Woolley v Tasman District Council
[2015] NZHC 1078
•20 May 2015
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
CRI-2015-442-000008
CRI-2015-442-000009 [2015] NZHC 1078
BETWEEN PHILLIP JOHN WOOLLEY
First Appellant
AWARUA FARM (MARLBOROUGH) LIMITED
Second Appellant
AND
TASMAN DISTRICT COUNCIL Respondent
Hearing: 18 May 2015 Counsel:
D J Clark for Appellants
A C Besier for RespondentJudgment:
20 May 2015
JUDGMENT OF COLLINS J
Summary of judgment
[1] I am dismissing the appeals against conviction and sentence brought by Mr Woolley and Awarua Farm (Marlborough) Ltd (Awarua Farm). The appeal against conviction alleged that a defect in a provision of the Tasman Resource Management Plan (the Tasman Plan) meant no offence was actually committed. It was also alleged convicting Mr Woolley vicariously in his capacities as a director of Awarua Farm and as the employer of the person whose acts and omissions formed the basis of the charges, breached the rule against double jeopardy.
[2] I have concluded:
(1)there was no defect in the charges which properly identified offences under s 15(2A) of the Resource Management Act 1991 (the Act); and
WOOLLEY & ANOR v TASMAN DISTRICT COUNCIL [2015] NZHC 1078 [20 May 2015]
(2) Mr Woolley’s convictions did not breach the rule against double
jeopardy in s 10(3) of the Crimes Act 1961 (the Crimes Act).
[3] The appeals against sentence are dismissed because they were within the range that was reasonably available in the circumstances of this case and not manifestly excessive.
Context
[4] Awarua Farm and Mr Woolley were prosecuted by the Tasman District Council (the Council). They were convicted of a total of nine offences by Judge J A Smith in the Nelson District Court on 30 September 2014. Awarua Farm was sentenced on 30 October 2014. Mr Woolley was sentenced on 4 March 2015.
[5] The offences alleged contraventions of s 15(2A) of the Act. There were three categories of offence:
(1)Discharging a contaminant onto land, namely dairy shed effluent through a travelling irrigator that resulted in ponding on the land in a manner that contravened r 36.1.2.3(j) of the Tasman Plan on or about
1 November 2012. This offending is referred to as the “irrigation offences”.
(2)Discharging a contaminant onto land, namely dairy shed effluent in a manner that contravened that r 36.1.2.3(f) of the Tasman Plan by not sealing the effluent storage area. This offending was alleged to have occurred prior to 1 November 2012 and is referred to as the “first solid effluent offences”.
(3)Discharging a contaminant onto land, namely dairy shed effluent in a manner that contravened r 36.1.2.3(f) of the Tasman Plan by not sealing the effluent storage area. This offending was alleged to have occurred prior to 27 February 2013 and is referred to as the “second solid effluent offences”.
[6] Awarua Farm was convicted once in relation to each of these three categories of offences and fined $30,000 in relation to the irrigation offences and $30,000 in relation to both the solid effluent offences. Awarua Farm was fined a total of
$60,000.
[7] Mr Woolley was convicted twice in relation to each of these three categories of offence. He was convicted once in his capacity as a director of Awarua Farm. Mr Woolley’s second set of convictions was in his capacity as the employer of the farm manager, Mr Jordaan, whose acts and omissions formed the basis of the charges.
[8] Mr Woolley was fined $20,000 in relation to the irrigation offences, $20,000 in relation to the first solid effluent offences and $40,000 in relation to the second solid effluent offences. Mr Woolley was fined a total of $80,000.
Offence provisions
[9] Section 15(2A) of the Act provides:
15 Discharge of contaminants into environment
...
(2A) No person may discharge a contaminant… onto land, from a place or any other source, … in a manner that contravenes a regional rule …
[10] Under s 340(1)(a) of the Act, where an offence is committed against the Act:
… By any person acting as the … employee of another person, that other person shall, without prejudice to the liability of the first-mentioned person, be liable under this Act in the same manner and to the same extent as if he, she, or it had personally committed the offence …
[11] Under s 340(3) of the Act:
(3) If a person other than a natural person is convicted of an offence against this Act, a director of the defendant (if any), or a person involved in the management of the defendant, is guilty of the same offence if it is proved—
…
(b) that he or she knew, or could reasonably be expected to have known, that the offence was to be or was being committed and failed to take all reasonable steps to prevent or stop it.
