Horizons Regional Council v Hopkins DC Levin CRI-2011-054-1264 [2011] NZDC 1744 (25 October 2011)

Last Updated: 26 September 2016

IN THE DISTRICT COURT AT LEVIN

CRI-2011-054-901264

HORIZONS REGIONAL COUNCIL
Informant

V

TIMOTHY JOHN HOPKINS
HOPKINS FARMING GROUP LIMITED
Defendants

Hearing: 25 October 2011

Appearances: B D Vanderkolk for the Informant J R Parker for the Defendants

Judgment: 25 October 2011

NOTES OF JUDGE B P DWYER ON SENTENCING

[1] Hopkins Farming Group Ltd and Timothy John Hopkins appear for

sentencing, each on three charges under the Resource Management Act 1991.

[21 To a certain extent the charges mirror each other. In the case of the company

they are:

• That between 20 August 2010 and 14 October 2010 it discharged dairy effluent in breach of s 15(1)(b) Resource Management Act, where the discharge was in contravention of Condition 2 of Resource Consent 103532 and not expressly allowed by a rule in a regional plan, proposed regional plan or regulation (CRN 0258).

• That between 14 October 2010 and 22 October 2010 it discharged dairy effluent in breach of s 15(1)(b) Resource Management Act, where the discharge was in contravention of Condition 2 of Resource Consent 103532 and not expressly allowed by a rule in a regional plan, proposed regional plan or regulation (CRN 0257).
• That on or about 22 October 2010 it discharged silage leachate in breach of s 15(1)(b) Resource Management Act, where the discharge was not expressly allowed by a rule in a regional plan, a proposed regional plan, resource consent or regulation (CRN 0256).

[3] For Mr Hopkins, in each case the charge is that he permitted Hopkins
Farming Group Ltd to discharge those contaminants (CRNs 0259, 0260 and 0261 respectively).
[3] Hopkins Farming Group Ltd and Timothy John Hopkins have each pleaded
guilty to each charge and are hereby convicted on each charge accordingly.
[3] Mr Hopkins is a director of the defendant company. He works in the farming
operation whose activities give rise to these charges and is the farm supervisor. For the sake of convenience, I will refer to the defendants jointly in these sentencing comments.
[3] The defendants are dairy farmers at Apiti. At the time of offending the dairy
farm carried about 900 cows. The defendants hold a resource consent authorising the discharge of dairy effluent to land. Condition 2 of the resource consent requires the defendants to ensure that the discharge does not result in contamination of groundwater, ponding or runoff into watercourses or subsurface drains.
[3] The farm effluent system has three ponds which receive and hold liquid and
solid effluent. On 14 October• 2010 a Council inspection discovered that one of the ponds had overflowed and ponded in an adjacent paddock. The area of ponding was estimated as being 300 square metres to a depth of 300 millimetres. A second pond had also overflowed and its contents were similarly ponding in an adjacent paddock.

The area of ponding was estimated as being 1000 square metres to a depth of 50 millimetres.

[8] In addition, solid effluent had been stockpiled in a paddock and runoff from
the pile was flowing onto the paddock. There was further ponding on the paddocks due to incorrect operation of a travelling irrigator.
[8] The Council undertook a follow-up inspection on 22 October 2010 and found
that there had been an unsuccessful attempt to stop the flow of effluent by use of sandbags. The ponds which were overflowing on 14 October were still overflowing and additionally leachate from a silage storage facility had overflowed so that dairy effluent and silage leachate had combined and were ponding in a paddock. The area of ponding was estimated at 900 square metres to a depth of 100 millimetres.
[9] Samples taken from the ponded effluent on 22 October• 2010 established that the ponds contained elevated levels of ammonia, total nitrogen, total phosphorous and E coli.
[9] In sentencing the defendants for this offending, I am conscious that the purposes of sentencing include the need to hold the defendants accountable for the harm done by the offending, to promote in them a sense of responsibility for the harm done, to denounce the conduct which gave rise to the offending and to deter both them and others from similar offending. This last factor is of some significance in the dairy industry where a small minority of dairy farmers continues to assault the environment through unsatisfactory effluent management.
[9] In this case, the environment potentially affected by the illegal discharges was the groundwater below the defendants' property which would or could have been subject to contamination from the dairy effluent and silage leachate. As is typically the case in this sort of offending, it is impossible to quantify the extent of damage actually done by the contamination, which was eventually rectified. Any effects would have been temporary. Again, that is typical of dairy effluent offending, where any one incident considered in isolation might have only minimal effects. It is

the combined effect of such one-off incidents which is the issue of concern for the Court,

