unlikely” that groundwater would have been able to get into the bunker (for example through joints between the concrete panels which formed the sides of the bunker, or cracks in the panels), but agreed that he could not rule that out completely. Further, he said he would be “very surprised” (although he could not categorically discount
the possibility) that groundwater ingress could raise the level of fluid under the solid layer of effluent, thus raising the solid layer.
[69] It was also put to Mr Blackburn that grass fibre in the bunker could act as a blockage preventing liquids from being drained out of the basement bunker. Mr Blackburn said that grass fibre, and the fibrous and solid content of effluent would slow the rate of transfer of the liquid portion of the effluent in a drainage mechanism, but did not accept that it would prevent it. He also said that if it were the case that groundwater was allowed into the bunker through joints or cracks, then it was also the case that liquid effluent would be allowed to escape out of the bunker.
[70] Having reviewed Mr Blackburn’s evidence, I reject Ms Hyndman’s submission that his conclusions are flawed. The Judge was entitled to accept his evidence and to conclude that there was no real possibility of groundwater ingress, or blockage, affecting Mr Blackburn’s calculations as to the accumulation of effluent.
(e) Conclusion as to appeal against conviction on the herd homes charge
[71] I do not accept the submission for Mr Roberts that there was insufficient admissible evidence on which the Judge could find that there had been intermittent discharge of effluent from the herd homes during the period from 16 to 21
September 2011 and that, therefore, the Council had established a continuing offence. The appeal against conviction on the herd homes charge therefore fails.
Appeal against sentence
District Court sentencing
[72] Mr Roberts’ sentencing proceeded on the basis of an agreed summary of facts (accompanied by a bundle of annexures), arrived at following discussions between counsel over the two days before the sentencing hearing. The Judge also heard extensive submissions from counsel for Mr Roberts and the Council, and was presented with a “very considerable” volume of material, and referred to a number of
cases.24
24 See sentencing judgment, above n 2, at [1], [13] and [31].
[73] After setting out the background facts, the Judge referred to the relevant sentencing principles specifically in the context of RMA appeals,25 and as set out in ss 7 to 9 of the Sentencing Act 2002, then referred to counsel’s submissions. He then referred to the effect of the offending on the environment, in particular as disclosed from the analysis of water samples. The Judge accepted a submission on behalf of the Council that the offending was deliberate, in that Mr Roberts’ farm operations
were matters that “effectively [Mr Roberts] brought upon himself and were essentially ordained by him, and the outcomes have naturally flowed from that approach.”26 The Judge considered that the infringement notices previously issued to Mr Roberts were to be regarded as aggravating factors.
[74] The Judge then commented on Mr Roberts’ financial circumstances, noting that a reduction in fine was sought under s 40 of the Sentencing Act. He referred to the steps taken to obtain financial information which was then analysed by the forensic accountant, Mr Parsons. The Judge also considered Mr Roberts’ remorse, and his guilty pleas to three of the charges.
[75] On the issue of penalty, the Judge first referred to the judgment of Judge Whiting in Waikato Regional Council v GA & BG Chick Ltd,27 and stated that Mr Roberts’ offending fell within level 3 (“more than moderately serious”) as described in that judgment. The Judge then referred in particular to two sentencing decisions referred to in counsel’s submissions: Northland Regional Council v Stanaway,28 and
Southland Regional Council v Talisker Farms Ltd.29
[76] The Judge considered the offending in two groups: first, the two “one-off”
offences (CRN -374 and -375), then the three “continuing offence” charges (CRN -
372, -373, and -376).30 Within each group, the Judge considered the offending on a global basis. For the first group the Judge adopted a starting point of $37,000, then
25 Referring to Machinery Movers Ltd v Auckland Regional Council [1994] 1 NZLR 492 (HC) and
R v Kiwi Drilling Co Ltd (1997) 4 ELRNZ 23 (CA).