[12] The relevant provisions of the Tasman Plan provide:
36.1.2.3 Discharge of Bird or Animal Effluent
The discharge of:
1. Dairy shed effluent; …
onto land is a permitted activity that may be undertaken without a resource consent, if it complies with the following conditions:
…
(f) Any effluent storage facilities are sealed so as to prevent any contamination of water by seepage.
…
(j) The application of effluent is not at a rate which results in ponding on the land surface for longer than one hour.
…
[13] At the time the informations were laid in this case, r 36.1.5.2 provided:
36.1.5.2 Discharges to Land (Other)
Except as specified by rule 36.1.6.1, any discharge to land that does not comply with the conditions of rules 31.1.2.1 to 31.1.2.11 or rule 31.1.3.1 is a discretionary activity.
[14] As I explain in paragraphs [43] to [49] of this judgment, the references to the provisions of r 31 in r 36.1.5.2 was a mistake. Rule 31 relates to taking water, diversion of water and damming of water. The typographical error in r 36.1.5.2 was discovered by the Council and corrected with effect from 28 September 2013. Rule 36.1.5.2 now refers to compliance with the conditions of rr 36.1.2.1 to
36.1.2.11 and r 36.1.3.1.
Background
[15] Awarua Farm was incorporated by Mr Woolley in 1973. Mr Woolley owned
99 per cent of the shares in Awarua Farm and was its controlling director. Awarua
Farm was placed in receivership on 24 November 2014 after it had paid the fines imposed by Judge Smith.
[16] Awarua Farm purchased a farm at Matakitaki near Murchison in 1995 (the farm). Mr Woolley leased the farm from Awarua Farm. The farm is approximately
700 hectares and is located alongside the upper reaches of the Matakitaki River. It has approximately 850 to 900 dairy cows. The dairy platform is largely on the northern side of the Matakitaki River with a small portion on the southern side. The farm is on two distinct terraces. The bottom terrace slopes towards the Matakitaki River. A number of waterways flow through the farm into the Matakitaki River. To the north, the farm is surrounded by sloping hills of native bush.
[17] Mr Woolley lives in Blenheim. The farm is managed by a farm manager and two other staff. At the relevant time Mr Jordaan managed the farm. He was employed by Mr Woolley, not Awarua Farm. Mr Jordaan started working for Mr Woolley on 1 June 2012.
[18] Awarua Farm and Mr Woolley have a history of issues with the Council. Council officers first inspected the farm on 3 December 2004. An abatement notice and an infringement notice were issued to Mr Woolley following that inspection. The abatement notice required discontinuance of all discharges of dairy farm effluent from the dairy shed and raceway into a stream on the farm. Further inspections by Council compliance officers took place on 20 December 2004, 15 February 2006,
10 May 2006 and 31 May 2006.
[19] On 4 July 2006, the Council applied to the Environment Court for enforcement orders against Awarua Farm and Mr Woolley in order to address deficiencies in the effluent management systems at the farm. The Environment Court made interim enforcement orders and issued further directions in 2006.
[20] The effluent management system on the farm was installed following the enforcement orders issued by the Environment Court in 2006. Washed down water and effluent was directed from the dairy shed to a wedge shaped stone trap. The effluent then flowed into a sump where a pump was located. From the pump,
effluent was pumped directly to a travelling irrigator which distributed the effluent over the disposal field located on the top terraces. The disposal area was estimated to cover approximately 60 hectares.
[21] During the 2008 to 2009 milking season, Council compliance officers visited the farm on a number of occasions. They observed many problems with the operation of the effluent management systems on the farm. The Council brought prosecutions against Awarua Farm, Mr Woolley and the then herd manager, Mr Boyer, in 2010.
[22] On 18 March 2011, Council officers inspected the farm. They observed a number of problems with the way in which effluent was stored and discharged.
