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District Court of New Zealand |
Last Updated: 17 June 2021
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IN THE DISTRICT COURT AT HASTINGS
I TE KŌTI-Ā-ROHE KI HERETAUNGA
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CRI-2019-081-000190
[2021] NZDC 7464 |
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HAWKE’S BAY REGIONAL COUNCIL
Prosecutor
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v
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ANGELA MARIE PAYNE
Defendant
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Hearing:
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30 March 2021 via AVL
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Appearances:
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NM Graham for the Prosecutor MK Booth for Angela Payne
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Judgment:
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27 May 2021
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SENTENCING DECISION OF JUDGE MJL DICKEY
[1] Ms Angela Payne (the defendant) pleaded guilty to one charge of discharging a contaminant (smoke and its constituents) into the air pursuant to ss 15(2A), 338(1)(a) and 339 of the Resource Management Act 199 (the Act).
[2] The charge relates to a fire in a rubbish pit at the defendant’s property in Waipukurau. A number of prohibited items were in the fire in breach of Rule 20 of the Hawke’s Bay Regional Resource Management Plan.
[3] The maximum penalty is a fine not exceeding $300,000 or a term of imprisonment not exceeding two years.
HAWKE’S BAY REGIONAL COUNCIL v ANGELA MARIE PAYNE [2021] NZDC 7464 [27 May 2021]
Background1
[4] The property at 9 Hatuma Road, Waipukurau (the property) is owned by the defendant and DAC Hadlow Trustee Limited, as trustees of the Hadlow Trust.
Statutory framework2
[5] Outdoor fires are regulated by the Hawke’s Bay Regional Resource Management Plan and it is prohibited to burn certain items at any time of year. Rule 20 specifies the prohibited activity as follows:
Except as provided for in Rules 19 and 20a the discharge of contaminants into air arising from the burning in the open, and/or in a small scale fuel burner of:
The offending3
[6] On 19 August 2019 a fire was started at the property.
[7] The fire was brought to the attention of Hawke’s Bay Regional Council (the Council) at 1520 hours on 19 August 2019 by a report to the pollution hotline of thick black smoke being discharged from the property.
1 Summary of Facts at [1].
2 Summary of Facts at [13].
3 Summary of Facts at [2]-[12] and [15].
[8] Officers from the Council attended the property and observed the smoke as they approached.
[9] On arrival at 1650 hours the fire was located in a pit approximately eight metres by eight metres square. Officers observed the fire burning from the centre of the pit to the southern end with the northern end of the pit smouldering.
[10] The pit contained tree trimmings and also the following prohibited materials:
- Polystyrene
- Items of furniture
- Inner sprung mattresses
- Chest freezer
- Microwave oven
- Metal strapping
- Oil filled heater
- Other plastic items.
[11] The defendant arrived at 1700 hours. She admitted that the fire had been lit on her instructions by her “woofer” Mr Kenji Takemoto but stated that she had only wanted one end of the pit to be burnt being the tree trimmings. The defendant stated that she did not want the items like the freezer burnt, she also said that a tenant had dumped rubbish in the hole, after she instructed them not to bring their waste from home.
[12] The defendant was told to extinguish the fire. She was reluctant to do so stating that she wanted to keep burning the items in the pit that were not prohibited but she eventually agreed to extinguish it and did so.
[13] The Council officer left at 1715 hours.
[14] On 23 August 2019 the Council was made aware of a further fire in the same vicinity. An officer drove to the property and entered the site and saw a fire burning in the same pit as on 19 August 2019.
[15] The defendant approached the officer and advised that they were only burning some branches from a gum tree. While there were branches in the pit that were alight, the fire had spread to other items which were burnt, including an aerosol container, tin cans, metal, a metal chair frame and other items. All previously sighted items were still in the pit.
[16] The defendant advised the officer that following the first incident she had asked Mr Takemoto to pile up the branches onto a trailer so that they could be taken to another site. He had instead put them in the pit and set them alight. The defendant went with the officer to the other site and confirmed that fires burning at that site were legal.
[17] The discharge of smoke from these fires was an offence against s 15(2A) of the Act and was expressly prohibited by Rule 20 of the Hawke’s Bay Regional Resource Management Plan.
[18] The charge relates to the events of 23 August 2019 only.