26 Sentencing judgment, above n 2, at [22].
27 Waikato Regional Council v GA & BG Chick Ltd (2007) 14 ELRNZ 201 (DC).
28 Northland Regional Council v Stanaway DC Whangarei CRN 10011500123, 125-129, 132,
136,088-092, 096 and 108, 20 February 2011.
29 Southland Regional Council v Talisker Farms Ltd DC Invercargill CRI 2010-025-2498 and
2499, 17 December 2010.
30 This division reflected those offences where Mr Roberts had insurance cover (the “one-off”
charges) and those where he did not (the “continuing” charges).
applied a 25 per cent discount on account of Mr Roberts’ guilty pleas, to arrive at a fine of $27,750. No further adjustment was made, as the Judge concluded that the uplifts and reductions relating to the offending and Mr Roberts cancelled each other out.31 For the second group, the Judge adopted a starting point of $110,000. He declined to give a discount for Mr Roberts’ guilty plea on the charge of discharging a contaminant (effluent) from the area in front of the herd homes (CRN -372), because
that plea was entered at a very late stage. Again, the Judge said, the uplifts and discounts to be applied cancelled each other out.32
[77] The Council had sought an order for reimbursement of the charges made by Mr Blackburn and Mr Parsons. The Judge accepted that the Council was entitled to be reimbursed for both. He apportioned Mr Parsons’ charges across all five charges ($3507 for the first group of charges and $5260.50 for the second group), and Mr Blackburn’s charges ($10, 557) across the three “continuing” charges.
[78] Finally, after further considering Mr Roberts’ financial circumstances, the
Judge declined to reduce the fines, but ordered that they be paid in instalments over
12 months.33 As noted earlier, the Judge directed that 90 per cent of the fines was to be paid to the Council.
[79] Before discussing the submissions on appeal, I record that at the appeal hearing I raised with counsel an issue as to whether further submissions may be required. This was because sentencing in the District Court, and counsel’s written submissions filed in this Court, was on a “global” basis for each group of convictions. The appeal submissions may have needed amendment in the event that one or both of the convictions were overturned on appeal. In the light of my conclusion that both appeals against conviction must fail, it has not been necessary
to call for further submissions.
31 Sentencing judgment, above n 2, at [32]–[33].
32 At [34].
33 At [35].
Submissions on appeal
[80] Written submissions were filed by Ms Hyndman and Ms de Silva, accompanied by sentencing authorities. Ms de Silva’s submissions included a schedule of sentences imposed after convictions for effluent discharge silage leachate. I also heard brief oral submissions from both counsel.
[81] Ms Hyndman submitted for Mr Roberts that the overall financial penalty
$157,074.50 was manifestly excessive. While acknowledging that in a sentence appeal the focus is on the end sentence rather than on an analysis of how that sentence was arrived at, Ms Hyndman’s submissions on the sentence appeal comprised a detailed examination of several aspects of the sentencing decision.
[82] Ms Hyndman submitted that the starting points were too high, and did not allow for the significantly different maximum penalties available as between “corporate” and “individual” offending when considering comparison cases, and referred to cases of “more culpable offending” which had resulted in lesser fines. She further submitted that the Judge failed to give sufficient discount for mitigating factors, should have allowed a guilty plea discount for CRN -372, failed to appropriately address “disputed facts” and failed to apply s 24 of the Sentencing Act, failed to give credit for remedial work, failed to give credit for Mr Roberts’ having insurance cover, erred in his consideration of Mr Roberts’ remorse, erred in finding that the offending was deliberate, failed to consider the totality principle (in relation to the fines, and the reimbursement of charges), and failed to reduce the penalty to account for Mr Roberts’ financial circumstances.
[83] Ms de Silva submitted that the starting points were justified and the fines (individually or globally) were not manifestly excessive. She also responded to each of the submissions made by Ms Hyndman, as to the sentencing process. In particular, she submitted that no discount was warranted for the guilty plea on CRN -372 (as it was entered on the day the defended hearing began), and she submitted that the Judge had not failed to address disputed facts, had not erred in finding that the offending was deliberate, and had taken Mr Roberts’ financial circumstances into account.
