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District Court of New Zealand |
Last Updated: 5 January 2021
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IN THE DISTRICT COURT AT HASTINGS
I TE KŌTI-Ā-ROHE KI HERETAUNGA
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CRI-2020-020-000100
[2020] NZDC 20027 |
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HAWKE’S BAY REGIONAL COUNCIL
Prosecutor
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v
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JOHNNY APPLESEED HOLDINGS LIMITED
Defendant
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Hearing:
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16 December 2020
(Heard at Auckland via AVL)
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Appearances:
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NM Graham for the prosecutor
LJ Blomfield and JK Welson for the defendant
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Judgment:
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22 December 2020
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SENTENCE DECISION OF JUDGE MJL DICKEY
[1] In a decision dated 6 October 2020 I gave a sentence indication that, for the reasons set out in full in that decision, I would convict and fine the defendant, Johnny Appleseed Holdings Limited, $14,000 with 90 per cent of that fine to be paid to the Council.
[2] On 16 December 2020, via AVL, the defendant confirmed that it accepted the sentence indication.
HAWKE’S BAY REGIONAL COUNCIL v JOHNNY APPLESEED HOLDINGS LIMITED [2020] NZDC
20027 [22 December 2020]
Decision
[3] Accordingly, the defendant is convicted and fined $14,000. I direct that 90 percent of the fine be paid to the Council in accordance with s 342 of the Resource Management Act 1991.
[4] A copy of my decision dated 6 October 2020 is attached to this decision. There is nothing to be added to the reasons for the decision.
[5] The embargo prohibiting publication of the sentencing indication is lifted.
Judge MJL Dickey
District Court Judge
Date of authentication: 21/12/2020
In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.
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IN THE DISTRICT COURT AT HASTINGS
I TE KŌTI-Ā-ROHE KI HERETAUNGA
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CRI-2020-020-000100
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HAWKE’S BAY REGIONAL COUNCIL
Prosecutor
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v
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JOHNNY APPLESEED HOLDINGS LIMITED
Defendant
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Hearing:
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11 August 2020
(Heard at Auckland via AVL)
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Appearances:
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NM Graham for the prosecutor LJ Blomfield for the defendant
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Judgment:
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6 October 2020
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SENTENCE INDICATION OF JUDGE MJL DICKEY
[1] Johnny Appleseed Holdings Limited (the company) is charged with discharging a contaminant being an agrichemical into air in a manner that contravened
HAWKE’S BAY REGIONAL COUNCIL v JOHNNY APPLESEED HOLDINGS LIMITED [6 October 2020]
Rule 10 of the Hawke’s Bay Regional Resource Management Plan and ss 15(2A), 338(1)(a) and 339 of the Resource Management Act 1991 (the Act).
[2] The maximum penalty is a fine not exceeding $600,000. The company has requested a sentence indication. Ms Graham for the prosecutor submitted that a starting point of $20,000 is appropriate and counsel for the defence Ms Blomfield agreed.
[3] A Summary of Facts has been agreed between the parties. Two victim impact statements were also provided. In addition, two videos were provided to the Court. Ms Blomfield agreed that they could also form the basis of this sentence indication.
Background1
[4] Johnny Appleseed Holdings Limited is a duly incorporated company based in Hawke’s Bay. It owns and operates an orchard at 138 Elwood Road, Hastings (the Orchard). The Orchard also fronts Ruahapia Road and Otene Road. There is a public cycle path (the Path) that runs the length of Otene Road and is situated between the road and the Orchard. There is a railway line between the Path and the Orchard but no windbreak or shelter break.
Regional plan framework2
[5] Rule 10 of the Hawke’s Bay Regional Resource Management Plan (the Plan) provides that any discharge of contaminants into air or onto land as a result of application of agrichemicals must be undertaken in accordance with all mandatory requirements set out in Sections 2, 5 and 6 of the New Zealand Standard for the Management of Agrichemicals (the Standard)3.
