Manawatu-Wanganui Regional Council v Kibler DC Palmerston North CRI- 2009-034-11 [2010] NZDC 581 (9 April 2010)

Last Updated: 22 September 2016

IN THE DISTRICT COURT
AT PALMERSTON NORTH

CRI-2009-034-000011 CRI-2009-034-000010

MANAWATU-WANGANUI REGIONAL COUNCIL
Informant

v

HERMAN JOSEPH KIBLER
Defendant

FERRY VIEW FARMS LIMITED
Defendant

Hearing: 9 April 2010

Appearances: E McCaughan for the Informant

G Mason for the Defendant Kibler

Judgment: 9 April 2010

NOTES OF JUDGE C J THOMPSON ON SENTENCING

[1] A company, Ferry View Farms Limited and Mr Herman Kibler have each
pleaded guilty to charges laid under the Resource Management Act relating to discharges of dairy effluent, in breach of resource consent conditions on a farm property near Tangimoana in the Manawatu in early August 2008.
[1] The company, Ferry View Farms Limited, was the owner of the land. Mr
Kibler or his personal company went on to the farm in a share milking capacity and as the owner of a herd of cows numbering about 1500. The farm had been

MANAWATU-WANGANUI REGIONAL COUNCIL V KIBLER And Anor DC PMN CRI-2009-034-000011 [9 April 2010]

purchased, and Mr Kibler had entered into the share milking arrangement and had taken over the farm, in May 2008.

[3] The company which had previously owned and operated the farm held a
resource consent which was transferred. It is accepted that the Council had cautioned that the effluent storage capacity constructed on the farm was not even close to recommended capacity. It was in fact, so I am informed, something of the order of five percent of what was regarded as good practice for storage capacity to cover emergency situations, or situations where normal effluent disposal became impossible.
[3] That was certainly an issue that must have been known to the farm-owning
company. It is not entirely clear to me whether Mr Kibler knew of the detail of it, in terms of what the resource consent and so on required, because he acknowledged frankly, but surprisingly, to the Council officers when an inspection was made that he had not seen or read the resource consent. For an experienced farmer such as he, that is an astonishing turn of events.
[3] What happened was that it became, and must have quickly become, apparent
that the effluent disposal system, based as it was on the low lying and quite wet coastal land close to a bend of the Rangitikei River shortly before it enters the Tasman Sea, simply could not cope. At the time the inspection was made, photographs of the effluent ponding on the farm make a very sorry scene indeed. In fact it is not too strong to say that they are disgraceful, and that any farmer should be ashamed of himself or herself for allowing such a situation to continue.
[3] The ponding of effluent extended over an area of nearly five hectares. In
places it was 60 centimetres - two thirds of a metre - deep. And the photographs show that not only was the irrigator not coping, it was not even connected. There are photographs of what can only be described as a fountain of pure effluent being pumped high into the air from the pipeline leading to the irrigator. There can be no excuse for that.

[7] Mr Mason has painted a picture of Mr Kibler being set up to fail, in the sense
that everybody should have known that the capacity of the system was inadequate. The storage particularly was inadequate and he suggests that the Council should bear some responsibility for that. I have to say that I do not find that a convincing argument at all. The simple point was that it would have been apparent to any farmer, let alone a farmer of 20 years experience, well before the crisis came to a head in early August, that there were simply too many cows on this land. It could not cope with them, and something had to be done.
[7] Allowing the irrigator to stand in one place for a week, simply pumping raw
effluent onto the ground when there was no possible way that it was going to be properly disposed of, is simply quite irresponsible. It may well have been that Mr Kibler was not in a financial position to have the effluent tanked away or something of that kind. What really needed to happen was the cows needed to be moved somewhere else. The land simply could not cope with what it was being asked to withstand.
[7] Against that background, I need to consider the issues of penalty and it is
common ground between counsel that I should do so against the background of the well traversed factors mentioned in the case of Machinery Movers v Auckland Regional Council, as discussed in later cases, and as added to by the provisions of the Sentencing Act.
[8] So far as the first two factors are concerned, that is the nature of the environment affected and the extent of the damage inflicted, I have already mentioned that this was low lying, quite wet farm land, close to the coast, sandy and somewhat porous according to the report lodged with the summary of facts. It is close to the Rangitikei River. What ultimate effect these serious discharges had on the quality of the ground water and the quality of the river water, if any, we do not really know. But there can be little doubt that it would have caused insidious and cumulative effects on a very sensitive environment.
[8] In terms of the deliberateness of the offence and the attitude of the defendant, I have partly mentioned that, in the sense of having to say that in my view, Mr Kibler

must have known exactly what was occurring. It must have been obvious to him that the situation just could not continue but that he allowed it to continue. And so far as the company is concerned, Mr Kibler's position is that various understandings or promises had been made that storage capacity would be provided, but that that did not happen until after these events had occurred. Well, possibly so, but one cannot get away from the fact that this was a situation that cried out for remedy and none was provided.

