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District Court of New Zealand |
Last Updated: 1 July 2023
IN THE DISTRICT COURT AT INVERCARGILL
I TE KŌTI-Ā-ROHE KI WAIHŌPAI
[2023] NZDC 11993 CRI-2020-025-000660
THE KING
Prosecutor v
CHARLES EDWARD FRANCIS KIDD
Defendant
Sentencing: 9 June 2023
Reserved Reasons: 14 June 2023
Appearances: R P Bates for the Crown
S Vidal for the
defendant
RESERVED REASONS OF JUDGE JJM HASSAN ON SENTENCING
[1] Mr Kidd, following trial by jury, you were found guilty of a charge that you breached an enforcement order (‘Order’) made by the District Court under the Resource Management Act 1991 (‘RMA’). That was by failing to:
- (a) engage an ‘approved person’, being an expert approved by the Regional Council, to assess the oil storage facility on your property; and
- (b) submit a report from that approved person to Southland Regional Council by 10 October 2019 i.e. the due date under the Order.
[2] On 9 June 2023, you appeared for sentencing and were convicted and fined the sum of $15,000 on that charge. In view of travel exigencies and your hearing difficulties, as I then explained, I reserved my reasons which I now deliver.
[3] The Order was imposed as part of sentencing for an RMA offence of unlawfully discharging waste oil to land in circumstances where it may enter water. That was from an oil storage facility on your property at 10 Church Street, Winton. Your sentence on that occasion also included a fine of $25,000. The Order was imposed on terms agreed on your behalf by your counsel at that time. At trial for your breach of that Order, you admitted all elements of the charge, namely that you were duly served with the Order and you failed to engage an approved person and submit the required report by 10 October 2019. You failed to establish your defence that you took all reasonable steps to comply with the Order. The evidence did not bear out your claims that you had done so.
[4] At one stage in giving evidence at trial you made an observation that, had you known the Order would have been part of sentencing, you would have pleaded not guilty to the initial charge concerning your unlawful discharge of waste oil. Yet the Order was then imposed in sentencing on a basis agreed between your counsel and the prosecutor. As for the associated fine imposed for that initial offending you further remarked “it didn’t cost me one cent”.1 That was with reference to your explanation that your insurance company covered your fine costs on the basis of your guilty plea.
[5] It appears, and I accept, that you removed the oil storage facility from your Winton property and sold it to a third party soon after you were sentenced on that first occasion. Insofar as that may have put to an end the ongoing environmental risk that was associated with that facility and to which the Order pertained, you did not inform the Council about that. Nor did your action there remove the onus on you, as the offender, to abide the rule of law in regard to the sentence imposed on
you. I will also return to that matter when considering sentencing factors.
Sentencing purpose and principles
[6] I am to sentence you according to the purposes and principles of sentencing. These are as set out in ss 7 and 8 of the Sentencing Act 2002 (‘SA’). Relevant purposes include:
- (a) holding you accountable for harm done to the victim and the community by the offending;
- (b) promoting in you a sense of responsibility for, and an acknowledgment of, that harm;
- (c) denouncing the conduct in which you were involved; and
- (d) deterring you and other persons from committing the same or a similar offence.
[7] The lens of the RMA’s sustainable management purpose is applied in the consideration of these matters. That includes considering the nature and sensitivity of the environment and the environmental harm inflicted by offending. While the environmental harm here was minimal, deliberate disregard of a Court order should not be viewed lightly.2 Denouncing your disrespect for the rule of law and deterring you and others from re-offending in this manner are central in my consideration of an appropriate sentence.
[8] You are a difficult fractious man Mr Kidd. In your evidence and approach at trial, you display a particular dislike of the Regional Council. Indeed, in evidence you unfairly characterised the Council as a “pack of liars”. There was also a clear sense from some Council officers who gave evidence that they found you are a difficult man to deal with. You are your own worst enemy in those terms.
[9] You can be assured, however, that I have set these matters aside insofar as
they do not bear on what is relevant to the offending at issue. That is particularly in terms of related sentencing principles. My focus is on the offending at issue in the charge for which you have been found guilty and convicted. I am to take account of the gravity of the offending in this particular case and the degree of your culpability. I am also to consider the seriousness of the type of offence in comparison with other types of offences, as indicated by the maximum penalties prescribed for the offences. Moreover I am to have regard to the general desirability of consistency in respect of similar offenders committing similar offences in similar circumstances. I am to impose the least restrictive outcome that is appropriate in the circumstances, in accordance with the hierarchy of sentences and orders set out in s10A, SA.