Approach on appeal
[84] Pursuant to s 121(3)(b) of the Summary Proceedings Act 1957, this Court may quash or vary a sentence where it is “clearly excessive or inadequate or inappropriate”. This Court will not intervene where the sentence can properly be justified by accepted sentencing principles.
Starting points
[85] On each of the offences on which he was convicted, Mr Roberts was subject to a maximum penalty of two years’ imprisonment or a fine of $300,000.34 For the two offences of discharging effluent from one of the herd homes, and from the area in front of the herd homes, between 16 and 21 September, Mr Roberts was also subject to a daily fine of $10,000, so that for those two offences the maximum available penalty was $360,000.
[86] In Chick (decided before the increase in penalty), it was suggested that the appropriate starting point for sentencing on a “level 3” charge was $30,000 or more.35 In Stanaway (also decided before the maximum penalty was increased) a starting point of $100,000 was adopted on seven convictions for discharging effluent and one conviction for breaching an abatement order. The Judge in that case identified deliberate offending, extensive environmental damage, and a history of non-compliance.36 In Talisker (decided after the increase), a starting point of
$150,000 was adopted for sentencing a corporate defendant convicted on five charges of discharging dairy shed effluent.37
[87] I have concluded, first, that the Judge did not err in placing the offending in level 3 of Chick. Taking into account the number and extent of the discharges, and the severe effect on the environment, that category is appropriate. I also note the comment of Mackenzie J in Yates v Taranaki Regional Council, that in cases involving effluent discharges there is “a clear pattern of increasing concern as to the
seriousness of this category of offending, and as to the need for sentences which
34 The maximum penalty was increased from two years’ imprisonment or a fine of $200,000 as from 1 October 2009 pursuant to the Resource Management (Simplifying and Streamlining) Amendment Act 2009.
35 Waikato Regional Council v GA & BG Chick Ltd, above n 27, at [26].
36 Northland Regional Council v Stanaway, above n 28.
37 Southland Regional Council v Talisker Farms Ltd, above n 29.
reflect the sentencing purposes of deterrence.”38 Nor am I persuaded that the Judge erred in finding that the offending was deliberate. Mr Roberts was well aware, from previous inspections, abatement notices, and infringement notices, of discharges of effluent on his farm. As the Judge said, the farm operations were in Mr Roberts’ hands, but he did not ensure that the discharges ceased. The consequences of that failure can only be seen as deliberate.
[88] Reference to Ms de Silva’s schedule and the following authorities demonstrates that starting points in the range of $30,000 to $60,000 have been adopted for individual offenders, after conviction on either one or two charges. In Sullivan v Taranaki Regional Council, a starting point of $60,000 was upheld on appeal, for two convictions for discharging effluent onto land, where culpability was
considered high.39 In Otago Regional Council v Plakmaj Holdings Ltd, the director
of the company responsible for the operation of the effluent system and the herd manager were both convicted on one charge of discharging effluent. The offending was not considered to be deliberate, and starting points of $35,000 (for the director) and $30,000 (for the manager) were adopted.40 In Watt v Southland Regional Council, involving conviction on one charge of discharging dairy effluent in circumstances resulted in it entering a nearby waterway, starting points of $60,000
(for Mr Watt, who was responsible for the irrigation system) and $35,000 (for Mr
Cabral, who managed the system on a day to day basis) were upheld on appeal.41
[89] Seen against those examples (and taking the particular circumstances of the present case into account and the number of charges in each of the groups), the starting points adopted by the Judge are clearly within the available range for an individual offender.