[23] On 22 July 2011, Council officers made a further inspection of the farm. They observed improvements in the management of effluent on the farm. However, the storage pond had not been repaired and effluent solids continued to be stored on an unsealed area.
[24] Council officers visited the farm again on 24 April 2012. They observed: (1) effluent solids continued to be stockpiled on an unsealed surface;
(2) the condition of the storage pond had deteriorated to the extent that
large sections of the pond’s lining had slumped away; and
(3) effluent ponding in the disposal field.
[25] On 1 November 2012, Council officers returned to the farm. They observed: (1) the effluent trap and holding tanks were full. Effluent had overflowed
the holding tanks and was trapped within the bunded wall surrounding those tanks;
(2)the lower terrace and embankment area were bogged up and effluent was discharging into a nearby stream which had become discoloured;
(3)effluent solids from the trap and holding tanks continued to be stored in the same unsealed location;
(4) the storage pond was in poor condition; and
(5)significant ponding in the effluent disposal field along the travelling effluent irrigator line.
[26] Council officers decided the deficiencies in the storage and disposal of effluent at the farm contravened r 36.1.2.3(j) of the Tasman Plan.
[27] On 27 February 2013, Mr Trembath, a Council compliance officer, undertook a further inspection of the farm and met with Mr Jordaan. Mr Trembath observed:
(1) overflowing of the effluent trap and storage tanks; and
(2) effluent continued to be stored in an unsealed area.
[28] In a letter of 5 April 2013, Mr Trembath outlined to Awarua Farm the results of the November 2012 and March 2013 inspections. A copy of that letter was sent to Mr Woolley.
[29] On 30 April 2013, charges were laid against Awarua Farm, Mr Woolley and
Mr Jordaan. The irrigation offences charges related to offending on or about
1 November 2012. The first solid effluent offences charges related to offending that was said to have occurred before 1 November 2012. The second solid effluent offences charges related to offending said to have occurred prior to 27 February
2013. Other charges were laid for discharging effluent from stock grazing close to a waterway. Those particular charges were dismissed by Judge Smith at the end of the defended hearing. All charges against Mr Jordaan were ultimately withdrawn during the course of the hearing and after he had given evidence.
Summary of Judge Smith’s decision
[30] Judge Smith was satisfied Mr Woolley was the mind and controlling force of the Awarua Farm. He determined that if the offences were proven against Awarua Farm then they would also be proven against Mr Woolley as a director of that company because of the provisions of s 340(3) of the Act. In addition, Judge Smith determined Mr Woolley could also be vicariously liable for the actions of Mr Jordaan under s 340(1)(a) of the Act.
Storage of solid effluent
[31] Judge Smith was satisfied both Awarua Farm and Mr Woolley were aware that solid effluent from the dairy shed was being stored on open ground instead of on a sealed effluent storage facility. This finding was based on the following evidence:
(1)Mr Jordaan said he had a meeting with Mr Woolley during which they discussed the storage of the solid effluent. Those discussions established Mr Woolley was well aware of the need for the solid effluent to be stored on a sealed platform.
(2)Mr Jordaan had begun to store the solid effluent on a concrete pad near the shed and was told to remove it from there by Mr Woolley.
(3)Video evidence, photographs and evidence from witnesses all showed the storage of solid effluent on a surface that was not sealed.
Irrigation offending
[32] Judge Smith decided there was “clear and uncontroverted” evidence from the Council witnesses and farm employees that there was ponding of effluent on the property on the upper terrace. These findings were based upon the following:
(1) tests taken of that ponding showed near pure effluent;
(2)there were large ponds of standing water on the site even in times of drought;
(3)photographic evidence showed that ponding of effluent was a long- standing issue; and
(4) the evidence of witnesses who saw the ponding of effluent.
Mr Woolley’s and Awarua Farm’s knowledge
[33] Judge Smith was satisfied Awarua Farm and Mr Woolley knew of the deficiencies because:
(1) Awarua Farm and Mr Woolley were alerted to the problems by the
Council as early as August 2009;
(2)the breaches and ponding of the irrigator were identified by Council enforcement officers, who required remedial steps to be taken; and
(3) Mr Woolley was fully aware of the warnings that had been issued.