[13] The defendants contend that this was not deliberate offending but rather a one-off occurrence involving a breakdown in the effluent system. They say that the causes of the discharge were heavy rainfall causing an overflow of one pond, stopbank failure of the second pond together with groundwater seepage and a drain blockage in the silage bunker. They say that these failures did not arise out of any blatant, cynical or deliberate actions on their behalf.
[13] That may be the case, but even so it is apparent that there was a high level of carelessness on the defendants' part in the management of their effluent systems. The following factors lead me to that conclusion:

• The effluent storage ponds had overflowed and the walls of one of them had collapsed in 2009. Sandbagging was undertaken as a temporary measure, with no permanent solution put into effect. This current offending occurred a year or thereabouts after• the earlier unremedied failure.
• The storage capacity of the ponds was clearly inadequate for the extent of the farming operation. There is no dispute on the part of the Council that there had been very wet weather conditions leading up to this offending, but farmers must plan for such contingencies in designing their effluent systems.
• The defendants have acknowledged that the offending took place from August to October 2010. Clearly, rectifying the problem was not treated as a matter of priority. The photographs provided by the Council show that the extent of the ponding and the consequent need to rectify problems was readily apparent, certainly at the time of the Council's visit.

• Mr Hopkins acknowledged that one of the ponds had not been emptied of solid effluent for 10 months which would substantially reduce the capacity of the pond. That solid effluent which had been removed from another pond was simply stockpiled, thereby providing another source of pollution.
• Finally, even when the offending was discovered by the Council it continued up until the date of the Council's second inspection, although I acknowledge Mr Parker's comment that it could not possibly have been immediately rectified.

[15] All of those factors, however, lead me to characterise the offending as involving a very high degree of carelessness on the part of the defendants. The Council acknowledges that the defendants co-operated with Council staff in their investigations and eventually took steps to rectify the problems. A Council inspection in November 2010 established that extensive remedial works had been undertaken.
[15] The defendants initially pleaded not guilty to the charges. The matter• was first called on 18 May 2011 and again on 15 June when it was adjourned for a plea. A not guilty was entered on 14 July 2011 and a guilty plea was eventually entered on 26 September 2011. The Council acknowledges the co-operation on the part of the defendants' present legal advisers in that regard.
[15] Mr Parker seeks a reduction in penalty from starting point of 15 to 20 percent for entry of a guilty plea. That, with respect, is untenable in a situation where it has been indicated that the appropriate reduction for a prompt guilty plea at the first available opportunity is a maximum of 25 percent.
[15] In terms of the seriousness of the offending, Waikato Regional Council v GA & BG Chick Ltd (2007) 14 ELRNZ 291 (DC) (Chick), referred to by counsel, provides a practical mechanism for assessing that matter. However, it must be acknowledged that the levels of penalty applying to the various levels of seriousness have now been overtaken by time in a distinct uplift in penalty levels since Chick

was decided. That uplift arises partly as a consequence of the 2009 amendments to the Resource Management Act and partly as a response to the ongoing dairy effluent offending which continues to come before the Court.

[19] I concur with the submission of Mr Vanderkolk for the Council that this offending falls at the upper end of the moderately serious band, which is described in these terms in Chick:

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.

[19] In that regard I simply refer to my earlier comments on the defendants' carelessness, which are relevant in fixing the level of seriousness of the offending. If it was not for the fact that the effect on the environment in this case could not be quantified, I consider that the offending might well fall into the most serious band. In my view there was a high level of carelessness on the part of the defendants.
[19] In this instance I propose to take a global approach to sentencing. I will treat the offending as essentially one ongoing, connected series of offences. I will also take a global approach as between the defendants because of the degree of connection between Mr Hopkins and the company.
[19] Although I have only limited information as to the defendants' financial situation, I note Mr Parker's advice that the defendants are in a position to pay a fine. That acknowledgement was given when he was aware of the size of the fine which the Council have suggested. Although he disputed the Council's submissions as to amount, I take his acknowledgement to mean that the defendants are able to pay a fine of the order sought by the Council if the Court so determines.
[19] I have considered the matter of previous convictions raised by the parties, I note that although neither defendant has any previous convictions the company owns two-thirds of the shares in Hawkes Bay Dairies (2002) Limited, which does have previous convictions for Resource Management Act offending. It was fined $20,000

for one offence in 2008 and a further $2500 for a lesser offence, also in 2008. Three of the directors of the defendant company are also directors of Hawkes Bay Dairies (2002) Limited, although Mr T J Hopkins is not one of those directors.

