Waslander v Southland Regional Council
[2017] NZHC 2699
•6 November 2017
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2017-425-25 [2017] NZHC 2699
BETWEEN KLAAS WASLANDER
Appellant
AND
SOUTHLAND REGIONAL COUNCIL Respondent
Hearing: 12 October 2017 Appearances:
J M van der Wal for the Appellant
B J Slowley for the RespondentJudgment:
6 November 2017
JUDGMENT OF MANDER J
[1] The appellant, Mr Klaas Waslander, pleaded guilty to three charges of unlawfully discharging contaminants into the environment.1 He was sentenced to a total fine of $60,000 ($20,000 on each charge). Mr Waslander appeals his fine on the basis it was manifestly excessive.
Background
[2] Mr Waslander owns and operates a dairy farm. He has a permit to discharge dairy shed and wintering shed effluent to land for up to 240 cows. Silage leachate from the silage storage facility on the property is disposed of by piping it to the effluent pond. This method is permitted provided there is no overland flow or ponding and the
discharge does not enter any surface water or naturally occurring wetland.2
1 Resource Management Act 1991, s 15(1)(b).
2 Southland Water and Land Plan (notified 3 June 2016), r 41.
WASLANDER v SOUTHLAND REGIONAL COUNCIL [2017] NZHC 2699 [6 November 2017]
[3] On 4 August 2016, two council compliance officers undertook a routine inspection of Mr Waslander’s property. The officers found three unlawful discharges, each of which became the subject of a separate charge.
[4] The first discharge was of silage leachate from a silage facility onto unsealed ground. The discharge flowed down the edge of a laneway into surface water, then through a novoflow pipe under the laneway into a waterway. The water was observed to be black in appearance with a silage-type odour. The officers were not able to assess how far the contamination had travelled in the waterway due to overgrown vegetation. There was no active flow in the waterway.
[5] A second separate discharge was from a split pipe that links the silage facility to the effluent pond on the property. The discharge was flowing from the pipe to unsealed ground and was ponding in a paddock where it had mixed with surface water. The size and volume of the ponding, which was clearly visible from the farm track, was described as significant. The volume of the escaping silage leachate would suggest the ponding represented an accumulation of many days of discharge.
[6] The third discharge was effluent derived from the cleaning out of a calf shed and stormwater from a pipe connected to a sump on the dairy shed tanker pad. The discharge was beside a makeshift farm dump located over the side of a steep bank. Effluent solids had mixed with farm and household rubbish. The resultant effluent had ponded on ground that was within 20 metres of a tributary of Duck Creek. Fortunately, at the time of the inspection the discharge had not reached that waterway, although it was obvious to the officers that if the discharge remained unchecked it would eventually enter the waterway.
[7] Samples from the three discharges were very turbid and contained high concentrates of suspended solids and E.coli. The summary of facts described silage leachate as being one of the most detrimental and hazardous forms of waste a farm can produce. It was described as a significant threat to surface and groundwater as it is very acidic, and has a high biochemical oxygen demand (BOD).3 The high ammonia
level makes the leachate toxic to aquatic life.
3 Biochemical oxygen demand or biological oxygen demand is a measurement of the amount of
[8] The summary of facts disclosed that all the discharges “had obviously been taking place over some time”. Drainage on the property was described as poor and overgrown with weeds, but eventually discharges into Duck Creek which flows from
Mr Waslander’s property and, in turn, discharges into the New River (Invercargill) Estuary approximately four kilometres away. The estuary is one of the largest in Southland with significant ecological value. It also has considerable cultural and recreational value as part of the large Waituna Wetland, which is a RAMSAR site.4
[9] After sampling was completed, Mr Waslander was invited to participate in an interview, however, he did not respond to that request.
District Court sentencing
[10] Judge Dwyer in sentencing Mr Waslander emphasised the actual and potential environmental impact. He described the offending as involving the discharge of contaminants into surface water in a vulnerable and sensitive environment. While accepting there was no indication the discharges entered Duck Creek, the Judge observed the offending involved a discharge of silage leachate, which was a particularly toxic contaminant, into surface water.
