Bay of Plenty Regional Council v Thomas DC Tauranga CRN 09070501550 [2010] NZDC 403 (16 March 2010)

Last Updated: 22 September 2016

IN THE DISTRICT COURT
AT TAURANGA

CRN09070501550 CRN09070501552 CRN09070501553 CRN09070501554

BAY OF PLENTY REGIONAL COUNCIL
Informant

V

JOHN RHYS THOMAS
Defendant

Hearing: 16 March 2010

(Heard at Tauranga)

Appearances: A A Hopkinson for Informant V Scott for Defendant

Judgment: 16 March 2010

ORAL SENTENCING NOTES OF JUDGE J A SMITH

Introduction

[1] Mr Thomas, you appear today on a number of charges relating firstly to
permitting a dangerous substance, namely, copper aluminium chloride, to discharge onto land in circumstances where it could enter water and onto land generally. You are also charged with another offence in March 2009 of burning plastic bags which was not permitted by the air plan and not only constituted a nuisance but caused

injury. You have entered pleas of guilty to all four charges and you are convicted of all those offences.

[2] The question for the Court today is the appropriate sentence. Of course each
charge carries a maximum penalty of $200,000 or two years' imprisonment.

Background to the Offending

[2] You have operated a business, Thomas Holding Ltd, which grew kiwifruit
and also manufactured fertiliser. The business was operated in conjunction with another company, North Fert Limited, of which you are also the sole director, shareholder and employee.
[2] The substance copper aluminium chloride is apparently one used in the
process of manufacturing fertiliser. However, there appeared to be a significant number of drums that you acquired some years ago which have given problems as they have got older. In particular it appears that over the 10 years, some of the 4,400 drums began to leak, particularly when they are moved. I understand there may be some deterioration of the containers. When they have leaked they are corrosive to concrete and accordingly you moved them to the George Street property where you were operating the business because it consisted of rock and was covered with metal. A number of the barrels were leaking and you acknowledged that over the years they have broken and you have had to clean them up as required.

Damage to the Environment

[2] In short, this has been an ongoing environmental crisis for a considerable
period of time. It is an extremely toxic chemical and has significant adverse effects in water and I do not think there is any doubt it would also be dangerous to humans who came in unprotected contact with it.
[2] The council inspected your property and found broken drums and pools of
the chemical. Given the photographs I have seen, it is indeed fortuitous that people

have not come onto the site and played in the substance, particularly children, because it would have been very harmful to them.

[7] I understand it also escaped into a nearby drain, and although I was told it is
particularly toxic to fish it appears that there is no direct evidence that it kills fish given that they still seem to be in the stream.
[7] The second incident related to the burning of polypropylene sacks which had
formerly contained fertiliser and sulphur apparently. As a result there have been a number of complaints, people have suffered injuries, including headaches, nausea, vomiting and diarrhoea. From the descriptions it appears to be in the more serious category and one where there could have been very adverse effects to health.
[7] Apparently some of the neighbours spoke to staff on the site where the
burning was taking place and the response is described as belligerent. I do not attribute that to you but rather to the staff. However, it shows the seriousness of the matter overall.

Your Attitude

[8] When you were interviewed by council you were cooperative and admitted the charges. You have entered a plea of guilty at the earliest opportunity. You have also attended a restorative justice conference I think, with your daughter, and have acknowledged the harm you have done particularly to children. There is a detailed restorative justice report and it would be fair to say that you have acknowledged your responsibility for the events and apologised. You have agreed to pay reparation to some of the neighbours in sums that have been agreed, to a total of $1,600. You also agreed to pay the cost of the council's investigations at that time of around $10,800. You also said that you were undertaking remediation.
[7] The result of the restorative justice conference could then be seen as positive.
Two further events however have intervened. The first is that the property involved has been sold at mortgagee sale. I understand that the new property owner has acknowledged the problems with the chemicals and is taking steps to not only

remove the chemicals from the site but remediate the site generally. Mr Hopkinson tells me that on that basis the council does not have an ongoing concern about the property. Importantly, you have no further control over the property.