Sentencing
[19] The purposes and principles in the Sentencing Act 2002 apply. A helpful summary of the matters to which the Court should have regard and that have been identified as being relevant to offending under the Act are set out by the High Court in Thurston v Manawatu-Wanganui Regional Council.4 They include the offender’s culpability; any infrastructural or other precautions taken to prevent or otherwise avoid unauthorised discharges; the sensitivity, vulnerability or ecological importance of the receiving environment and the extent of any damage to it; the principle of deterrence;
4 Thurston v Manawatu-Wanganui Regional Council HC Palmerston North CRI-2009-454-24, - 25,
- 27, 27 August 2010 at [41].
the capacity of the defendant to pay a fine; disregard for Council requirements; cooperation, and guilty pleas.
Environmental effects
[20] The Summary of Facts records the following:5
Prohibited items were identified in the fires at 9 Hatuma Road, Waipukurau. The burning of these items is not only associated with nuisance dense smoke but also emissions of hazardous air pollutants known to cause cancer or serious health effects and that persist in the environment and accumulate in body tissue when ingested. These include polycyclic aromatic hydrocarbons (PAHs) and dioxin.
[21] Ms Graham submitted that this type of burning adds to the poor air quality in general, and it is that very fact that the rules are designed to protect. She observed that the property is in a rural area but the fact a complaint was received by the Council means the smoke was a nuisance to someone.
[22] The defendant accepts that this type of burning impacts on air quality and results in nuisance smoke. Mr Booth submitted there is no suggestion that this offending has impacted on a particularly vulnerable environment or environment of heightened ecological importance. He submitted the extent of the environmental impact in this case is relatively low and limited.
[23] I find that, while there is no direct evidence of the effects of this fire in this location, this fire would have contributed to the adverse cumulative effects of open fires burning prohibited materials in the area.
Culpability
[24] Ms Graham submitted the lighting of the fire on the first occasion was on the defendant’s instructions. The second occasion was through a lack of direction and supervision.
5 Summary of Facts at [14].
[25] Ms Graham submitted the offence was easily avoided. Burning of rubbish is widely condemned and the Council has information on their website regarding what can be burned, when and how. She submitted burning branches in a pit full of rubbish is irresponsible to say the least.
[26] Ms Graham submitted that clearly no precautions were taken to prevent the offence. There was no direct supervision and no effort made to remove all rubbish items from the pit so a repeat did not occur.
[27] Mr Booth submitted that it is clear from the instructions given by Ms Payne to Mr Takemoto that the offending was not intentional or reckless as she had tried to ensure that the prohibited materials were not burned. He submitted the defendant’s culpability for the offending is low.
[28] Mr Booth submitted in both instances Ms Payne attempted, through her instructions to Mr Takemoto, to prevent the burning of prohibited materials. He submitted that, with respect to the offending in question, being that of 23 August 2019 only, the instructions to Mr Takemoto were not to light a fire at all. Mr Booth submitted that in the circumstances the defendant took all reasonable steps to prevent the offending, namely, by asking him not to take any action which could risk offending occurring.
[29] There is some dispute about what happened on 23 August 2019. Ms Graham noted that the defendant provided an explanation through submissions that she had asked Mr Takemoto to pile the branches on a trailer to take to a different property. She submitted that is in contrast to what was agreed in the Summary of Facts; that the defendant was on the property when the Council officer arrived and told him they were only burning some branches from a gum tree. Ms Graham submitted it therefore seemed the defendant was aware the branches were being burned on the property and not on the other site. Once the mistake was noted the fire should have been extinguished immediately.
[30] Mr Booth submitted that Ms Graham’s inference that Ms Payne was aware of the branches being burned on 23 August 2019 at the property is inconsistent with the
Summary of Facts and the contemporaneous Council officer notes. Mr Booth submitted that there is nothing in Ms Payne’s comment. The defendant had just had a Council officer turn up at her property when she thought she had given very clear instructions to Mr Takemoto not the burn any more branches. Mr Booth submitted Ms Payne’s efforts to minimise the situation on becoming aware of the incident can be understood in those circumstances.
[31] It is clear from the Summary of Facts that Ms Payne was present at the site while the fire was burning on 23 August 2019. While Ms Payne stated that she had given instructions to Mr Takemoto about the burning of material, the fact remains that she was there on 23 August 2019 while the fire was burning. She could have taken steps to extinguish the fire but did not.