[11] The Judge noted it was unknown if that contaminant persisted in the environment, nor “how quickly it will travel through that environment”. The Judge accepted the farm drain was overgrown and slow moving, but that it was also apparent that contamination had been occurring for some time. Accepting there was no proof that leachate had entered Duck Creek, which would have elevated the offending to a more serious category, the Judge described the offending as at the upper level of the second or moderately serious category. This was a reference to bands of offending involving the discharge of dairy effluent set out in Waikato Regional Council v G A &
B G Chick Ltd (Chick decision).5
dissolved oxygen (DO) that is used by aerobic microorganisms when decomposing organic matter in water. Biochemical oxygen demand is an important water quality parameter because it provides an index to assess the effect discharge wastewater will have on the receiving environment.
4 RAMSAR sites have a national and international status, and the Waituna Wetland is included because it meets the criteria for wetlands of international importance.
5 Waikato Regional Council v G A & B G Chick Ltd (2007) 14 ELRNZ 291 DC (Chick decision).
[12] After noting the maximum penalty for each offence to be a $300,000 fine, the Judge accepted it was appropriate to take a global approach to penalty, recognising that each charge represented a separate example of a poor management regime. The Judge took a starting point of $80,000. Allowing full credit for prompt guilty pleas, an overall end penalty of $60,000 was reached which was divided into a fine of
$20,000 on each charge. Additionally, an enforcement order was made requiring remediation work to be completed to address areas of risk set out in an effluent system assessment report obtained by Mr Waslander in April 2017.
Approach to appeal
[13] Appeals against sentence brought under the Criminal Procedure Act 2011 may only be allowed if the appeal Court is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.6 If the sentence may be properly justified having regard to relevant sentencing principles, it is not the place of this Court to intervene and substitute its own views for those of the sentencing Judge. Only if the sentence is “manifestly excessive” should the Court interfere with the exercise of the sentencing Judge’s discretion.7
The appeal
[14] Mr Waslander contends a series of errors on the part of the sentencing Judge resulted in the imposition of a total fine which was manifestly excessive. In particular, he alleges the Judge erred:
(a) in his assessment of the factual circumstances of the offending, including the harm caused, the level of Mr Waslander’s culpability, and the seriousness of the offending;
(b) by failing to apply the sentencing principle of totality; and
(c) by failing to give recognition to mitigating features personal to
Mr Waslander’s situation.
6 Criminal Procedure Act 2011, ss 244, 250(2) and (3).
7 Ripia v R [2011] NZCA 101 at [15]; Larkin v Ministry of Social Development [2015] NZHC 680.
Assessment of the offending
[15] Sentencing guidance in cases involving dairy effluent discharges is provided by the Chick decision which reviewed previous sentencing decisions for this type of offending and identified three categories.8 Judges dealing with discharge offences usually adopt a starting point based on where the offending sits across these three bands:
[23] From an analysis of the cases a clear pattern generally emerges as to a range of starting points that reflect identifiable and distinct levels of seriousness. I group the levels of seriousness into three:
Level 1 — least serious - $0 - $15000
Level 2 — moderately serious - $15000 - $30000
Level 3 — more than moderately serious - $30000 plus
Level 1 — least serious — $0 - $15000
[24] This range of offending reflects unintentional one off incidents occurring as a result of a system failure. The range of penalty reflects the spectrum from the rarely used but wide discretion to discharge without conviction, to offending which encompasses some failure to adequately maintain the system, or failure to take timely restorative action. It also reflects little or no effect on the environment.
Level 2 — moderately serious - $15000 - $30000
[25] This range of offending reflects unintentional but careless discharges usually of a recurring nature over a period of time, or of incidents arising from the malfunction of different parts of the system. The offending is often manifested by a reluctance to address the need for a safe system of effluent disposal, resulting in delays in taking restorative action. It also reflects little or at the most a moderate effect on the environment.
Level 3 — more than moderately serious - $30000 plus
[26] This range of offending reflects the more serious offending. Offending that is deliberate, or if not deliberate, is occasioned by a real want of care. It is often associated with large plural discharges over time or one large one off event. It often exposes a disregard for the effects on the environment.