[6] For present purposes, section 5.2.3 of the Standard requires the following:
Decisions on the continuation or cessation of field operations, including stopping the operation if:
1 Summary of Facts, at [1]-[3].
2 Summary of Facts, at [9]-[11].
3 Rule 10 of the Plan.
(i) Persons not involved in the operation become exposed to the agrichemical being used or;
(ii) Any spray drift from the agrichemical application becomes a risk to vegetation, animals, people or property outside the target area (see appendix G)
Appendix G states that sensitive areas include public places and amenity areas where people congregate (c) and public roads (h).
[7] Rule 10 further provides that aerial and ground based discharges shall be notified by the property owner, manager or contractor. Where the application is on private land, signs shall be used to clearly indicate the use of any agrichemicals within 10m of public land where there is a shelter belt giving effective protection between the application and the public land, or within 30m of public land where there is no shelter belt giving effective protection between the application and the public land4.
The offending5
[8] At about 10am on Monday 23 September 2019 two cyclists were riding along the Path that borders Otene Road. They had turned off Ruahapia Road onto Otene Road and were cycling down the Path. A spray operator employed by the company was spraying the Orchard at this time. He was travelling down a row of trees towards the Path that the cyclists were on. They did not see him stop the sprayer at the end of the Path before making his turn back up the row and later told an enforcement officer that they were covered in spray from the sprayer as they cycled past.
[9] There were no signs on the Path warning that spraying was in progress. There was however a sign put out at the main gate of the Orchard on Elwood Road. I ascertained at the sentencing hearing that, while a sign had been placed on the main gate to the Orchard, that main gate is located on a different road to that which the cyclists travelled, being Otene Road. I was informed that there was no sign at either end of Otene Road warning of spraying at the Orchard.
[10] Following a complaint an environmental officer from the Hawke’s Bay Regional Council (the Council) attended the scene at 10.55am. He observed two
4 Rule 10 (h)(ii) of the Plan.
5 Summary of Facts, at [4]-[6] and [8].
orchard sprayers operating. The wind was gusty and wind meter readings were between 5.2 M/S and 6.2 M/S. Spray could be seen blowing over the Path.
[11] Subsequent information received from the company showed that the agrichemicals being sprayed at the time the cyclists came into contact with the spray were Calibra (a fertilizer), Folicur (a fungicide classified as hazardous), Mantrac (a fertilizer classified as hazardous) and Pristine (a fungicide classified as hazardous).
Explanation6
[12] The Orchard Manager was spoken to and noted that there were no warning signs out. He stated that the operator of the sprayer was “very green” and advised that he would ask the operator to turn the sprayer off further back from the road to try and stop the drift.
History7
[13] Complaints of spray drift occurring from the company’s properties have previously been received by the Council. On the majority of the earlier occasions advice had been given but there has been at least one verbal warning.
Sentencing principles
[14] The approach to sentencing is governed by the purposes and principles set out in ss 7 and 8 of the Sentencing Act 2002. The High Court has summarised the factors relevant to sentencing under the Act in Thurston v Manawatu-Wanganui Regional Council.8 Those factors are the offender’s culpability; any infrastructure or other precautions taken to prevent discharges; the vulnerability or ecological importance of the affected environment; the extent of the environmental damage including any lasting or irreversible harm; whether it was of a continuing nature or occurred over an extended period of time; deterrence; the offender’s capacity to pay a fine; disregard
6 Summary of Facts, at [7].
7 Summary of Facts, at [12].
8 Thurston v Manawatu-Wanganui Regional Council, HC Palmerston North, CRI-2009-454-24, -25 & 27, 27/8/2010 at [41].
for abatement notices or Council requirements; and cooperation with enforcement authorities and guilty pleas.
The environment and environmental effects9
[15] The Summary of Facts detailed that the agrichemical sprayed at the time of the offending included fertilisers and fungicides, most of which are classified as hazardous.