Adjustments
[90] Turning now to the adjustments made to the starting points, it must first be noted that it is not the case here that the Judge failed to make deductions for certain
38 Yates v Taranaki Regional Council HC New Plymouth CRI 2010-443-8, 14 May 2010 at [15].
39 Sullivan v Taranaki Regional Council [2013] NZHC 1301.
40 Otago Regional Council v Plakmaj Holdings Ltd DC Invercargill CRI 2010-017-245, 246 and
257, 26 July 2010.
41 Watt v Southland Regional Council [2012] NZHC 3062.
factors, or to give credit for others. As is apparent from the sentencing decision, the Judge concluded that in each group, the uplifts and discounts cancelled each other out. Uplifts were required for the aggravating factors of the seven infringement notices issued between 2005 and 2009. A further uplift was justified to take account of the fact that in this case, there was an actual discharge to water which (as the tributaries on the farm flow into the Ahuroa River which joins the Waipu River which then flows into Bream Bay) supports recreational activities.
[91] The Judge gave Mr Roberts credit for having been co-operative in interviews and discussions, and having actively sought advice from Council officers, for his remorse, and for the “fairly considerable and costly efforts made since the offending in a continuing endeavour to remedy the problems on the land”.42 However, the discount in respect of the last factor had to be limited, as those efforts are generally not “necessarily giving rise to a reduction in penalty because it is putting the situation right and as it should have been in the first place.”43 I reject the submission that the Judge failed to give sufficient credit for mitigating factors.
[92] Further, I reject Ms Hyndman’s submission that the Judge ought to have applied a discount to reflect the fact that Mr Roberts had insurance cover. That submission relied on two judgments, Auckland Regional Council v Gubbs Motors Ltd,44 and Canterbury Regional Council v Canterbury Greenwaste Processors Ltd.45
In Canterbury Greenwaste, Judge Kellar reviewed Gubbs and other authorities
concerning the relevance of insurance cover at sentencing and concluded:46
The following principles seem to emerge from an analysis of those cases. Where an offender has insurance which may be applied towards the carrying out of remedial works to remedy or to mitigate environmental effects a discount of between 10 and 15 percent may be appropriate to recognise those factors: ...
42 Sentencing judgment, above n 2, at [30].
43 See Canterbury Regional Council v R J Dairy Farming Ltd DC Christchurch CRI 2013-076-
559, 19 August 2013 at [16] per Judge Dwyer.
44 Auckland Regional Council v Gubbs Motors Ltd DC Auckland CRN 08088500246 and 006, 20
March 2009.
45 Canterbury Regional Council v Canterbury Greenwaste Processors Ltd DC Christchurch CRI
2012-009-9818, 9819 and 9820, 24 April 2013.
46 Canterbury Regional Council v Canterbury Greenwaste Processors Ltd, above n 44, at [81].
[93] In the circumstances of this case, I am not persuaded that the Judge was wrong to conclude that the uplifts and discounts in each group of convictions cancelled each other out.
[94] Nor am I persuaded that the Judge failed to give appropriate consideration to disputed facts. As noted earlier, the sentencing proceeded on the basis of an agreed statement of facts. The issue referred to in Ms Hyndman’s submissions (whether Mr Roberts was instructed by a Council officer that he could not block drains in order to contain effluent) is covered in the statement of facts. In light of the agreement, the Judge was not asked to make a ruling on the point, and there can be no issue as to compliance with s 24 of the Sentencing Act.
[95] In relation to the discounts for Mr Roberts’ guilty pleas, I accept Ms de Silva’s submission that the Judge did not err in refusing to give a discount for his guilty plea in CRN -372. I accept her submission that it was as late as 11 February
2013 that Mr Roberts withdrew his s 341 defence (notified on 28 September 2012), and asked the Council to amend the charges by separately alleging discharges of effluent “in front of the herd homes”, and “from the herd homes”. The guilty plea on the charge of discharge from the area in front of the herd homes was then entered on
14 February 2013, the first day of the defended hearing. While it was open to the Judge to allow a discount for this guilty plea it would, given the timeframe, have been no more than nominal. I am not persuaded that the Judge’s refusal to give a discount has resulted in a manifestly excessive sentence.