[16] Since the Chick decision, the maximum fine for a natural person has increased from $200,000 to $300,000, and the suggested range of fines in that case are required
to be adjusted accordingly. The categories identified are no more than a guide. As
8 Chick decision, above n 5.
observed by Miller J in Thurston v Manawatu-Wanganui Regional Council,9 care is required in the application of such a guideline lest it inhibit the Court’s response to developing trends in offending and evolving community concerns. However, the framework assists in achieving consistency in this area of sentencing.
[17] On behalf of Mr Waslander, Mr van der Wal submitted that in order for Judge Dwyer to place the offending in the “upper level of the second or moderately serious category” requires the combined effect of harm and culpability to be the most serious for this category. He submitted the circumstances did not demonstrate “moderate harm” as having occurred, nor any deep reluctance on Mr Waslander’s part to take restorative action. He submitted the offending did not represent a significant number of discharges over a period of time, which he maintained had to be present to qualify as level 2 offending.
[18] Mr van der Wal submitted this was not a situation where a contaminant had been pumped or directed to the waterway (the drain), but was rather an inadvertent spillage of leachate from a dedicated disposal system. Similarly, he submitted that relatively small amounts of effluent had inadvertently escaped and ponded on the property. Mr van der Wal was critical of the Judge’s reference in his sentencing decision to the wider catchment area and his focus on Duck Creek. He submitted the environment into which the contaminant was discharged had resulted in little, if any, harm.
Harm
[19] Mr van der Wal placed some reliance on the sampling results which, perhaps unsurprisingly, showed the level of the toxicity of the silage leachate proximate to the source of its discharge to be greater than the levels located in the drain. He sought to rely on that comparison to make the submission that there was little prospect of toxicity remaining present when the distance from the drain to Duck Creek was taken into account. Mr van der Wal submitted that, at best, there was the potential for harm
but that no actual harm had been established as resulting from the discharges. He
9 Thurston v Manawatu-Wanganui Regional Council HC Palmerston North CRI-2009-454-24, 27
August 2010.
argued the fact the contaminant had reached surface water does not equate to the establishment of harm. It was not inevitable, he submitted, that the discharge would have resulted in the contaminant entering the wider receiving environment, so as to be considered as having had an adverse effect.
[20] The extent of the environmental harm caused by the discharge of a contaminant is an obvious relevant consideration when assessing the seriousness of this type of offending. Whether lasting or irreversible damage has been caused, and whether the harm caused by the offending was of a continuing nature, or occurred over an extended period, are all relevant factors. However, it does not follow that where no actual damage is identified as having occurred to the wider environment harm has not been caused by allowing the contaminant to enter water.
[21] Regard must be had to the nature of the statutory prohibition which creates the offence in order to properly assess the nature of the harm or adverse environmental effects the Resource Management Act 1991 seeks to avoid. Mr Waslander was charged under s 15(1)(b) of the Act which prohibits a person from discharging any:
(b) contaminant onto or into land in circumstances which may result in that contaminant (or any other contaminant emanating as a result of natural processes from that contaminant) entering water;
[22] Mr van der Wal’s argument was premised on the submission that unless there was proof of the contaminant having entered the wider receiving environment no harm was caused. He described in his submissions the drain or waterway into which the silage leachate made its way as being “devoid of ecological value”. However, the focus simply on the waterway being a drain ignores the fact that it eventually discharges into Duck Creek which flows into the New River (Invercargill) Estuary. As with the other discharges, it is the entry of the contaminant into water and the potential hazard for the wider environment from such an occurrence that constitutes the harm.
[23] Importantly, the offence is directed at the prohibition of discharging contaminants onto land which may result in it entering water. The deleterious prohibited act which attracts the maximum fine of $300,000 is not the discharge of a contaminant which enters water, but rather the discharge of the contaminant onto land which may, as a result of natural processes, enter water. The reference in the Chick
decision to the offending having little or, at the most, a moderate effect on the environment when describing this mid-range category of offending, and which is only one part of the profile of such offending, must be read in the context of the prohibited act which creates the offence. In relation to two of the discharges, the contaminant had either actually entered a waterway or, if left unchecked, would eventually do so. The other discharge had resulted in the contaminant mixing with surface water.