[16] Two victim impact statements were obtained from the cyclists on the Path; both detailed the concerns they had about being covered in spray while they were cycling. They were alarmed to have been caught in the spray and anxious until they were able to wash their hands and faces in the Hastings public toilets, which were a 20 minute ride away. They noticed when they were cycling that a tractor and sprayer were operating in the vicinity of the Path and were surprised as it was a very windy day with no warning signs being visible. They were worried at first that they may have been enveloped in a pesticide, until one of them identified it as a fungicide. They were angry at the casual attitude to public safety demonstrated by the operator.
[17] The company acknowledged the effect of the incident upon the complainants and accepted that they were subjected to spray drift and should not have been. Mr Paynter, on the company’s behalf, apologised unreservedly for that.
[18] I note that while no physical damage was recorded as a result of this event that members of the public were caught in the spray drift and were understandably upset and concerned. I assess the environmental effects of this offending as low.
Culpability
[19] Ms Graham submitted that the company’s actions showed a high level of carelessness. She submitted that given the location of the Orchard and the Path, with no shelter belt or windbreak in between, the company needed to exercise particular care when undertaking its operations. Further, an inexperienced operator, described by the Orchard Manager as “very green”, had undertaken the spraying. Conditions
9 Summary of Facts at [8], Victim Impact Statements from cyclists on the Path.
were not in favour of spraying given that it was clearly windy at the time. The video footage supplied to the Court graphically demonstrated the spread of the spray over the railway line and onto the Path. Finally, no warning signs were put out on the Path, either along the Path or at either end. Only one warning sign was put at the main entrance to the Orchard, which was some distance from the Path and on a different road.
[20] For the company, Ms Blomfield accepted that it is responsible for the actions of its employees. She submitted that it is relevant that the company has safety and training measures in place to ensure that incidents do not occur and pointed by way of example to the fact that all sprayer operators are GrowSafe certified; that spray plans and diaries prepared by the company name the sprayer operators and provide details of their GrowSafe certification; and that the certification process covers all the regulatory requirements (signs etc) as well as spray drift and sensitive area management.
[21] In addition, Ms Blomfield advised that all sprayer operators must complete the company’s machinery induction process and undertake a refresher at least once a year; and that the operator involved in the incident had completed that refresher in 2019. She noted that the company’s induction process and documentation are annually checked through global GAP audits. She advised that the Orchard Managers hold regular refresher/reminder meetings with their staff and that a few weeks before the incident the manager had held a meeting with staff in which they were reminded about the need for signs while spraying was in progress and to be aware of weather conditions and proximity to roads.
[22] Ms Blomfield submitted that a spray plan had been completed for the spray operators that day – setting hours of operation, that no spraying occurs if drift will carry onto houses, roads and waterways and that appropriate warning signs be displayed during spraying. She acknowledged that the latter two requirements were not met in this case. She did note however that when spraying began at 6.00am conditions were suitable but changed throughout the course of the morning and the sprayer operator did not adjust for that. The company acknowledged that he ought to have done so and regrets that he did not. While the Orchard Manager described the
sprayer operator as “very green”, he did have the appropriate training and certification; and should have been clear to him that conditions had changed to the point where they were no longer favourable. Further, the company accepts that signs should have been out on the Path to warn the public that spraying was in progress, however Ms Blomfield submitted that failure is less serious than the decision taken by the sprayer operator to continue spraying and the Orchard Manager’s lack of intervention.
[23] Finally, I was advised that the company’s process required any incidents to be recorded on an incident form so as to ensure that the company’s senior personnel were informed of any issues. The Orchard Manager did not comply with that process. Ms Blomfield informed me that the sprayer operator no longer works for the company and that the Orchard Manager received a written warning for the incident.
[24] The rules of the Plan are clear insofar as they set out the requirements for undertaking the application of agrichemicals. They require that decisions on the continuation or cessation of field operations should be made if persons not involved in the operation become exposed to the agrichemical being used or any spray drift from the application becomes a risk to vegetation, animals, people or property outside the target area. Furthermore, Rule 10 provides that aerial and ground-based discharges shall be notified by the property owner, manager or contractor. Where the application is on private land, signs shall be used to clearly indicate the use of any agrichemicals within 10 metres of public land where there is a shelter belt, or within 30 metres of public land where there is no shelter belt giving effective protection between the application and private land. Those requirements were not met in this case.