[34] Judge Smith was satisfied Mr Woolley was responsible for the actions of Mr Jordaan by providing a system that did not comply with effluent storage standards and an effluent treatment system which was not adequate to deal with effluent from the milking area.
[35] Judge Smith decided, however, the charges which alleged Awarua Farm and Mr Woolley permitted cows to discharge effluent onto ground where it may enter water were not proven.
Principles governing appeal against conviction
[36] Mr Woolley and Awarua Farm’s appeal to this Court is conducted by a rehearing pursuant to s 119 of the Summary Proceedings Act 1957. I can reach a different view of the facts from Judge Smith. The appellants do have the onus of satisfying me that I should differ from the District Court's decision. I must, however,
come to my own finding on the merits.1
1 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 143 at [3], [5]
First ground of appeal
[37] There are three limbs to the first ground of appeal:
(1)The appellant did not contravene r 36.1.2.3 of the Tasman Plan because that rule did not properly exist at the time of the alleged offending due to the error contained in r 36.1.5.2.
(2) Rule 36.1.2.3 of the Tasman Plan cannot stand alone.
(3)The correction to r 36.1.5.2 retrospectively created the offences which have led to the convictions and penalties imposed upon Awarua Farm and Mr Woolley.
[38] The first ground of appeal challenges all of the convictions and is based upon the suggestion there was a fatal defect in r 36.1.5.2 at the time of the alleged offending. It is submitted that as at the date of the alleged offending there was not a regional rule in place which was contravened by Awarua Farm, Mr Woolley or Mr Jordaan.
[39] The reasoning behind the first ground of appeal involves the following steps.
[40] First, s 15(2A) of the Act enables regional councils to promulgate regional rules to control the discharge of contaminants into air or onto land from any source.
[41] Second, the Council in this case has used a methodology for promulgating
rules known as “cascading rules”:2
… This method involves establishing and providing as part of the control mechanisms in the district plan, a series or cascade of sieve tests that contain the conditions earlier referred to…
[42] Third, the starting rule in the Tasman Plan governing the discharge of animal effluent is r 36.1.2.3. This rule is permissive. If an activity is not within the rule
and [13].
2 Application by Christchurch City Council (1994) 1B ELRNZ 348 at 351.
then one must move to r 36.1.5.2. A resource consent is required for the activities identified in r 36.1.5.2.
[43] Fourth, at the time of the alleged offending r 36.1.5.2 did not say what is now provided for in that rule. At the time, r 36.1.5.2 referred to rules in chapter 31 of the Tasman Plan relating to taking water, diversion of water and damming. Rule 36.1.5.2 was not changed to correct the reference to r 31 until 28 September
2013. It is submitted these deficiencies meant Awarua Farm and Mr Woolley were not charged with offences that existed at the time of their alleged offending.
[44] I accept that at the time of the alleged offending r 36.1.5.2 of the Tasman Plan should have referred to rules in chapter 36 of the Tasman Plan, not the rules in chapter 31. Rule 36.1.5.2 clearly contained a typographical error that was corrected when the Council appreciated its mistake.
[45] The approach taken by the appellant invites me to take a highly technical view of the rules and ignore the obvious intention behind those rules. I am not willing to adopt that course of action for the following reasons.
[46] First, the Court should strive to ascertain the meaning of a rule by reference to its text and in light of its purpose. This point was made by Chambers J in Beach Road Preservation Society Inc v Whangarei District Council:3
… Section 5(1) of the Interpretation Act requires the meaning of an enactment, which includes a rule by virtue of s 76(2) of the Resource Management Act and the definition of ‘enactment’ in s 29 of the Interpretation Act, to “be ascertained from its text and in the light of its purpose”. That provision clearly requires the “purpose” to be looked at. The purpose is that prescribed by s 76(1)(b), namely the objectives and policies of the plan …
[47] In the present case, Awarua Farm and Mr Woolley were charged with breaching s 15(2A) of the Act and r 36.1.2.3(f) of the Tasman Plan. No reference was made in the informations to r 36.1.5.2, which relates to the status of resource consent applications. That rule does not affect the assessment of whether a discharge
activity is “expressly allowed” under s 15(2A) of the Act. Rule 36.1.2.3 is a self-
3 Beach Road Preservation Society Inc v Whangarei District Council (2000) 7 ELRNZ 1 (HC) at
[34].
contained rule that applies standards to discharges of effluent. If the standards are not met then a discharge “contravenes a … rule” under s 15(2A) of the Act. Rule
36.1.5.2 was therefore not relevant to the charges.