[24] Mr Waslander relied on a decision of Fogarty J, Mainstream Forwarders Ltd v Canterbury Regional Council, for the proposition that the starting point for environmental offending should be the harm done.10 I do not read the Judge’s decision in that way. Mainstream Forwarders Ltd was not a dairy effluent case but was concerned with a one-off incident involving the accidental spillage of a non-hazardous liquid. Section 7(1)(a) of the Sentencing Act 2002 which was referred to in that case, and upon which Mr Waslander relies, provides that a purpose for which a Court may sentence or otherwise deal with an offender is to hold that person accountable for harm done to the victim and the community by the offending. The application of that purpose of sentencing in the circumstances of offending against s 15(1)(b) is to hold the offender accountable for discharging a contaminant onto land which may result in it entering water. The harm relates not just to any injury to the immediate environment but the risk created of wider damage to it.
[25] In an endeavour to identify error by the sentencing Judge in his approach to the assessment of harm and the seriousness of the offending, Mr Waslander submitted the Judge had taken into account a disputed aggravating feature which the prosecution had not proved, namely the possibility of the contaminant having entered Duck Creek. In that regard, reference was made to the distance the silage leachate would have to travel to reach Duck Creek and the fact the waterway or ditch was choked with heavy weed growth which impeded its flow. I do not consider the Judge made any error in his approach to that issue.
[26] Judge Dwyer remarked it was not known how long the leachate remains in the environment, nor whether it had entered Duck Creek which was dependent on
10 Mainstream Forwarders Ltd v Canterbury Regional Council HC Christchurch CRI-2009-409-
105, 1 October 2009.
environmental factors such as rainfall. These imponderables highlight the mischief which s 15(1)(b) of the Act seeks to address by prohibiting the potential for environmental harm from contaminants being allowed to enter water. For the purpose of imposing sentence, Judge Dwyer expressly acknowledged there was “no indication” the contaminant had entered Duck Creek. Indeed, the Judge observed that if that had been proven, that would have elevated the offending into the most serious category of dairy pollution.
[27] Judge Dwyer did not go beyond the information that was properly before him in the summary of facts. He was entitled to proceed on the basis of the content of the facts agreed by the prosecutor and the offender.11 Details such as leachate from the silage facility having entered a waterway; the contaminants from the calf shed and stormwater having ponded within 20 metres of a tributary of Duck Creek; and the leachate from the split pipe having ponded in a paddock and mixed with surface water; were facts beyond those required to establish the elements of the offence, and therefore aggravating features of the breaches. They were all facts contained in the agreed summary.
Culpability
[28] Mr Waslander submitted Judge Dwyer overestimated his level of culpability. There are two aspects to that submission. Firstly, it is contended the compass of
Mr Waslander’s offending is limited to a single instance of discharge that occurred on
4 August when the inspectors attended at his property. Secondly, that Mr Waslander was not a person who was reluctant to comply, and that any past non-compliance or perception of reluctance was the result of an impaired ability to appreciate what was necessary as a result of a stroke which Mr Waslander suffered in 2014.
[29] The summary of facts recorded that all of the discharges had “obviously” been taking place over some time before the inspection on 4 August. This was clearly apparent from both the accumulation of the ponding resulting from the volume of the
escaping silage leachate and its progress from the source, and the accumulation of
11 Sentencing Act 2002, s 24(1)(a).
effluent derived from the calf shed and from a stormwater pipe connected to a sump on the dairy shed tanker pad.
[30] Each discharge was discrete from the other. While none of the discharges represented a repetition of a previously identified fault which had not been remedied, it is apparent the discharges had been occurring over a period of time without being addressed. In assessing the culpability of Mr Waslander, Judge Dwyer was entitled to take into account the fact that the offending was ongoing and was not isolated or a one-off incident or accident. The number and nature of the discharges illustrated a “state of affairs” at the dairy farm.
[31] Mr Waslander suffered a stroke in October 2014. A close friend, Ms Ida van Heuven provided an affidavit for the purpose of Mr Waslander’s appeal, setting out steps taken to assist Mr Waslander. This evidence was not before the District Court. Ms van Heuven deposed that, with the assistance of others, arrangements were made to assist Mr Waslander with the farm during the period he was in hospital. While in the Dunedin Hospital Rehabilitation Unit, relatives from the Netherlands arrived to provide assistance with running his farm.