[32] I find that the offending was careless. While Ms Payne took some steps to prevent a recurrence of what happened on 19 August 2019, she did not do enough. Everything that was present in the pit from the first fire was still present at the second fire. In fact, certain of the prohibited items are easily identified in the photographs. If Ms Payne had adequately inspected the pit she would have seen those items.
Starting point
[33] Ms Graham was unable to locate any decisions that deal specifically with the burning of items in a rubbish pit. The majority of decisions relate to burning of allowed materials where prohibited items have been included either inadvertently or deliberately or burning of materials that have been cleared by demolition or other contractors where sorting of the materials has not happened.
[34] Ms Graham submitted this offending is more akin to the latter situation, being that it involved burning within a pit that had as its sole purpose, containment of rubbish. She submitted there can be no suggestion that prohibited items were inadvertently added.
[35] Ms Graham referred to two cases by way of comparison in support of her submission regarding a starting point of up to $17,000. Those cases were Hawke’s
Bay Regional Council v Hastings Demolition Limited (Hastings Demolition)6 and
Hawke’s Bay Regional Council v Santo Drainage and Contracting Limited (Santo).7
[36] Hastings Demolition related to the burning of timber stripped during the course of clearing a site. A starting point of $17,000 was adopted. The fire was lit by an employee of the demolition company. The defendant claimed that causal employees had put toxic material on the fire whilst the foreman was offsite. The fire was not in breach of the Airshed rules and burned for around three hours.
[37] In Santo the fire was lit by an employee of the land contractor as part of a land clearing exercise and included prohibited items. The fire was in breach of Airshed rules and burned for around 30 minutes. A starting point of $18,000 was adopted.
[38] Mr Booth submitted the cases referred to by Ms Graham are of limited relevance as the offending in the current case is a case of inadvertent burning of prohibited materials. Mr Booth submitted that both Hastings Demolition and Santo involve offending by companies, so attract a higher maximum penalty than offending by a natural person – indeed the maximum penalty for offending by a natural person is half of that for offending by a company. He submitted that, to the extent that these cases are relevant, accounting for that factor is necessary.
[39] Mr Booth submitted that Hastings Demolition involved more serious offending than the current case. In particular, it involved a deliberately lit fire which burned a variety of prohibited materials for about three hours. A key factor in setting the starting point was that the company could have taken more care with its monitoring of the fire. Mr Booth submitted this factor was not applicable to the current case. Ms Payne could not have done more than to instruct Mr Takemoto not to light a fire in the pit.
[40] Mr Booth submitted that Santo also involved more serious offending than the current case. Santo involved the deliberate lighting of a fire which discharged a large plume of smoke close to a densely populated residential area and the Hastings Airshed.
6 Hawkes’ Bay Regional Council v Hastings Demolition Limited [2020] NZDC 20030.
7 Hawkes’ Bay Regional Council v Santo Drainage and Contracting Limited [2020] NZDC 4414.
He submitted the starting point, or its equivalent for a natural person, is therefore higher than is appropriate for the current offending.
[41] Mr Booth referred to a further four cases in support of his submission regarding a starting point of $5,000. Those cases were Waikato Regional Council v Matijasevich (Matijasevich)8, Otago Regional Council v Cockroft (Cockroft)9, Otago Regional Council v Paterson (Paterson)10, and Otago Regional Council v Bendall (Bendall).11
[42] In Matijasevich the defendant pleaded guilty to one charge associated with the burning of around 34 automotive tyres over a period of about two hours. The Court noted that once the defendant was informed that tyre burning was dangerous and prohibited, they moved quickly to apologise, to fix the problem and remediate. A starting point of $12,000 was adopted.
[43] In Cockroft the defendant burned green and prohibited materials, namely tyres, in or close to a vulnerable Airshed. A starting point of $5,000 was adopted. Ultimately the Court determined discharge without conviction was appropriate based on there being no particular adverse effects of the offending, and the stigma of conviction was a real or potential consequence – conviction would remain as a mark against the defendant’s demonstrable good character which would be all out of proportion to the seriousness of the offending.
[44] In Paterson the defendant pleaded guilty to one charge of discharging contaminants to air. The offending involved burning of tyres, tubes and other rubber products, a vehicle part and plastic bailage wrap, over a period of about six hours, in proximity (within 2km) to a town. There was evidence that the fire had caused increased particulate matter in the air. A starting point of $12,000 was adopted.