[48] Second, even if r 36.1.5.2 was relevant, the approach advocated by the appellants invites me to ignore the obvious typographical error that existed in the rule at the time the informations were laid. No one could reasonably have been misled by the typographical error in r 36.1.5.2 at the time the informations were laid.
[49] Third, the correction to the wording of r 36.1.5.2 of the Tasman Plan in September 2013 did not offend the principle that legislation should not have retrospective effect.4 The offence in this case occurred by breaching s 15(2A) of the Act and r 36.1.2.3(f) of the Tasman Plan, which were in force at all relevant times.
[50] The first ground of appeal is dismissed.
Second ground of appeal
[51] The second ground of appeal alleges Mr Woolley was convicted twice, first in his capacity as a director of Awarua Farm and, second, in his capacity as the employer of Mr Jordaan, thereby offending the principle against double jeopardy contained in s 10(3) and (4) of the Crimes Act.
[52] Section 10(3) and (4) of the Crimes Act provide:
10 Offence under more than one enactment
…
(3) Where an act or omission constitutes an offence under 2 or more provisions of this Act or of any other Act, the offender may be prosecuted and punished under any one of those provisions.
(4) No one is liable to be punished twice in respect of the same offence.
[53] There is no difficulty with a prosecutor charging more than one offence arising from specific acts or omissions provided the offences are distinct. There
4 Interpretation Act 1999, s 7; Crimes Act 1961, s 10A.
needs to be some difference in the elements of the charges before two or more charges can be legitimately brought in relation to particular acts or omissions.5
[54] There is no doubt Mr Woolley could be convicted vicariously for Mr Jordaan’s offending in his capacity as Mr Jordaan’s employer. That is the plain effect of s 340(1)(a) of the Act. Similarly, Mr Woolley could be convicted vicariously for Mr Jordaan’s offending in his capacity as a director of Awarua Farm. That is the plain effect of s 340(3) of the Act.
[55] In the present case there were three elements to the offence which the
Council was required to establish beyond reasonable doubt. Those elements were: (1) that there had been a discharge;
(2) that the discharge was of a contaminant; and
(3) that the discharge was onto land.
[56] Once the Council established the elements of the charge it was then necessary to focus upon the liability of Awarua Farm and Mr Woolley.
[57] Awarua Farm was prosecuted on the basis that it was liable as the owner of the land upon which the farm was operated.
[58] Mr Woolley was prosecuted on the basis that he was:
(1)the employer of Mr Jordaan and as such he was vicariously liable for the actions of Mr Jordaan pursuant to s 340(1)(a) of the Act; and
(2)as a director of Awarua Farm. Mr Woolley was able to be held liable in his capacity as a director on the basis that he permitted the offending and “knew (or could reasonably be expected to have
known) that the offence was to be or was being committed and failed
5 R v Clarke [1982] 1 NZLR 654 (CA) at 656; Vakavelo v Police [2013] NZHC 254, [2014] NZFLR 1 at [9], citing De Montalk v Police HC Auckland AP109/98, 24 September 1998.
to take all reasonable steps to prevent or stop it” (s 340(3)(b) of the
Act).
[59] Thus, the prosecution of Mr Woolley in his capacity as the employer of Mr Jordaan and in his capacity as a director of Awarua Farm contained separate elements and as such did not offend the rule against double jeopardy codified in s 10(3) and (4) of the Crimes Act.
[60] The second ground of appeal is dismissed.
Sentence appeals
The sentences imposed by Judge Smith
[61] Judge Smith adopted the following starting points for the irrigation offences: (1) Awarua Farm $30,000
(2) Mr Woolley, in his capacity as a director $30,000 (3) Mr Woolley, in his capacity as an employer $10,000.