[32] In mid-November, Mr Waslander was discharged and returned to his farm. Shortly thereafter he dismissed the staff that Ms van Heuven had helped put in place to assist him and attempted to run the farm on his own. Ms van Heuven described
Mr Waslander as being a “one man band”, but a very capable farmer with excellent animal husbandry skills prior to his stroke. Since his stroke she has found him to be slower in his mannerisms and that he takes longer to complete the work. While encouraged to get assistance, Mr Waslander refused to get contractors or milkers.
[33] Ms van Heuven was concerned about Mr Waslander. These concerns came to a head in March 2016 when she was informed that Fonterra, to whom he supplied milk, had noted issues on his farm, following which it, together with Mr Waslander’s bank, intervened and a steering committee was set up to assist him to run the farm. Key concerns were identified. Fonterra advised that these matters had to be addressed before it would be willing to receive milk from his operation for the following season. A farm consultant was engaged to have oversight of Mr Waslander’s work and, under
his supervision, significant improvements, including to the effluent system, were implemented by the end of July 2016.
[34] Ms van Heuven deposed that this support had continued to be available to
Mr Waslander to ensure the necessary work continued. It was apparent that
Mr Waslander found this process very stressful. Ms van Heuven noted a very significant difference between his physical and mental capacity before and after the stroke. This, she deposed, had reduced gradually as he recovered, although it has taken time. She did not consider the issues that led to the intervention of Fonterra and also to the prosecution itself would have arisen but for Mr Waslander’s stroke.
[35] Mr Waslander’s environmental compliance record is chequered. A schedule of significant adverse environmental events involving Mr Waslander was set out as an appendix to the summary of facts:
Schedule of Significant Adverse Environmental Events
21July 2004 Old cowshed effluent running down lane Wintering pad sump overflowing Discharge of leachate from silage stack Pond overflowing
23August 2004 Pond overflow entering waterway – Abatement notice
21January 2007 Silage leachate running downhill and accumulating on laneway
20 September 2007 Pond overflowing
3 October 2007 Discharge to land outside of consented area – Abatement notice
1 March 2010 Large pile of race scrapings pushed down embankment with potential to enter water
27July 2011 Sludge of winter barn effluent running over unsealed ground to pond
24July 2014 Stock in waterway contrary to Regional Plan – Abatement notice
2 December 2014 Silage leachate running down laneway
20 August 2015 Effluent pond overflowing onto adjacent paddocks
Silage leachate flowing from silage stack
Abatement notice
March 2016 Silage leachate discharging from stack and break in pipe
[36] It was following the December 2014 and August 2015 events that Fonterra and the bank forced Mr Waslander to take stock of his position, and resulted in steps to upgrade the farm’s silage and effluent system, including the installation of a silage facility and the contracting of an external contractor to empty the storage pond. Nevertheless, in March 2016, there was a further silage leachate discharge.
[37] It was submitted on Mr Waslander’s behalf that the discharges the subject of the prosecution were not the result of any reluctance by him to comply with his obligations, and that Mr Waslander had taken steps to address the seriousness of the situation which had come to a head after his stroke and resulted in assistance being obtained. Any reluctance, it was submitted, was as a result of an impaired ability to appreciate the necessary steps to remediate identified issues rather than any unwillingness on his part to do so.
[38] The contrary submission made on behalf of the Council was that there was no evidence before the District Court to suggest the effects of Mr Waslander’s medical condition were such that his management of the farm was impaired. Even on the appeal no such medical advice has been tendered. It was submitted that
Ms van Heuven’s affidavit revealed Mr Waslander to be a stubborn individual who only when faced with an ultimatum from Fonterra and his bank had been prepared to address his deficient farming operation, having previously resisted offers of assistance. When compared with Mr Waslander’s pre-stroke record of non-compliance, the Council submitted the present offending represented a continuation of his careless effluent management. While it was accepted the sentencing Judge made no express reference to Mr Waslander’s stroke, there had been a dearth of information put before the District Court, and the focus now placed on this aspect for the purpose of the appeal was not advanced in the same way before Judge Dwyer.