[12] In terms of the size and wealth and nature of operations of the defendants, I say immediately that one cannot help but feel sympathetic towards Mr Kibler's position. He went into this share milking arrangement, as I understand it, owning assets of very considerable value. There was an arrangement, never quite formalised apparently, that eventually Mr Kibler or his company would acquire an equity share in the farm property.
[12] The prospects of profit and his future must have seemed good. Sadly that has all turned to dust. His own company, as I understand it, is in receivership and what will be able to be rescued from the wreckage is presently unknown. He has very few personal assets.
[12] And so far as Ferry View Farms Limited is concerned, that company is, I am informed, one of the group of companies owned by and part of the Crafar family farming operations. The long and sorry history of that set of companies and its farming operations in this Court has been well enough discussed before. Ferry View Farms Limited is in receivership. There is a memorandum on the Court file from solicitors instructed by the receiver indicating that it seemed possible, as at some months ago, that the company would be placed into liquidation.
[12] Mr McCaughan informs me today that his recent inquiries indicate that that is not so - the company remains in receivership. No appearance has been entered on its behalf today and so I must proceed on the basis that in the absence of any other information, I should deal with it as an entity which is in a position to meet a financial penalty which could reasonably be imposed.

[16] I do have to say though that given the background of the ownership of this company and the repeated penalties that have been imposed on various entities forming part of the overall group, that yet another offence of this kind must be aggravated by that background. On the same issue, I understand that Mr Kibler's company was prosecuted for a similar matter arising out of the farm on which he previously share-milked. The offence arose before he moved to this property but a conviction was not entered until later.
[16] The conviction also of course is against the company rather than him personally. Were it the case that some particular penalty arose because of an earlier conviction such as, for instance, in the case of second or third or subsequent breath or blood alcohol convictions, the conviction against the company would not be particularly relevant. But in a situation where Mr Kibler was the guiding mind and the operative hands of the company, when one looks at culpability in a general sense, certainly that earlier matter and the knowledge that a prosecution must have been underway at the time that these offences occurred, is relevant.
[16] I accept of course that Mr Kibler is remorseful. That probably goes without saying and I accept that in a direct sense, no profits were realised by this offence. But what was happening was that the farm continued to operate with a herd of 1500 cows when it plainly could not cope with that number. To that extent, there was a financial reward coming out of the continued operation of the farm in a way that was damaging the environment.
[16] Mr Mason has raised the possibility that I should discharge Mr Kibler under s 106 of the Sentencing Act - without conviction. There is a tentative arrangement referred to in the affidavit presented to me today, that Mr Kibler may be able to go into a joint venture in a dairying operation in Texas in the United States of America. The information contained in a letter from an American attorney acting for the prospective joint venture partner indicates that if Mr Kibler has recently been convicted of a crime in any country, it may be difficult for him to be granted an appropriate visa to take up that option.

[20] Mr Mason submits that that would be a consequence, in terms of s 107 of the Sentencing Act, that would be out of all proportion to the seriousness of the offence. I have to say, not without feeling, as I have said, some sympathy for Mr Kibler that I do not see that that is so. Of its kind, this was a very serious offence. And particularly if he is intending to pursue an operation of a similar kind, then I do not see that the consequences of perhaps having some difficulties placed in his way of obtaining a visa, at least soon, is a consequence that is out of all proportion to the seriousness of that offence. I do not think that a discharge without conviction is an appropriate course.
[20] Mr McCaughan has suggested a start point in the vicinity of $30,000. If anything I have to say that I think that that is probably a fairly generous suggestion generous in terms of concessions towards the defendants. One way or another it seems to me that each of the two defendants bears responsibility. Probably being generous to Mr Kibler, I think that I should deal with him on the basis that within reason they are more or less equally responsible.
[20] Judge Newhook, in dealing with another of the entities in the Crafar family stable - in the prosecution brought by the Waikato Regional Council against Hillside Limited and a number of the Crafar family individually added, because of the background, an "uplift" to that start point in the range of $20,000. I think that that is an appropriate point here also.
[20] The company should be given some credit for its plea of guilty, although it was somewhat late in the piece and a full credit of about a third in terms of the judgement in Hessell is not appropriate. I will allow 20 percent. That would give a net fine of $40,000 for the company.
[20] Mr Kibler is in a different position, in the sense that he entered a plea promptly and should be given full credit for that. Under s 40 of the Sentencing Act. I of course have to take into account his financial position which, to say the least, appears to be difficult. One must have sympathy for him in that and adjust the fine accordingly. Allowing as much credit as I think I possibly can, he will be fined $5,000.

[25] In respect of both fines there will be the compulsory order under s 342 of the Resource Management Act that ninety percent of the fine is to be paid to the Informant Council. There will be orders for solicitor's fees under the scale in the Costs in Criminal Cases Act, and each defendant must pay Court costs of $130.

C J Thompson

District Court Judge/Principal Environment Judge