Southland Regional Council v Hughes Crawley Company Limited DC Invercargill CRI-2010-025-2691 [2011] NZDC 2110 (17 December 2011)

Last Updated: 26 September 2016

IN THE DISTRICT COURT AT INVERCARGILL

CRI-2010-025-002691

BETWEEN SOUTHLAND REGIONAL

COUNCIL Informant

AND HUGHES CRAWLEY COMPANY

LIMITED Defendant

AND RICHARD TODD

Defendant

AND PETER HUGHES

Defendant

Date: 17 December 2010

Appearances: B Slowley for the Informant

H Grant for the Defendants

NOTES OF JUDGE J E BORTHWICK ON SENTENCING

[1] Richard James Todd, Peter Hughes and Hughes Crawley Company Limited
appear today for sentencing, each having pleaded guilty to a charge laid under sections 338 and 15(1)(b) of the Act that they discharged contaminant onto land in circumstances which may have resulted in the contaminant entering water. Having pleaded guilty the defendants are hereby convicted.
[1] The offending occurred on 26 March 2010. From 1 October 2009 the
maximum penalties which may be imposed upon conviction for this type of offending increased. For the company the maximum fine rose from $200,000 to $600,000 and for the defendants Todd and Hughes, the maximum fine rose from

2

$200,000 to $300,000. In addition the Court may impose a penalty of up to two years' imprisonment.

[3] The summary of facts states that the offending arose in relation to the same
event. A travelling irrigator had been set up in close proximity to a gully. Effluent from the irrigator accumulated in the gully and from there entered a tile drain eventually discharging into a culvert. The culvert was flowing with water. The summary records that the speed of the irrigator had been incorrectly set with the effect that effluent was applied at a volume too high for the soil to absorb. Secondly, a large amount of hose trailed behind the irrigator further reducing its speed and increasing the rate of effluent application. Effluent was also found to have ponded around the irrigator.
[3] I turn next to the gravity of the offence. Effluent is a contaminant. While
the contaminant entered into a culvert, and from there I understand a watercourse, there is no evidence of any lasting effect. This is no doubt due to the prompt action of Mr Todd in blocking off the culvert, preventing the effluent passing and, secondly, suctioning out the culvert to remove the effluent.
[3] The informant refers to water samples taken from the culvert. Ammonia
nitrogen concentrations were high and at a level with the potential to be toxic to aquatic life. Secondly, that the discharge would likely contribute to increase in nuisance macrophytes and periphyton growths. I do not have any information about the ecosystems supported by, or other values of, the culvert. While the culvert discharges eventually to the Aparima River the informant accepts that there is no evidence that the effluent reached the same.
[3] In terms of the gravity or seriousness of the offending it is towards the lower
end of the scale.
[3] I now address the culpability of the defendants and I do so having regard to
the role that each of them played in the offending and then assess the aggravating or mitigating factors relating to the offending.

3

[8] The company is the consent holder and landowner and it is vicariously liable
for the actions of its employees (the co-defendants). The consent holder (the company) is responsible for ensuring that the conditions of consent which authorise the discharge of effluents are adhered to and on this occasion it failed to do so, although in reality the failure was through the actions of its employees.

[9] Mr Hughes is managing director of the company and its farm manager. He
has overall responsibility for the management of the effluent disposal system on the property. The informant submits that his culpability must reflect that:

(a) he did not install a fail-safe device that would switch off the irrigator if it stalled; and
(a) he failed to provide adequate instruction to his employees in the set-up and use of the trailing irrigator.

[10] Richard Todd is an experienced farm worker. He was responsible for setting up the irrigator on the day of the offence. The informant submits that his culpability must reflect that:

(a) he did not properly set up the irrigator in that its travelling speed was too low;
(a) he allowed hose to drag behind the irrigator; and
(a) the irrigator was situated close to a gully, being an area likely to contain field drains.

[11] In reply defence counsel submits Mr Todd was responsible for the setting up of the irrigator and his actions on the day were inexplicable, ill-timed and regrettable. Ground conditions were suitable for irrigation. On that day everything that "could go wrong, did go wrong" in the irrigation of effluent. She agrees that:

(a) he misjudged the speed of the irrigator;
(a) the irrigator was set too close to the ridge with the result that the
effluent flowed downhill ponding in the gully;
(a) the hose length caused additional drag on the irrigator; and

4

(d) he failed to check the irrigator during its run.