[39] It is trite to observe that when assessing the circumstances of the offending a mental or physical impairment may lessen the culpability of an offender, however, care is required to ensure the impairment relied upon has some causative link with the
failures giving rise to the charges. In this case that Mr Waslander’s stroke was a material factor in his failure to prevent the discharge of contaminants.
[40] Mr Waslander’s stroke was not mentioned in Judge Dwyer’s sentencing remarks. It is raised on Mr Waslander’s behalf on the appeal to rebut the suggestion that he was unwilling to comply with his responsibilities. However, Judge Dwyer made no finding in that regard, beyond observing that the offending had resulted from a high degree of carelessness which was consistent with the carelessness he had exhibited over the years.
[41] Mr Waslander’s stroke occurred in October 2014, and he was discharged from the hospital’s rehabilitation unit in mid-November of that year. I think it likely the December 2014 and August 2015 events were the product of a combination of
Mr Waslander not being able to cope after his stroke and a continuation of an unsatisfactory approach to his compliance obligations which had previously resulted in the issuing of three abatement notices.
[42] The intervention of Fonterra and the bank resulted in a programme of improvements. However, the March 2016 event coupled with the present offending can only realistically be viewed as a continuation of Mr Waslander’s poor compliance record, which occurred despite the upgrading that was effectively forced upon him.
Mr Waslander’s careless approach has endured. While the unfortunate effects of his stroke are not likely to make compliance any easier, ultimately, it remains his responsibility as a dairy farmer to meet these requirements.12
[43] This is not a case of a dairy farmer whose compliance record has deteriorated after suffering a serious medical event. At best, Mr Waslander’s stroke has aggravated a substandard approach to maintaining an adequate management regime on his farm which came to a head following the issuing of an abatement notice after the
environmental events of August 2015.
12 Waikato Regional Council v Rymanda Farms Ltd [2016] NZDC 15056 at [48].
Conclusion on assessment of offending
[44] The ultimate responsibility sits with Mr Waslander as a person operating a dairy business as part of a larger nationwide industry that has the potential, unless well managed, to have a detrimental impact on the environment. If he did not appreciate the importance of his obligations before his stroke, then the intervention of outside organisations ought to have brought that home to him. I acknowledge that as a result of that intervention substantive steps were taken, including the establishment of new facilities and the introduction of an external contractor. However, it is apparent from the present offending, which involves three separate discharges which had been ongoing for some time before their discovery, and the previous event in March 2016, that Mr Waslander has continued to demonstrate a high level of carelessness. His culpability must be viewed in that light.
[45] I am satisfied the sentencing Judge was correct in categorising the offending as falling at the upper level of the second category identified in the Chick decision, being of a moderately serious nature. The offending represented a degree of carelessness which resulted in three separate discharges relating to separate parts of the farm’s system. That carelessness marks a continuation of an entrenched pattern of breaches. The requirement of a minimal or modest effect on the environment is, in my view, readily met by the fact that the discharges resulted in the entry of contaminants into water with potential consequential jeopardy to the wider environment. While the apparent immediate environmental effect was minimal, discharges that have entered either a watercourse or have the potential to enter groundwater must be viewed seriously. This is particularly so where the contaminant is particularly toxic, as is the case with silage leachate which is one of the most detrimental and hazardous forms of waste produced by a farm.
The approach to totality in setting the appropriate effective sentence
[46] Mr van der Wal was critical of the approach taken by the sentencing Judge to the calculation of sentence. He submitted the Court effectively imposed three cumulative fines without regard to the totality principle. Mr van der Wal submitted the maximum penalty available was only one of $300,000 which meant the starting point taken of $80,000 was well over a quarter of the appropriate maximum penalty.
By reference to other cases, Mr Waslander submitted this indicated that the starting point was too high.