Mr Roberts’ financial circumstances
[96] The Judge ordered that Mr Roberts could pay the fines by instalments, over
12 months. Ms Hyndman submitted that after finding that Mr Roberts’ financial situation was “undeniably tight”, the Judge should have reduced the fines on the grounds of Mr Roberts’ financial circumstances, under s 40 of the Sentencing Act. She submitted that allowing payment by instalments does not constitute a reduction of the fine.
[97] Ms de Silva submitted that the Judge properly considered Mr Roberts’
financial circumstances. She also noted that Mr Parsons had set out, in his report,
the options available to Mr Roberts to pay the fines for the three convictions not covered by insurance.
[98] The Judge noted in the sentencing judgment that Mr Parson’s evidence had identified that indemnity was available from the trusts that owned the farm properties – albeit recognising that the financial circumstances of the trusts “[wasn’t] great”.47 It is apparent that the Judge rejected the submission that the fines should be reduced on the grounds of a lack of ability to pay, given that Mr Roberts could be indemnified by the trusts. However, in ordering Mr Roberts to pay the fines by
instalments, the Judge was recognising the trusts’ circumstances.
[99] That conclusion was open to the Judge. I am not persuaded that he was wrong to order payment by instalments, but not reduce the fines.
Conclusion as to fines imposed
[100] I am not persuaded that the fines imposed, for either group of offending, were manifestly excessive.
The orders in relation to Mr Parsons’ and Mr Blackburn’s costs
[101] In their written sentencing submissions in the District Court, neither counsel referred to the statutory or regulatory provisions under which an order for payment of Mr Parsons’ and Mr Blackburn’s costs (“the specific costs”) were sought or opposed. Ms de Silva submitted in the District Court that the order in relation to the specific costs was justified by Mr Parsons’ conclusions and Mr Roberts’ vigorous opposition to disclosure of information, while the order for Mr Blackburn’s costs was sought because of the late withdrawal of Mr Roberts’ s 341 notice of defence and the outcome of the defended hearing. Ms Hyndman’s submissions simply noted that an order to pay the informant’s expenses and costs should be taken into account when setting the overall penalty.
[102] In ordering Mr Roberts to pay the specific costs, the Judge only recorded his
finding that “the Council is entitled to reimbursement of the charges made...”48 He did not specify the statutory provision applied, or give reasons for the finding.
47 Sentencing judgment, above n 2, at [35].
48 Sentencing judgment, above n 2, at [33].
[103] Ms Hyndman submitted on appeal that the Judge was wrong to order Mr Roberts to pay the specific costs – or at least, should not have ordered him to pay those costs in full. She submitted that Mr Parsons’ costs could not be ordered under the Costs in Criminal Cases Act 1967 (“the CCC Act”), as they were not “expenses properly incurred by a party in carrying out a prosecution ...”49 If his costs were “properly incurred”, she submitted, they should not have exceeded the scale set out in the Act. She submitted that Mr Blackburn’s costs (which she acknowledged were “properly incurred”) should not have exceeded the scale.
[104] Ms Hyndman further submitted that costs could not have been ordered under ss 339(5) and 314(1)(d) of the RMA (which provide that an order may be made for payment of “the costs of investigation, supervision, and monitoring of the adverse effect on the environment, and the costs of any actions required to avoid, remedy, or mitigate the adverse effect”).
[105] Ms de Silva submitted, in essence, that the submissions for Mr Roberts were misconceived. First, costs were not sought under ss 339 and 314 of the RMA. Secondly, the costs Mr Roberts was ordered to pay were the costs of the Council’s two expert witnesses.
[106] In the light of Ms de Silva’s submission that costs were not sought under ss 339 and 314 of the RMA, an order for payment of the specific costs could only have been made under the CCC Act. Section 4(1) of the Act provides:
Where any defendant is convicted by any Court of any offence, the Court may, subject to any regulations made under this Act, order him to pay such sum as it thinks just and reasonable towards the costs of the prosecution.
