Waikato Regional Council v Mathias DC Hamilton CRI-2010-019-2269 [2010] NZDC 1133 (23 July 2010)

Last Updated: 22 September 2016

IN THE DISTRICT COURT AT HAMILTON

CRI-2010-019-002269

WAIKATO REGIONAL COUNCIL
Informant

v

DAVID CARTER MATHIAS
Defendant

Appearances: S Cameron for the Informant Defendant appears in person

Judgment: 23 July 2010

NOTES OF JUDGE C J THOMPSON ON SENTENCING

[1] Mr Mathias, what I said when we were last in Court on 1 July can be incorporated into the comments that I need to make today. I will not repeat them in oral form but I will reproduce them in written notes so that you and about else who needs to will have a record of why it was that we got to the point of dealing with this matter by way of a sentence of community detention rather than, as would more normally be done, by way of a fine.
[1] (See Minute of 1 July 2010 attached)
[1] The simple fact is that you are not in a position to meet any realistic fine and imposing a fine on you would be futile, to say the least. Nor is community work a viable option in your personal circumstances. I am grateful to Ms Cameron because

it was she who raised the possibility that we might be able to deal with this matter by way of community detention or home detention. For the reasons that are set out in the report, home detention is not really viable. In any event I would not have dealt with this matter by way of a conventional sentence of imprisonment for a first offence of this kind, and if I could not get to that point then home detention is not appropriate. I am grateful too to the Probation Service for preparing the report so promptly so that we could deal with this matter today.

[4] In short the report confirms that community detention is a viable option. The
property is suitable. Monitoring can be arranged, although some delay will be needed to install the dedicated phone line. The other occupant of the property understands the sentence and agrees to it being imposed. In setting the term I want to make it very clear that I have made no attempt to equate the period of detention, either in terms of hours or anything else, to an equivalent fine. I have dealt with the matter on the basis that this sentence stands alone, and on the basis that the maximum sentence that I could impose would be one of six months, which is a term I do not think is appropriate here.
[4] So, for all those reasons, Mr Mathias, in dealing with this matter you will be
sentenced to a term of community detention. The term of that sentence will be three months. The commencement date will be 12 August 2010 and you will remain on bail until that time.
[4] The curfew address will be the property at 516 Limeworks Loop Road,
Te Pahu Hamilton. The curfew hours will be 8.00 pm to 4.00 am each day. As a condition, if it is required, I confirm that any firearms that you own or possess are to be removed from the property and kept elsewhere for the term of the sentence.

C J Thompson

District Court Judge/Environment Judge

IN THE DISTRICT COURT CRI-2010-019-002269

AT HAMILTON

THE QUEEN

V

DAVID CARTER MATHIAS

Date: 1 July 2010

Appearances: S Cameron for the Crown

Accused appears in Person

MINUTE OF JUDGE C J THOMPSON

[1] Mr Mathias pleaded guilty at the first call of this matter in April to a charge
under the Resource Management Act. The charge involved the unlawful discharge of a contaminant to land, that is dairy effluent to land, in circumstances where it may have entered water.
[1] Mr Mathias is the herd manager on a dairy farm of moderate size, milking at
the moment I understand, something up to 400 cows. The effluent management system on the farm was managed through an irrigation system known as a pot spreader. As the result of a complaint from a member of the public the Regional Council staff inspected the property on 12 October 2009. The inspection disclosed that effluent was being pumped from a pond to an open ended pipe at the top of a rising piece of ground. There was no pot spreader or any other kind of irrigation attachment on the pipe. The effluent was simply being discharged straight from it. From that point it flowed across a paddock for something in the order of 100 metres to a farm drain and eventually into the Kaniwhaniwha stream. Samples were taken both upstream and downstream of the discharge points. In very brief

terms, the stream is a sensitive environment. It is highly valued for its ecological qualities. It is a stream containing considerable aquatic life.

[3] The analysis of the sample showed that its water quality upstream of the
discharge points was excellent. Downstream of the discharge points in the drain and the tributary it was grossly polluted and it was still seriously polluted immediately below the discharge point into the stream itself. The levels of pollutants were sufficient to cause serious adverse affects on the ecology of the stream. Fortunately it is probably the case that the stream was sufficiently robust and in good general health to be able to absorb and disperse the pollutant without long-term significant effects, but the immediate effect on the receiving environment was serious.
[3] In terms of the deliberateness of the offence and attempts to comply, this
incident I have to say remains something of a mystery to me. It is plainly foreseeable that discharging effluent straight from the end of a pipe at the top of a hill will foreseeably cause major damage. It is also readily preventable. No prudent manager could possibly have thought that this was an appropriate course of action. It may well be that the system was inherently inadequate. That is not Mr Mathias' issue, but it was certainly exacerbated by negligent management on this occasion.
[3] In terms of the scale and significance, I have already mentioned the
significance in part, but this was a one off discharge, a discreet occasion, but it probably occurred over a period of hours and it probably involved a quantity of up to 90 cubic metres or thereabouts of effluent.
[3] As I have mentioned, Mr Mathias is the herd manager. He is not responsible
for the installation of the system but he was certainly responsible for managing it on this occasion. There has been no previous history of offending on his part. There are no direct profits obtained by him from the offending. He is a salaried employee.
[3] Of some significance is that this offence occurred on 12 October 2009, that is
after the coming into force of the increased penalties under the Resource

Management Act on 1 October 2009. The maximum penalty for this offence is now a fine of $300,000 or a term of two years' imprisonment.

[8] On any view of things, in the ordinary course this offence would call for a
significant fine. It is not possible or necessary at the moment to identify a particular sum but it would almost certainly be plus or minus $50,000. Mr Mathias' financial position is simply not up to meeting a fine of those proportions. He would have some difficulty, I accept, in complying with an alternative sentence of community work. His time away from the farm is limited and I accept that his employment would probably counter-indicate such a sentence. That leaves me with an issue in terms of what appropriate and fair sentence can be imposed.
[8] Ms Cameron has helpfully suggested that there maybe a solution in terms of
home detention or community detention, although I have to say that I would not in the ordinary course consider at all imposing a sentence of imprisonment, in a conventional sense, for a first offence of this kind, but there are the difficulties I have mentioned.
[9] I think the alternatives could be fairly explored and indeed probably I owe it to Mr Mathias to do that. I therefore intend to convict him and to remand him on bail to 23 July for sentence. I will ask for a pre-sentence report with the necessary annexures to explore the possibilities of either home detention or community detention:
[9] I understand that in the normal course the Probation Service would require longer than that time to prepare a report but I hope that it will be understood that I should sentence Mr Mathias. I am not based in Hamilton. The only occasion on which I will be here in the foreseeable future is 23 July so I must ask for an exception to be made and a report to be made available to me in time for sentencing on that date.

C J Thompson

District Court Judge/Environment Judge