[45] In Bendall the defendant pleaded guilty to two charges relating to a fire in a large pit. Mr Bendall managed the farm property. Plastic materials and the tyres in the pit had caught fire, but the other items had not. The affected environment was
8 Waikato Regional Council v Matijasevich [2018] NZDC 26911.
9 Otago Regional Council v Cockroft [2015] NZDC 20608.
10 Otago Regional Council v Paterson [2015] NZDC 7128.
11 Otago Regional Council v Bendall DC Dunedin CRI-2014-002-12, 26 May 2014.
sparsely populated rural land, about 10 km from the nearest residential development. The Court concluded that due to the short duration of the fire and the remote location it was unlikely that that any adverse effect was experienced. The offending was deliberate; although the Court accepted that Mr Bendall was unaware the activity was prohibited. The Court adopted a starting point of $8,000.
[46] Mr Booth submitted that the current case is similar to the case of Cockroft. He submitted that Bendall and Paterson involved a more serious level of offending. In particular in Paterson, a variety of prohibited materials was deliberately burned over a six-hour period near a vulnerable environment. Mr Booth submitted there are similarities with Matijasevich where the fire had burning for a similar period of time.
[47] Mr Booth submitted this case is somewhat unique from other cases in that the action constituting the offending was not intended; typically, the fire which discharges the contaminant to air is intended. He submitted that this is not the case here, where Ms Payne had never intended for a fire to be burned; and that it is highly relevant that Ms Payne was not directly responsible for the action.
[48] A fire was lit that contained prohibited items. The adverse effects on the environment of such fires are clear and not in dispute. Ms Payne had not adequately inspected the pit to ensure that the prohibited items from the first fire had been removed. While Ms Payne had asked Mr Takemoto to pile up the branches onto a trailer so that they could be taken to another site, and he had instead put them in the pit and set them alight, the fact remains that she was there and a fire was burning. She could have taken steps to extinguish the fire and did not. In those circumstances I determine that an appropriate starting point is $15,000.
Application for discharge without conviction
[49] The defendant has made an application for discharge without conviction. The Council opposes the application.
[50] Sections 106 and 107 of the Sentencing Act 2002 apply. The established three stage analysis for discharge without conviction is: first, the gravity of the offending
(taking into account all aggravating and mitigating factors of the offending and the offender); secondly, what are the direct and indirect consequences of a conviction on the defendant; and, thirdly, an assessment of whether those consequences are out of all proportion to the gravity of the offending. Overall, the Court retains a discretion to grant or refuse the application after considering those matters.
Gravity of the offending
[51] Mr Booth submitted that the actions to which the charge relate, namely the lighting of a fire in a rubbish pit, were carried out by Mr Takemoto; that the defendant had taken necessary steps to ensure that prohibited items were not burned.
[52] Mr Booth submitted the gravity of the offence is on the low end of the scale of seriousness overall because:
- (a) Ms Payne did not intend for the prohibited materials to be burned and the fact that they were burned was an accident;
- (b) Ms Payne was not directly responsible for the offending;
- (c) The fire burned only for a short period of time and not all of the prohibited items in the rubbish pit were burned, which reflects that the materials were not intended to be burned;
- (d) There is no vulnerable airshed nearby;
- (e) There is no evidence of harm to other property or people.
[53] Ms Graham submitted the offence was not trivial and the defendant did nothing to ensure her worker did not burn the branches outside the pit. The fact that a second fire occurred means the gravity is higher than it would otherwise be.
[54] I have found that Ms Payne was careless in this matter. This is not trivial offending as it involved the burning of prohibited materials. While there was no
evidence of direct environmental effects from the fire, there is no doubt that fires such as this contribute to poor air quality.
Direct and indirect consequences of the conviction
[55] Mr Booth submitted that a conviction will have an impact of Ms Payne’s business, (the Company), and in turn have further negative effects on Ms Payne.
[56] In her affidavit, Ms Payne set out that she is the sole director and shareholder of the Company. Ms Payne stated that in her work her reputation in relation to environmental issues matters; the Company deals with raw animal products, knowing that the products are sourced from natural conditions and that the business has minimal environmental impact is very important to her clients. Ms Payne stated while this incident has nothing to do with the Company, she is the sole director and the face of her business, so her reputation is closely tied to that of the Company.
