West Coast Regional Council v Marsh DC Christchurch CRI-2010-018-695 [2011] NZDC 900 (15 June 2011)

Last Updated: 26 September 2016

IN THE DISTRICT COURT AT CHRISTCHURCH

CRI-2010-018-000695

WEST COAST REGIONAL COUNCIL
Informant

v

DAVID STEPHEN MARSH
Defendant

Hearing: 15 June 2011

(Heard at Riccarton)

Counsel: H van der Wal for the Informant

P Maw and E F Thwaite for the Defendant

Judgment: 15 June 2011

NOTES OF JUDGE J E BORTHWICK ON SENTENCING

[1] Mr Marsh, you have pleaded guilty to an offence laid under s 15(1)(b) and
s 338 of the Resource Management Act and you are hereby convicted. The penalty that applies to this offence is a fine of up to $300,000 and, in addition, you are exposed to a penalty of up to two years imprisonment.
[1] Defence counsel and the informant are of the view that a fine is the
appropriate outcome and I agree, and so the only issue is the starting point for a fine.
[1] Mr Marsh, you are charged in relation to a discharge of contaminants onto
land in circumstances where those contaminants may, and indeed did, enter water. The contaminants are in the form of sediment sourced from your gold mining operation at Stony Creek on the West Coast. You used water to separate the gold

from the gravel containing the same. The water was then discharged into Stony Creek and from there into a settling pond.

[4] On this occasion the walls of the settling pond had been breached and
secondly, the pond was fully laden that is to say that it had no capacity to take any further discharge. The summary of facts records that the settlement pond was not operative. Nevertheless there were fresh deposits of sediment into this pond from your mining operation.
[4] As I understand it you did not hold resource consent to undertake these
activities but rather you were given express permission by BCF Group Limited to use its consent provided that you complied with its conditions on the consent. There were a number of conditions which you did not comply with, including that the activities had to take place on land identified in an area plan. The informant says that you were excavating the toe of a bank outside of the designated area. This caused the bank to slip releasing a considerable volume of sediment which eventually entered Stony Creek and from there into the settling pond. Because of the hole in pond wall, water carrying sediment flowed from there over land entering Fox Creek.

Nature of the environment

[4] The summary of facts refers to a report prepared by the Regional Council
resource scientist, Mr J Horrocks. The report suggests that, given its proximity to the Arahura River, Fox Creek has potential to support trout spawning (although this seems to be of limited relevance given that the discharge did not occur in this season). The Arahura River is important to local Maori for its food resources. It is a breeding area for birds, a nursery for native fish and is also known for the ‘purity’ of its waters. Mr Horrocks, whilst acknowledging that he is not an expert, expresses an opinion that the discharge would have had a significant impact on native fish and upon the purity of the water –which I take to be a reference to its water quality.

Harm done to the environment

[7] The summary does not record whether the sediment reached the Arahura
although I think it is a reasonable assumption that a proportion of it would have. I accept that the discharge would have affected the water quality of Stony Creek and Fox Creek for a period of time and that it may have affected also the Arahura River (but I have no report on this).
[7] There are a range of potential adverse effects which arise as a consequence of
the discharge of sediments and you are fortunate, in this case, because those effects are unlikely to be significant in terms of their impact on the biota living in Stony Creek and Fox Creek.
[7] Counsel agree that the effects on this occasion were minor and I note that Mr
Horrock’s reports states that whilst there would have been an adverse effect on the macro-vertebrate community that the community would have quickly recovered.

Deliberateness and attitude of the offender

[8] In terms of the deliberateness the informant does not suggest that your offending in this case was deliberate, in as much as you did not set out to commit an offence against the Act.
[8] Regarding your attitude, BCF Group gave you permission to use its consent provided that you complied with the conditions of the consent. You agree that you had a copy of the consent and you also were aware of its conditions but you breached several of those conditions by discharging a considerable volume of sediment, many times in excess of what the conditions permitted. Moreover you released, or caused there to be released, sediment into the settling pond which was inoperative at the time and finally you had no regard to the area in which its operations were authorised under the terms of the consent.
[8] To your credit upon discovering the discharge, you did the right thing in

give credit also for arranging a contractor to cut off the sediment supply to Stony Creek.

Starting Point for a Fine

[13] The starting point for a fine has to reflect the gravity of the offending and to take into account any aggravating and mitigating factors relating to you.
[13] Having regard to the duration of the events, the nature of the environment and the harm done to the same I regard the seriousness of the offending, in this case, to be minor. You were fortunate that the discharge did not occur during a more ecologically sensitive time of the year, particularly during the trout spawning period and also that the environment recovered quickly.
[13] Your culpability I assess as being high. It may not have been deliberate in the sense that you set out to commit an offence but, Mr Marsh, I regard your actions on this day as demonstrating a real want of care.
[13] The informant submits that the starting point for a fine should be $50,000 and defence counsel, referring to recent increases in the fines, says somewhere between $10,000 and $20,000. Both counsel referred to a large number of sentencing decisions and I have had regard to them all. Ultimately each case turns on its own facts and no one case referred to was like the matter that I am dealing with today.
[13] I do not accept defence counsel’s submission that this case is in any way analogous to Canterbury Regional Council v Barrs Ltd1 where the starting point there was $5000 established in relation to minor offending (the offending occurred concerning the de-watering of an excavation site). The offending on this occasion was much more serious than that.
[13] Had I been sentencing prior to the increase in fines I would have imposed a fine of $30,000. I think an appropriate starting point in this case is $40,000.

24 May 2010, CRI-2009-009-014244, District Court, Christchurch.

[19] Mr Marsh I have noted your co-operation with the informant after it commenced its investigation. I have also noted that you have entered a guilty plea at your earliest opportunity and, in my view you deserve the maximum credit for that (discount of 25 %).
[19] I note that while you are self-employed and that there are no issues arising in terms of your ability to be able to pay a fine and this was confirmed by your counsel.
[19] Taking into account all of the above matters Mr Marsh, you are convicted and fined $28,000. You are ordered to pay court costs of $132.86 with solicitor costs of $113. Ninety percent of the fines are to be paid to the informant.

J E Borthwick
District Court Judge