[24] The main incident of offending in the Hawkes Bay Dairies case involved a miscalculation of application rates of effluent, so appears to be somewhat different in nature to this present offending. For that reason I will not add any loading factor on penalty for the present defendant company, however neither will I allow any credit to the company defendant for having a clean record. Its directors must be well aware of the need to comply with the terms of resource consents in light of their past experience.
[24] In determining a starting point for penalty considerations I note that Parliament regards environmental offending as serious offending. The Resource Management Act provides for maximum financial penalties of $600,000 for companies and $300,000 for individuals.
[24] I have considered Bay of Plenty Regional Council v Kaituna Pastoral Farms Ltd DC Tauranga CR1-2011-070-792, 10 August 2011 (Kaituna), which has been referred to by counsel, as a basis for starting point considerations. In that case Judge Smith adopted a starting point of $45,000 with an uplift of $9000 for previous offending. Kaituna was a case of a one-off discharge and, in my view, is somewhat different to this ongoing discharge event.
[24] Taking all of those matters into account, I determine that the appropriate all up penalty starting point for penalty for this moderately serious, ongoing offending which involves a high level of carelessness, is the sum of $60,000. I propose to apportion that equally between the defendants. Mr Hopkins worked in the farming operation on a daily basis and was the farm supervisor. Although Mr Parker suggests that a lesser penalty be imposed on him than the company, I do not consider that as appropriate in light of his position as farm supervisor.

[28] I do not propose to take any additional aggravating factors into account in fixing the ultimate penalty.
[28] In terms of mitigating factors, I note the defendants' claim of remorse, To the extent that the claim is substantiated by the defendants' remedial actions, I propose to allow a reduction in penalty of $5000 to reflect those things and to reflect the defendants' co-operation with the Council. I do not give any credit for ultimately putting things right, as that simply puts the effluent system into the position which it ought to have been in in the first place.
[28] Finally, I will allow a further reduction of approximately 15 percent to reflect the belated guilty pleas. I consider that to be at the upper end of the reduction which might be available.
[28] Rounding those figures off I come to a final penalty outcome between the defendants of $48,000 and I determine as follows:

a) In the case of Hopkins Farming Group Limited:

• On the charge of discharging dairy effluent between 20 August 2010 and 14 October 2010 (CRN 0258), it is fined $10,000.
• On the charge of discharging dairy effluent between 14 October 2010 and 22 October 2010 (CRN 0257), it is fined $10,000,
• On the charge of discharging silage leachate on 22 October 2010 (CRN 0256) it is fined $4000.
• In each case it will pay solicitors' fees as per the Costs in Criminal Cases Regulations 1987, fixed by the Registrar if need be and Court costs $132.89.

• I direct that the fines, less 10 percent Crown deduction, be paid to Manawatu-Wanganui Regional Council.

b) In the case of Timothy John Hopkins:

• On the charge of permitting Hopkins Farming Group Limited to discharge dairy effluent between 20 August 2010 and 14 October 2010 (CRN 0259), he is fined $10,000.
• On the charge of permitting Hopkins Farming Group Limited to discharge dairy effluent between 14 October 2010 and 22 October 2010 (CRN 0260), he is fined $10,000.
• On the charge of permitting Hopkins Farming Group Limited to discharge silage leachate on 22 October 2010 (CRN 0261), he is fined $4000.
• In each case he will pay solicitor costs as per the Costs in Criminal Cases Regulations 1987, fixed by the Registrar if need be and Court costs $132.89.

I direct that the fines, less 10 percent Crown deduction, be paid to Manawatu-Wanganui Regional Council.

B wyer Dist t Court Judge