Sowman v Marlborough District Council - [2020] NZHC 1014

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CRI 2020-406-1

[2020] NZHC 1014

IN THE MATTER OF the Criminal Procedure Act 2011

AND

IN THE MATTER OF

an appeal against conviction and sentence under ss 232 and 250 of the Act

BETWEEN

JOHN WAYNE SOWMAN

Appellant

AND

MARLBOROUGH DISTRICT COUNCIL

Respondent

Hearing: 12 May 2020

Counsel:

M J Radich for Appellant

A C Besier and J Webber for Respondent

Judgment:

15 May 2020

JUDGMENT OF COOKE J

Table of Contents

Factual background[4]

Procedural background and disputed facts[16]

Decision under appeal[22]

Approach on appeal[27]

Approach to appeal concerning s 106[28]

Sentence appeal[32]

Discharge without conviction appeal[34]

Issue One: was the Judge entitled to take into account evidence from the disputed facts
hearing?[34]
Issue Two: Did the Judge err by failing to take into account further materials produced at
sentencing?[50]
Issue Three: Did the Judge err by treating the co-offenders differently?[56]

SOWMAN v MARLBOROUGH DISTRICT COUNCIL [2020] NZHC 1014 [15 May 2020]

Sentence appeal[62]

Issue One: Starting point appropriate?[63]

Issue Two: Discounts for mitigating factors[73]

Result[78]

[1] The appellant pleaded guilty to two charges under the Resource Management Act 1991 (RMA) for his part in the unlawful discharge of contaminants associated with activities at a vineyard:1

(a)One charge of contravening s 15(1)(b) of the RMA by discharging “grape marc” onto land in circumstances which may have resulted in the grape marc and “leachate” entering groundwater, and

(b)One charge of contravening s 15(1)(d) by discharging grape marc and leachate from industrial or trade premises onto land.

[2] Grape marc is organic waste from wine production, and leachate is a liquid that can leech from grape marc. Mr Sowman applied for a discharge without conviction under s 106 of the Sentencing Act 2002. In a judgment delivered 9 December 2019 Judge Hassan declined the application and sentenced Mr Sowman to a fine of $18,000 and ordered him to pay a contribution of $1,000 towards the Council’s legal costs.2

[3] Mr Sowman appeals the decision declining the s 106 application on the grounds the Judge erred in his assessment of the gravity of the offending by taking into account factual matters not provided for in the summary of facts and relying on matters which were not proven beyond reasonable doubt. In the alternative, Mr Sowman appeals his sentence on the grounds the fine imposed was manifestly excessive with regard to comparable cases.

Factual background

[4] Mr Sowman is an employee of Marlborough Organics Ltd (Marlborough Organics). He is a former employee of Babich Wines Limited (Babich Wines).

1 Resource Management Act 1991, ss 15 and 339, maximum penalty $300,000.
2 Marlborough District Council v Sowman [2019] NZDC 25036 [Sentencing decision].

[5] In 2014, while Mr Sowman was an employee of Babich Wines, it was determined that Babich Wines would introduce a composting system to effectively use the large volume of grape marc produced from its winery located on the Echelon Vineyard in the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NZHC 1014
Decision Date: 15 May 2020

CaseChat Overview and Summary

John Wayne Sowman appeals against the refusal of the Marlborough District Court to discharge him without conviction under s 106 of the Sentencing Act 2002 and the sentence imposed on him. The appellant argues that the Judge erred in his assessment of the gravity of the offending and that the sentence imposed was manifestly excessive. The court considers the appeal in two parts: first, the refusal to discharge the appellant without conviction, and secondly, the sentence appeal. The court concludes that there was a material error by the Judge in taking into account evidence from the disputed facts hearing that was not included in the summary of facts, but that the error did not affect the ultimate outcome of the case. The court also finds that there was no error in the Judge's consideration of the additional materials produced at sentencing and that there was no error in imposing different outcomes for the co-offenders. With regard to the sentence appeal, the court finds that the Judge's starting point was appropriate and that the sentence imposed was not manifestly excessive. The appeal is dismissed.

Orders