[12] The second matter is that you have been declared bankrupt on 12 March and accordingly have no ability to pay a fine.

Starting Point

[12] I now move to the question of the starting point and then on to the circumstances personal to the offender which need to be taken into account.
[12] The offending in my view is very serious. Mrs Scott in her very helpful submissions argued that this was not in the same category as cases such as R v Conway. With respect, I cannot accept that. There are aspects of this offending which with little imagination could have ended tragically, either by serious harm or even death. It is indeed fortuitous that that has not occurred and that the council detected these offences before it was too late.
[12] Accordingly, the starting point for this case would be a very substantial fine or even possibly a custodial sentence. If this was a matter for fine, I have got to say that I consider the starting point would be in excess of $100,000. For the reasons that I will describe in a moment the actual figure is I think academic. Nevertheless it is very serious.

Circumstances Personal to the Offender

[12] There is no doubt that the council should be entitled to a substantial fine on this matter and substantial payment for their investigation costs of $3,000. You, yourself, have acknowledged the time council has spent on this matter and offered at the restorative justice to meet that cost at that stage of around $11,000. The problem is you just do not have the ability to pay. It is not a question of willingness but rather inability.

1 [2005] NZRMA 274

[17] Fairly, Mr Hopkinson has recognised your circumstances in that regard and acknowledges that there would be little utility in the Court making an order for even payment of the council's investigation costs. I think that is a responsible approach and I agree that there is little point in a fine or a payment of investigations costs. I acknowledge your daughter has provided funds for the reparation payments of $1,600.
[17] This then leaves the potential for a custodial sentence. In that regard I have seen the medical reports (x 2) from your doctor. There are also a number of personal testimonials and I am prepared to accept in the circumstances that you have health issues, and also that the illness and subsequent death of your wife would have significantly influenced your thinking at the time, and perhaps made you less ready to acknowledge the serious steps that needed to be taken. I have concluded as a result, and having regard to the factors of the Sentencing Act that I should not impose a custodial sentence.

Outcome

[17] Whilst I recognise that the primary purpose of sentencing in RMA matters is deterrence the Sentencing Act also makes it clear that I need to take into account the personal circumstances of the offender:

1. you are 63 years of age;
1. you are no longer involved in any way in the business;
1. you have health issues;
1. you had the worry of your wife's sickness and eventual death;
1. you have attended a restorative justice meeting at which you have acknowledged to the injured the harm that was caused; and
1. you have been cooperative and helpful with the council through their investigation.

[20] Overall I have concluded that the appropriate sentence is a community sentence. Mrs Scott submitted to the Court that I should consider a period somewhat less than the 400 hours sought by Mr Hopkinson. In the end I have concluded that the period of 400 hours is appropriate given the seriousness of this offending. I recognise that it is a way in which you can give back to the community. I think it will not interfere with either your health issues or otherwise. It does mean that you will be making a significant contribution over the next months to community projects in your area, but I do not think that will do any harm. In the long term I am hopeful that it may attempt to improve or at least benefit the environment in some way.
[20] That being the case I have concluded that I should impose a community sentence on you of 400 hours together with payment of reparation to the victims of the offending in the sum of $1,600 in accordance with the restorative justice outcomes.
[20] I have also concluded that this is a case where I should make an enforcement order against you to prevent you being involved in the future in any business or activity that involves the storage or handling of trade wastes. Mrs Scott has acknowledged that you are no longer involved in such a business and this will ensure that you cannot do so without leave of the Court. In that way I am satisfied that future protection of the environment is achieved and that the Court has some oversight if you do become involved in this type of activity.
[21] Accordingly, the sentence is:

1. 400 hours community work.
1. Reparation in the sum of $1,600 to be paid to the Court in accordance with the restorative justice conference.
1. An order that you neither own, nor be involved in, any business dealing with trade wastes without further leave of the Environment Court.

[24] Finally, there is no order for payment of either solicitors' fees or Court costs given the circumstances of the offender on all offences.