“Costs” is defined in s 2 of the Act as “any expenses properly incurred by a party in carrying out a prosecution”.
[107] Schedule 1 to the Costs in Criminal Cases Regulations 1987 (“the CCC Regulations”) sets out the scale of fees payable under the Act. Subpart C of the Schedule provides for “travelling expenses and costs incidental to the proceedings”.
It provides, as relevant:
49 Costs in Criminal Cases Act 1967, s 2.
Expenses that may be ordered to be paid under the Act are–
...
(b) all other disbursements reasonably and properly incurred, including– (i) fees, allowances, and expenses paid to witnesses and interpreters, which must not exceed the fees, allowances, and travelling expenses prescribed by the Witnesses and
Interpreters Fees Regulations 1974; and
(ii) the costs of enquiries, scientific and other investigations, and tests.
[108] The schedule to the Witnesses and Interpreters Fees Regulations 1974 (“the “Witnesses Fees Regulations”) sets out the fees payable, first in respect of the time required to give evidence (a maximum sum of $305.00), and secondly, in respect of time spent on analysis, reports, or other work necessary to prepare evidence ($33.00 for the first hour and $24.50 subsequently). As noted above, Ms de Silva submitted that the specific costs had been ordered on the basis that Mr Parsons and Mr Blackburn were expert witnesses.
[109] Section 13(3) of the CCC Act provides that the Court may make an order for payment of costs in excess of the scale if it is satisfied that “having regard to the special difficulty, complexity, or importance of the case, the payment of greater costs is desirable.” While the Witnesses Fees regulations sets out what can only be described as an inadequate scale of payment for expert witnesses, that is irrelevant to the determination of whether a case is of “special difficulty, complexity, or
importance”.50
[110] I reject Ms Hyndman’s submission that Mr Parsons’ costs were not “properly incurred in carrying out” the prosecution. To the contrary, I am satisfied that “the prosecution” extends to the sentencing phase.
[111] However, there was no finding, in respect of either Mr Parsons’ or Mr Blackburn’s costs as to any “special difficulty, complexity, or importance of the case”, nor that the specific costs were ordered as being “the costs of enquiries, scientific and other investigations”, rather than as “analysis, reports, or other work necessary to prepare evidence”. In the absence of such findings, I am not able to accept Ms de Silva’s submission that the order to pay them in full was correct. I have concluded that the proper order was for their costs to be ordered in accordance
with the Witnesses Fees scale. The order that Mr Parsons’ costs were to be
50 See Solicitor-General v Moore [2000] 1 NZLR 533 (CA).
apportioned across all five charges, and Mr Blackburn’s over the second group only, was not challenged and was appropriate.
Totality
[112] The final point of the appeal against sentence was that the Judge failed to consider the totality of the financial penalty, and whether it was wholly out of proportion to the overall offending.51 I have already found that the fines imposed by the Judge were not, individually or taken as a whole, excessive. Taking the overall penalty into consideration (and in particular in the light of my finding in respect of the order for costs) I am satisfied that the overall penalty was not wholly out of proportion to the totality of the offending.
Conclusion as to appeal against sentence
[113] With the exception of the order for payment of Mr Parsons’ and Mr Blackburn’s costs, the appeal against sentence is dismissed. The order for payment of those costs is quashed and they are to be paid according to the scale set out in the Witnesses and Interpreters Fees Regulations.
Result
[114] Time is extended for the appeals to be brought. The appeals against conviction on the charges CRN -373 and CRN -376 are dismissed. The appeal against sentence is dismissed, except in relation to the order for payment of Mr Parsons’ and Mr Blackburn’s costs, which are ordered to be paid by Mr Roberts in accordance with Schedule 1 of the Witnesses and Interpreters’ Fees Regulations
1974.
Andrews J
51 Sentencing Act 2002, s 85.
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