[47] I do not accept that submission. The Judge’s reference to a total maximum penalty of $900,000 being available, while strictly correct, has been latched upon to suggest that Judge Dwyer did not take into account the totality principle. In fact, it is clear from the Judge’s sentencing decision that he asssessed Mr Waslander’s offending as a whole, and settled on an overall penalty that reflected the Court’s obligation to ensure the total sentence was not wholly out of proportion to the gravity of the overall offending.13
[48] A related submission that the Judge inappropriately imposed cumulative sentences when a concurrent sentence should have been imposed because the offences were of a similar kind is equally without merit. As already acknowledged, Judge Dwyer arrived at an overall starting point of $80,000 based upon his determination that each offence represented an example of the farm’s poor management regime. The final total fine of $60,000 was then simply divided between the three charges. This is a common approach where a defendant faces a number of charges which carry a monetary penalty. The same result could have equally been achieved by attaching the full fine to a single charge. The course adopted by the Judge in the circumstances of the present case is to be preferred. However, for the purposes of an appeal against sentence, the focus must be on the effective sentence imposed, rather than the process by which the sentence is reached.14
[49] The three charges separately represented discrete discharges from different sources by which contaminants were allowed to escape into the environment. Just because three different discharges were discovered on the same day, as a result of the inspector’s visit, does not alter the fact that each represents a separate discrete offence attracting its own penalty. What each offence had in common was that their root cause
was the result of the overall poor management and lack of good infrastructure on the
13 Thurston v Manawatu-Wanganui Regional Council, above n 9.
14 Larkin v Ministry of Social Development, above n 7; Tutakangahau v R [2014] NZCA 279, [2014]
3 NZLR 482.
dairy farm. Judge Dwyer clearly recognised that feature when he approached the sentencing exercise in the way that he did.
[50] Being satisfied the District Court correctly assessed the seriousness of the offending, the overall starting point of $80,000 accords with the guidance provided in the Chick decision once an appropriate adjustment is made for the subsequent increase in the maximum penalty since that case was decided. Because the starting point fell within the appropriate range, minimal benefit is gained by comparison with other cases which inevitably will have their own particular facts and points of difference.
[51] The sentencing Judge placed some reliance on Southland Regional Council v Carpenter, where a starting point of $75,000 was adopted for the total offending.15 In that case the Court was concerned with two discharges of dairy effluent (as distinct from silage leachate) that had entered surface water. As in the present case, the adverse effect on the wider environment as a result of the discharges was not clear, and while
Mr van der Wal makes the point the defendant in that case was running a larger operation which involved two farms, the defendant was a natural person, and the offending involved the poor management of a farm effluent system over a period of time. The offending was comparable to the present case.
[52] Mr van der Wal sought to support his argument by analysing the total fine as a certain percentage of the maximum penalty of $300,000 and by making a comparison with the maximum penalty available for corporate defendants, which is twice that for natural persons. I do not consider that analysis advanced his case. Mr van der Wal also referred to a principle of sentencing which requires the seriousness of the offence to be gauged against the maximum available penalty.16 Neither the total starting point of $80,000, nor the division of that starting point across the three separate offences infringes that principle. For offending which is assessed as falling at least into the
mid-range category when compared with the maximum available fine, the starting
point adopted might arguably be considered modest.
15 Southland Regional Council v Carpenter [2016] NZDC 10017.
16 Sentencing Act 2002, s 8(b), (c) and (d).
[53] Similarly, comparison with the greater maximum penalty available for corporate defendants does not assist Mr Waslander’s argument. Corporate defendants will usually be associated with larger commercial enterprises, although often it will simply be a matter of circumstance as to how the individual dairy farmer has organised or structured his dairy operation. The higher penalty for corporate defendants reflects both the need for the Court to be able to impose meaningful penalties that will carry the necessary punitive and deterrent effect on large commercial organisations and the absence of any alternative non-monetary sentences such as imprisonment which are available when natural persons appear before the Court for this type of offending. I do not consider the level of fine imposed in the present case breached any policy which sits behind the higher penalty levels for corporate defendants in terms of a percentage of the maximum penalty, as was contended for by Mr van der Wal.
Personal circumstances
[54] The sentencing Judge extended a 25 per cent credit to reflect Mr Waslander’s guilty pleas. However, no other deductions were made from the sentence starting point to reflect personal mitigating features. I consider Mr Waslander is on firmer ground in regard to this aspect of his appeal. Firstly, there is the recent background to
Mr Waslander’s present position. The effect of his stroke led to something of a crisis situation for Mr Waslander in terms of his ability to satisfactorily operate the dairy operation, and led to the intervention by Fonterra and his bank. That, in turn, required
Mr Waslander to take a number of steps to improve the management and infrastructure of his farm, which included the engagement of a farm consultant and improvements to the effluent system. There is, therefore, a combination of factors present which include both Mr Waslander’s poor health and the instigation of improvements and other remedial steps to address the lack of infrastructure and poor management.