[12] Mr Hughes was not present on the day the offending took place. Defence counsel says that he did provide instruction to his employees. However she concedes that there is an ongoing need to train employees, and that even very experienced employees may become less cautious or even careless because of their familiarity with the tasks at hand. While the employees knew where the field drains lay, recording them in writing would have reinforced the importance to avoid these areas during irrigation. Mr Hughes has since installed a device that would prevent the irrigator being set at a too low speed.
[12] In relation to the company, the defendant company has an effluent management policy. The policy specifically addresses those factors giving rise to the offending on this occasion. The employees had been made aware of these procedures but the company's culpability is like that of Mr Hughes, in that there was a need for ongoing training in relation to those policies if there was to be compliance with the conditions of consent.
[12] I agree with counsel that the offending on this occasion was a one-off event. Mr Todd displayed a high level of carelessness. There was not one but many contributing causes to the offending. Given the number of contributing causes this does raise the issue about the effectiveness of the company's training procedures. I assess his level of culpability or blameworthiness to be moderate.
[12] Mr Hughes was not present on the farm but he accepts he was responsible for the training and supervision of employees. Given the large number of contributing factors I accept the informant's submission that this points to an inadequate or ineffective training. Defence counsel also says that this is indicated.
[12] As I have mentioned, the company is vicariously liable for the actions of its employees. Mr Hughes' culpability and the company's culpability I assess to be moderate. As Mr Hughes is the director, he is the controlling mind and will of the company.

5

[17] Referring to the decision of Otago Regional Council v Plakmaj Holdings Limited and Others1 , Mr Slowley for the informant submits that the appropriate starting point for fines are as follows:

■ for Hughes Crawley Company Limited a fine of $50,000;
■ for Richard Hughes a fine of $30,000;
■ for Peter Todd a fine of $25,000.

In that case the gravity of the offending was more serious inasmuch as effluent entered a waterway, but the culpability of the offenders was similar. Defence counsel submits that the appropriate starting point:

• for the company is a fine of $36,000;
• for Mr Hughes a fine of $20,000;
• for Mr Todd a fine of $20,000.

Both counsel submit that these starting points reflect an increase of penalties from 1 October 2009.

[18] Had the offending occurred before 1 October 2009 I would have regarded the culpability, in the absence of its director or employees, to be very similar to that in Southland Regional Council v Richburn Dairies Limited2 where I set the starting point at $18,000. Given the fact that the fines have trebled that would suggest that Mr Slowley's starting point of $50,000 is not far from the mark.
[18] However, in this case I have before me the company director and it is through the actions of the company director that the company finds itself vicariously liable. In my view it is sufficient in this case to convict and discharge the company. I say that given:

(i) I do have the director before me; and

1 CRI-2010-017-000247, 246, 245, 26 July 2010, Judge Borthwick, DC Invercargill.
2 CRI-2009-025-001369, 24 July 2009, Judge Borthwick, DC Invercargill.

6

(ii) any penalty on the company would be effectively a penalty imposed on the director, Mr Hughes. I am concerned that there not be double punishment.

I also think that it is sufficient to mark the liability by conviction and discharge in the circumstances where we are dealing with relatively low level offending.

[20] In relation to Mr Hughes and Mr Todd, I find the starting point for their fines to be $25,000. I find their culpability to be the same albeit that I come to that assessment for different reasons. In other words I do not find Mr Hughes to be more culpable than Mr Todd in the circumstances. I am not referred to any mitigating factors which would warrant a discount to that fine. I have already taken into account the prompt actions of Mr Todd in removing the contaminants from the drain when setting the starting point for the fine. I am not aware of any aggravating factors which would result in an increase in the fine.
[20] In respect to Mr Todd, he earns a wage of some $47,000 per annum and from that he has around $315 per week in the hand after outgoings. He has no savings and I am told no realisable assets. He is not in a position to meet a substantial fine. In the circumstances I am prepared to reduce that fine by $3,000 to $15,000. Defence counsel has sought a penalty of community work. I think community work is appropriate but I also think Mr Todd should pay a portion of that fine. Mr Todd is sentenced to pay a fine of $5,000 in fortnightly instalments and to undertake 75 hours worth of community work.
[20] In coming to those sentences I have taken into account that the defendant Mr Todd pleaded guilty at his first opportunity and is entitled to the full discount. The defendant Mr Hughes did not plead guilty at the first opportunity and makes some oblique reference to the strength of the prosecution case although it seems to me that it is more likely that his change of plea has something to do with his re-evaluation of the different roles the defendants may have to play in this type of offending. The discount for the guilty plea that is appropriate is one of 15% rather than 25%. Mr Hughes is convicted and fined $22,000.

[23] All defendants are ordered to pay Courts costs of $132.89 and solicitor costs of $130. Ninety percent of the fine is to paid to the informant. I do not direct any costs to the informant as I have already taken those into account when reaching the final fine.

J E Borthwick

District Court Judge

JEB/DD/SRC v Hughes-Crawley Todd sentencing 17.12.10.doc.