[25] The company bears responsibility for the actions of its employees. In this case the Orchard Manager was on duty and should have monitored more closely the actions of the sprayer operator. For example, compliance with the requirements of the Plan as to the placement of signs and response to weather conditions should have been to the forefront of the Orchard Manager’s mind. In those circumstances I find the company careless but not highly careless as it did ensure that its employees had the required training.
Starting point
[26] Ms Graham referred me to Bay of Plenty Regional Council v Crawshaw (Crawshaw).10 Three entities were charged in relation to a spraying incident. Spraying of herbicide occurred on a property where there was no windbreak or other buffer between that property and adjoining land. A crop on the adjoining land was significantly damaged by spray drift from the spraying, with the drift being in clear breach of the rules. The Court considered the nature of the defendant’s business and that they must be aware of their legal obligations under the regional rules. It also considered the environment affected and the extent of the damage. In considering deliberateness, weight was placed on the failure to notify the neighbour that spraying was to be undertaken and the risk in spraying close to the boundary. It found an appropriate starting point for assessment of a global penalty was in the range of
$15,000 - $20,000.
[27] Ms Graham submitted that this offending involved an experienced horticultural company who were highly careless in their operations on this day. She noted the impact on the complainants, and also noted with regard to Crawshaw that the maximum penalty for this type of offence has increased since that decision. She proposed a starting point in the vicinity of $20,000 submitting that it is in line with decisions involving smoke from fires and breach of regional rules.
[28] Ms Blomfield accepted that a starting point of $20,000 was reasonable on the basis that conditions had been suitable when the spray operations began very early in the morning. She acknowledged that spraying should have stopped when the conditions became less favourable but submitted that does not make the company’s behaviour ‘highly careless’. It employs suitably qualified sprayer operators to work in its orchards. It has systems and procedures in place for situations like this and provides regular refresher training for all staff.
[29] In the circumstances of this case, I consider that a starting point of $20,000 is appropriate. That is on the basis that the environment effects of the offending were
10 Bay of Plenty Regional Council v Crawshaw, DC Whakatane, CRI-2006-087-733, 735 & 768, 8 February 2007.
low but that there were effects on the cyclists who were on the Path at the time spraying was occurring; and having determined that the company must take responsibility for the actions of its employees on that day.
Aggravating and mitigating features
[30] Ms Graham noted that the company has previously been the subject of spray drift complaints and been warned on one prior occasion. She did not seek a specific uplift but submitted this factor must be balanced against any submission seeking a discount based on a previous good record.
[31] Ms Blomfield submitted that although the company has had some warnings, it should receive a discount for generally good behaviour. I was also asked to take into account the company’s response to the event; its cooperation and steps taken to review its training procedures and policies to make it clear that operators are trained in and understand the conditions in which they should operate, and when they must cease, and that interactions with Council officers are reported to the senior management.
[32] Ms Blomfield submitted that Mr Paynter has discussed this incident at three of the weekly meetings held with the Orchard Managers and has shown them the video footage taken by the Council’s Environment Compliance officer. She advised that laminated notices have been placed on the wall in every unit on every orchard, together with maps of the Orchard block that include identification of sensitive areas (these maps having previously been kept in a folder in the units). I note the previous complaints about spray drift and the warning given. I consider however that the company may be entitled to a discount of five percent for its good character and the initiatives it has taken to ensure an incident of this type is not repeated.
[33] In the event that this sentence indication is accepted, both counsel accept that the company would be entitled to a 25 percent discount as the indication was sought at the earliest opportunity.
[34] Finally, I note the Court of Appeal in Moses v R11 has determined that a two- step sentencing methodology must now be applied. That is how I have approached this sentence indication.
Outcome
[35] If this sentence indication were accepted the company would be fined $14,000 with 90 percent of the fine being paid to the Council in terms of section 342 of the Act.
Judge MJL Dickey
District Court Judge and Environment Judge
Date of authentication: 06/10/2020
In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.
11 Moses v R [2020] NZCA 296.
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