[55] It has been recognised that those engaging in the business of dairy farming who are unable to fulfil their duties due to health or other reasons are required to take steps to ensure that others who are able to do so take over such functions.17 These duties to comply with the requirements of the Act are strict. However, ill-health has always
been recognised as a circumstance personal to an offender which may properly be
17 Waikato Regional Council v Rymanda Farms Ltd, above n 12, at [48].
taken into account in mitigation of sentence. Credit for a defendant having taken positive steps to meet his or her environmental obligations is also open to competing considerations and will depend very much on the circumstances of the individual case.
[56] I have had the benefit of Ms van Heuven’s affidavit which was not available to Judge Dwyer. It sets out in some detail the course of events since Mr Waslander’s stroke in October 2014, which I have detailed earlier in this judgment. Those circumstances do not reduce Mr Waslander’s culpability for the discharges which were his responsibility to ensure did not occur. However, the details provided by Ms van Heuven attest to Mr Waslander’s recent personal difficulties and to efforts he has made, albeit perhaps reluctantly, to improve his dairying operation. As a rehabilitative step it is important that he be provided with some encouragement to continue with improvements and maintain what gains have been made to his farm management systems to avoid repetition of the present offending. Taken together, I consider these circumstances personal to Mr Waslander ought to have been recognised by some limited deduction.
[57] Mr van der Wal also submitted that he was entitled to a discount to reflect the absence of any prior convictions. I do not consider that is a realistic submission having regard to Mr Waslander’s long history of adverse environmental events. Discounts are routinely given for previous good character, as evidenced by an absence of previous convictions, but Mr Waslander’s record is unsatisfactory, involving, as it does, the need to issue a number of abatement notices. That history offsets the claim of previous good character in respect of the present offending.18
[58] Finally, there was, as part of the sentencing, the imposition of an enforcement order. Under the Act, where a person is convicted of an offence of this type, the Court may, instead of or in addition to imposing a fine, make an enforcement order.19 I accept Mr Waslander’s submission that where an enforcement order is imposed it should be viewed as part of the total penalty. However, very often that will not result
in any need to modify the penalty because the enforcement order will simply require
18 Thurston v Manawatu-Wanganui Regional Council, above n 9, at [70].
19 Resource Management Act 1991, ss 339(5) and 314.
the remediation of the breach which is the subject of the prosecution, and merely oblige the defendant to discharge an existing obligation.
[59] However, in the present case, the enforcement order requires Mr Waslander to carry out work specified in an effluent system assessment report which he privately commissioned earlier in the year from an environmental consultant engaged to assess the farm’s effluent systems. The report identified areas of risk and the actions required to be undertaken. Again, in large part the specified work represents the steps required to be taken by Mr Waslander to bring his dairying operation to a state of reasonable compliance with his environmental obligations. However, because the steps required
by the enforcement order go beyond the expenditure of resources to remediate the particular faults subject of the charges, I consider some acknowledgement of those requirements should have been reflected in the sentence imposed. It does not appear that it was.
[60] When taken together, I consider these matters personal to Mr Waslander’s situation are required to be recognised by a reduction in the starting point in the region of a 10 per cent discount. This results in a small $8,000 reduction. I appreciate that such an adjustment borders on tinkering in terms of the overall sentence, however, in the absence of these personal factors featuring in the approach to sentence before the District Court, I consider this limited modification should be made. This adjustment is made because of the material contained in Ms van Heuven’s affidavit which was not available to Judge Dwyer. The appeal is allowed only to that extent.
Result
[61] Applying full credit for Mr Waslander’s guilty pleas to the reduced starting point of $72,000 results in a total overall fine of $54,000. Accordingly, the present fines of $20,000 on each charge are quashed and substituted with fines of $18,000. The enforcement order and the awards of costs and fees remain undisturbed.
Solicitors:
Duncan Cotterill, Christchurch
Barry J Slowley, Invercargill
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