[62] The following starting points were adopted for the first solid effluent offences:
(1) Awarua Farm $20,000 (2) Mr Woolley, in his capacity as a director $20,000 (3) Mr Woolley, in his capacity as an employer $ 5,000.
[63] The following starting points were adopted for the second solid effluent offences:
(1) Awarua Farm $30,000
(2) Mr Woolley, in his capacity as a director $30,000 (3) Mr Woolley, in his capacity as an employer $10,000.
[64] Judge Smith had regard to the interrelationship between Awarua Farm and Mr Woolley and considered whether he should treat them as being in effect a single entity. Ultimately, Judge Smith concluded that although it was possible in appropriate cases to treat offenders as a single entity, the Act does provide for an assessment of the relative culpability of different parties depending on their roles. Judge Smith was satisfied Mr Woolley had separated his roles from Awarua Farm and that he was obliged to look at Mr Woolley’s culpability separately from that of Awarua Farm, although ultimately he also needed to bear in mind the principle of totality.
[65] Judge Smith determined that the original starting points produced a figure that was disproportionately high. He therefore adjusted the starting point so that he arrived at an interim figure of $25,000 for Awarua Farm and for Mr Woolley in relation to the irrigation offences. Judge Smith also reduced his provisional starting point for the solid effluent offences. Those adjustments were applied to produce the following interim results:
(1) Awarua Farm $25,000 (2) Mr Woolley $40,000.
[66] Judge Smith was concerned by the previous convictions of Awarua Farm and Mr Woolley. Awarua Farm has six previous convictions, some of which related to offences concerning the discharge of effluent. Mr Woolley had 14 previous convictions ranging from matters identical to the charges that were before Judge Smith and discharging effluent into river beds. Previous sentences imposed on Mr Woolley included substantial fines and a sentence of home detention, which he breached.
[67] Judge Smith was also concerned that the offending in this case involved a breach of an enforcement order. It also involved significant premeditation on the part of Mr Woolley, whose offending was compounded by the fact that he had ignored requests from Mr Jordaan for equipment and facilities to improve the storage and disposal of effluent on the farm.
[68] The previous convictions and aggravating factors led Judge Smith to impose an uplift of close to 20 per cent. This produced a further adjustment of $80,000 for Awarua Farm and $90,000 for Mr Woolley.
[69] Judge Smith modified his final sentence so that a total of $60,000 in fines was imposed on Awarua Farm.
[70] Judge Smith carefully considered sentencing Mr Woolley to a sentence of imprisonment. Judge Smith was satisfied that Mr Woolley’s culpability was more significant than that of Awarua Farm, because of his direct role in the management of financial matters and his failure to take appropriate steps to avoid the offending that had occurred. Ultimately, Judge Smith decided to impose fines totalling $80,000 on Mr Woolley.
Grounds of appeal
[71] Mr Clark, counsel for Mr Woolley and Awarua Farm, submitted the fines imposed upon his clients were manifestly excessive and should be substantially reduced.
[72] There were five grounds to the appeal against sentence.
[73] First, the disparity in outcome between Mr Woolley and Mr Jordaan. This ground stressed Mr Woolley was an absentee farm owner who depended on Mr Jordaan to maintain oversight as to the way effluent was stored and discharged on the farm. It is said that Mr Woolley has been punished very severely when compared to the fact the charges against Mr Jordaan were withdrawn by the Council.
[74] Second, Mr Woolley and Awarua Farm have received manifestly excessive fines because they have been fined as separate entities.
[75] Third, the uplift to reflect previous convictions was excessive.
[76] Fourth, insufficient credit was given to the remediation work undertaken by
Awarua Farm.
[77] Fifth, the total fines imposed were manifestly excessive because the starting points were too high.
Disparity between Mr Woolley and Mr Jordaan
[78] Mr Jordaan gave evidence in the hearing before Judge Smith. That evidence helped establish the case against Awarua Farm and Mr Woolley. After Mr Jordaan had given evidence the Council exercised its prosecutorial discretion to withdraw the informations laid against Mr Jordaan.
[79] Thus, by the time Mr Woolley came before Judge Smith for sentencing, there was no assessment of Mr Jordaan’s culpability. There was therefore not a situation in which Judge Smith treated Mr Woolley in a disproportionately severe way to Mr Jordaan.