[57] Mr Booth submitted that the Company trades on New Zealand’s clean green image. The livestock and plants used in the Company’s products have been raised using chemical free, uncontaminated water. The farming practices are sustainable with full traceability, are GE free and have a low carbon footprint. He submitted that the Company is a relatively small, but successful business. Like all small businesses, it has faced challenges in the last year due to the COVID-19 pandemic – but particularly so given the importance of exports to the business.
[58] Mr Booth submitted that the Company’s reputation is closely tied to Ms Payne’s as she is the sole director and face of the Company. A conviction under the Act will have particularly adverse flow-on consequences for the Company due to the importance of its environmental reputation to its clients – the general concept of ‘Eco friendliness’ has contributed to the success of Ms Payne’s business.
[59] Mr Booth submitted there is a serious risk that the stigma of a conviction under the Act in this case carries consequences beyond the usual consequences of conviction
– namely, a justifiable adverse impact on the reputation of the Company with the potential for flow-on adverse financial consequences for Ms Payne and her employees.
[60] In response, Ms Graham submitted any risk is speculative at best and the actual consequences are not identified. There is no evidence that any contracts will be lost or any evidence of actual adverse impacts that may occur. She submitted there is nothing provided to the Court to satisfy it that there is a real and appreciable risk that the consequences contended in support of the discharge might come about.
Proportionality
[61] Mr Booth submitted that the direct and indirect consequences to Ms Payne from a conviction are disproportionate to her culpability for, and gravity of, the offending. It was submitted the Court should place weight on the fact that:
- (a) Ms Payne did not know or intend that prohibited material would be burned. Mr Takemoto misunderstood her instructions which led to the discharge;
- (b) The offending resulted in low environment impact; and
- (c) Ms Payne has an otherwise clean record and otherwise a good environmental record on which her business trades.
[62] Ms Graham submitted a conviction is an appropriate response. The offending in this case occurred because the defendant failed to supervise her worker and ensure that he understood her instructions. The fact that this was the second fire within four days is relevant. This was a rubbish pit on her property, and she was responsible for what was in it and what was being put into it.
[63] Ms Graham noted that a conviction for this offence does not need to be seen negatively for the defendant in line with the explanations that she has provided. Owning the failure by her worker and herself, and using this as an example of how environmental practices can be improved does not necessarily detract from the reputation she has built. In all of the circumstances, Ms Graham submitted that no real and appreciable consequences have been pointed to that would be out of all proportion to the gravity of this offending.
[64] I have found the offending was careless. While the defendant gave instructions to Mr Takemoto, she was also on site at the time of the fire. Ms Payne did not approach the matter with sufficient care. I accept that Ms Payne is the sole director and shareholder of the Company and is the face of the Company. I have no evidence before me, however, of real and appreciable consequences of a conviction on the reputation of Ms Payne and by extension the Company. I do not consider that the consequences of the conviction outweigh the gravity of the offending. The circumstances of the offending are unrelated to the Company12 and its business. It is therefore difficult to see how negative inferences could be drawn from Ms Payne’s conviction such as to impact the Company. I therefore decline the application for discharge without conviction.
Aggravating and mitigating features
[65] Ms Graham acknowledged there is nothing by way of background that the Court needs to recognise as an aggravating feature at sentencing. She submitted the defendant’s previous good history entitles her to a discount which is routinely around five percent. Mr Booth agreed.
[66] Ms Graham acknowledged a discount to recognise the plea of guilty was appropriate. Ms Graham submitted a discount of around 20 percent is appropriate because the plea was delayed, coming after the Council agreed to withdraw the charges against the defendant’s company. Mr Booth submitted that this delay should not detract from Ms Payne accepting responsibility because from as early as February 2020 the defendant sought to resolve this matter directly with the Council. Mr Booth submitted a discount of 25 percent is appropriate.
[67] In this case I allow a five per cent discount to acknowledge the defendant’s past good conduct. I also allow a 20 percent discount for the defendant’s guilty plea.
12 Affidavit of Ms Payne sworn on 11 March 2021, at [10].
Outcome
[68] I have adopted the two-step sentencing methodology outlined by the Court in
Moses v R. 13
[69] Accordingly, the defendant is convicted and ordered to pay a fine of $11,250. In terms of s 342(2) of the Act, I order that ninety percent of the fine be paid to Hawke’s Bay Regional Council.
Judge MJL Dickey
District Court Judge
Date of authentication: 27/05/2021
In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.
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