[80] Even if Mr Jordaan had been convicted and sentenced more leniently than Mr Woolley that outcome would have been justified. There are four key reasons for this:
(1)First, Mr Jordaan had only been on the farm for a short period of time.
(2)Second, Mr Jordaan was not aware of the enforcement orders that had been breached.
(3)Third, Mr Jordaan had not been made aware of the warnings that had been issued to Awarua Farm and Mr Woolley.
(4)Fourth, Mr Jordaan had not received the resources he required from Mr Woolley to be able to ensure effluent was properly stored and discharged on the farm. His evidence, and the evidence of other employees on the farm, clearly showed that they brought the deficiencies in the farm’s storage and discharge of effluent to Mr Woolley’s attention, who failed to respond. This was a case in which Mr Jordaan was set up to fail by Mr Woolley.
Role of co-defendants
[81] It is often the case that an individual and his or her company are treated in a global manner when assessing culpability for sentencing purposes. This approach was explained by Judge Dwyer in the following way:6
… [I]t must be recognised that a regular feature of RMA offending is that defendants are shareholders in companies or partners in partnerships which are charged together with the individual offenders in respect of breaches of RMA. That is the case of this instance where Erralyn Farm Limited is charged together with [Mr Begg] and [Mr Begg] and [his wife] are the shareholders in the company.
In such instances fines may in effect be coming out of the same pocket and a fine imposed on one of the defendants impacts directly on the others. In my view it is appropriate to take that factor into account when fixing penalty on the various offenders in those circumstances.
I consider that there are at least three reasons for that:
·Section 8(h) Sentencing Act which provides that a sentence ought not be disproportionately severe and that might be so if the offender is effectively fined twice;
·Section 40 Sentencing Act which requires the Court to have regard to offender’s financial circumstances;
·The totality principle which in essence requires the Court to stand back and look at the overall reasonableness of any penalty.
Such an approach may, in the circumstances which I have described, sometimes result in a financial penalty being effectively divided amongst defendants when they are closely related persons and entities …
I also note that such an approach will not flow automatically and each case must be approached on its own facts. There may well be factors such as
6 Canterbury Regional Council v Erralyn Farm Ltd DC Christchurch CRI-2011-003-1050,
27 June 2013 at [21]-[25].
particular culpability or financial circumstances where related defendants are
treated completely differently …
[82] Mr Clark said this approach should have been taken by Judge Smith in the present case. This recognises that for all practical purposes farmers such as Mr Woolley are the alter egos of companies such as Awarua Farm.
[83] The approach urged upon me by Mr Clark can be compared with the decision of Allan J in Calford Holdings Ltd v Waikato Regional Council, in which it was noted that there had been a tendency under the Act to adopt global starting points with respect to the totality of the offending and then allocate portions of the criminal
responsibility among the defendants.7 Allan J however, emphasised that:8
… greater transparency is now required as a necessary part of the sentencing process. Criminal culpability is assessed by reference to the role played by each individual offender …
[84] In the present case, Judge Smith was aware that Mr Woolley was the main shareholder and director of Awarua Farm. Judge Smith considered, however, that separate sentencing was appropriate in order to recognise the separate roles Mr Woolley had created for himself and Awarua Farm. The evidence before Judge Smith, which I have examined, justified the approach taken by him in this case. Mr Woolley’s conduct justified Judge Smith concluding that Awarua Farm played a lesser role than Mr Woolley, and that Mr Woolley had acted separately from Awarua Farm.
[85] I am satisfied that Judge Smith was correct when he approached the sentencing of Mr Woolley on the basis that Mr Woolley’s offending deserved separate punishment. This was the approach urged upon Judge Smith by the Council when it submitted that Mr Woolley’s offending was so grave and his record of offending so significant that a sentence of imprisonment was appropriate.
[86] The approach which I endorse recognises that each case must be assessed on its own facts. There may be other instances where the conduct of a farmer and
7 Calford Holdings Ltd v Waikato Regional Council (2009) 15 ELRNZ 212 (HC).
8 At [32].
holding company are so intertwined that a global approach to setting a fine is the appropriate course to follow.9
Uplift
[87] Mr Clark submitted that the uplift imposed by Judge Smith to reflect the previous convictions of Awarua Farm and Mr Woolley was excessive. In his judgment Judge Smith appears to suggest that he was imposing a 50 per cent uplift on Mr Woolley in relation to the solid effluent offending. In fact, by my calculations, the uplift for this offending was 23 per cent.
[88] I would have been concerned had a 50 per cent uplift been imposed. Whilst the Sentencing Act 2002 clearly provides for uplifts to reflect previous relevant offending,10 care needs to be taken to ensure that a defendant is not effectively punished twice for the same offending. In this case, an uplift of close to 20 per cent to reflect previous offending was appropriate, particularly as Mr Woolley was perilously close to being sentenced to imprisonment.
Remediation
[89] The suggestion that credit should be given for remediation holds little weight. Credit cannot be given for undertaking the improvements which should have been undertaken prior to offending under the Act.
[90] This approach was explained by Miller J in Thurston v Manawatu-Wanganui
Regional Council:11
The Court must begin with the proposition that the defendant must comply with his environmental obligations and gets no credit for having belatedly done so. Credit has been given in some cases, notably those where culpability was low and the expenditure both remedied environmental harm and evidenced full acceptance of responsibility. This case falls into a different category, of those where culpability was high and the expenditure did not make good environmental harm but was merely a compliance cost that the defendant had tried to avoid. Detection and conviction having forced the expenditure on the defendant, it is not a mitigating factor.
9 Canterbury Regional Council v Erralyn Farm Ltd, above n 6.
10 Sentencing Act 2002, s 9(1)(j).
11 Thurston v Manawatu-Wanganui Regional Council HC Palmerston North CRI-2009-454-24,
27 August 2010 at [67].
[91] Exactly the same comments apply in the present case.
Totals imposed
[92] In the present case, the maximum fines that were available to Judge Smith when sentencing Awarua Farm and Mr Woolley was $1.8 million each in relation to both entities. The fines imposed were four per cent of the maximum penalty that was actually available.
[93] In Glenholme Farms Ltd v Bay of Plenty Regional Council, Heath J
explained:12
On the sentence appeal, the issue is whether the fines imposed were manifestly excessive. An appellate Court must focus on the substantive question, as opposed to conducting a minute analysis of the way in which the sentence was constructed.
(Footnote omitted).
[94] Heath J considered the starting points and end sentence as a percentage of the maximum penalty and said that when viewed in that context it was difficult to regard the sentences as being manifestly excessive.
[95] In the present case that conclusion is clearly available to me. The sentences imposed represented a very small fraction of the maximum sentences available in the circumstances of this case.
[96] In addition, the starting points adopted by Judge Smith were not significantly different from sentences imposed in Tasman District Council v Matakitaki Dairy Ltd.13
[97] More importantly, the offending in this case required substantial penalties in order to hold Awarua Farm and Mr Woolley accountable for their conduct, promote
in Mr Woolley a sense of responsibility for his conduct, denounce the offending and
12 Glenholme Farms Ltd v Bay of Plenty Regional Council [2012] NZHC 297 at [40], citing R v
Xie [2007] 2 NZLR 240 (CA) at [16]-[21].
13 Tasman District Council v Matakitaki Dairy Ltd DC Nelson CRI-2012-042-2777, 28 June 2013.
deter others from behaving in a similar way.14 Awarua Farm and Mr Woolley have demonstrated a concerning disregard for their obligations. It is not surprising the Council sought a prison sentence for Mr Woolley. In many respects he was fortunate that Judge Smith chose to deal with him by way of fines.
[98] The sentences imposed by Judge Smith were not manifestly excessive. They were within the range that was available. For this reason the appeals against sentence must be dismissed.
Conclusion
[99] The appeals against conviction and sentence are dismissed.
[100] All orders made by Judge Smith in the District Court remain in force.
D B Collins J
Solicitors:
Wisheart Macnab & Partners, Blenheim for Appellants
Fletcher Vautier Moore – Richmond Branch – Nelson for Respondent
14 Sentencing Act 2002, s 7(1)(a), (b), (e) and (f).
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