[10] Your counsel, Ms Vidal, emphasised the totality principle, referring to s85(2), SA. She submitted that sentencing on this occasion should be limited to matters concerning your culpability for failing to abide the Order, leaving aside any consideration of environmental damage. That was on the premise that the fine imposed for your initial offence of unlawful waste oil discharge as addressing “the issue of environmental damage”. That was in addition to pointing out that, were the Court to intend to review the sentence imposed for your initial waste oil discharge offending, notice must be given and it was not. On that aspect, I made clear that there is no intention to undertake such a review.
[11] I treat your offence of breach of the Order according to the specifications of the RMA. Your initial offence was against s338(1)(a) RMA, namely that you contravened s15 RMA in your part in the offending waste oil discharge. The present offence of breach of the Order is against s338(1)(b). That provision is to the effect that every person commits an offence who contravenes any enforcement order. That is the position under the RMA whether the enforcement order was made by the Environment Court or under s339(5) by the District Court on conviction of an offence. Related to that, the initial offence was one of strict liability under s341(1), RMA, whereas the offence for breach of the Order was according to a different liability regime that encompassed your capacity to run the
defence you did not succeed in. In essence, the present offence is a second offence by you under the RMA, namely of breaching an enforcement order albeit one imposed in sentencing you for the initial offence.
[12] Nevertheless, I accept the position that the environmental harm dimensions of your initial offending were addressed in sentencing for that offence, both in terms of the fine and the Order. I do not revisit those environmental harm matters now. Instead my focus is on what occurred as a consequence of your breach of the Order. I accept that the environmental harm dimensions of your breach of the Order were very confined both in time and risk. In effect, you may have put the environment at some risk of a further spillage incident. That risk is fairly measurable as a potential adverse effect for sentencing purposes. However, that was a risk that continued only until such time as you removed the oil storage facility from your property and disposed of it to a third person. I give you the benefit of doubt in proceeding on the footing that you disposed of the facility and removed it from the property within a few weeks or so of having been sentenced for your initial offending.
[13] I derive your sentence in stages.3 First I calculate a starting point, adjusted from the consideration of aggravating and mitigating features of the offence. Then, I incorporate any factors (aggravating, mitigating) personal to you as the offender.
The nature and sensitivity of the environment and the environmental harm inflicted
[14] In sentencing you for your initial offending, His Honour Judge Dwyer noted the lack of any “back-up controls” “such as bunding, secondary containment of oil and/or automatic shut-off to protect against normal human failures”. He identified you as having particular culpability for those deficiencies. The Order was plainly imposed as a means of protecting against the risk of another spillage,
3 Moses v R [2020] NZCA 296, at [45]-[47].
in that it specifies that it is intended to ensure the facility would not be “prone to further discharges” (Cond 3(b)). Timely attention to getting properly designed contingency measures in place was indicated by the timeline imposed for completion of the steps you failed to complete, i.e. “within three months” of the Order being made (in essence by 10 October 2019). Giving you the benefit of doubt and hence assuming you removed the facility within a few weeks or so of having been sentenced for that initial offending, I find you caused only that few weeks of temporary risk of a further accidental spillage but no actual environmental harm beyond that. Hence, this is not a significant factor against you in sentencing.
Culpability and attitudinal factors
[15] You left the Council entirely in the dark about your disposal of the oil storage facility. While it was your responsibility to comply with the Order, you left the Council to assume that the environmental risk you caused remained. That is despite their efforts to ascertain the status of things. As the local authority responsible for pollution matters of this nature, and the relevant prosecuting agency, the Council was essentially left to have to follow up in the way that it did. I reject any proposition you still nurse that you were in any way rendered unable to comply with the Order by any fault on the Council’s part. That amounts to blame-shifting on your part Mr Kidd. Therefore, I find you were highly culpable in your offending.
Harm done to the community by your offending
[16] Your obstructive approach caused Regional Council ratepayers to incur the associated cost of that follow up leading ultimately to the charge being laid in regard to your breach of the Order. Therefore, your behaviour in your offending caused harm to the community that was readily avoidable.
[17] Having heard from counsel, I agree that the most comparable cases are R v Gifford, Bay of Plenty Regional Council v Merrie and Christchurch City Council v Owaka,
although I find your offending in this case was comparably materially less serious than in each of them.
[18] R v Gifford involved several charges against two defendants for offences that involved comparatively much greater environmental harm. This was with respect to a number of properties, including for unlawful discharges of grape marc leachate, tracking, landfilling and associated breaches of an enforcement order made by the Environment Court. For the enforcement order breach charges, a global starting point of $25,000 was set.
[19] Bay of Plenty Regional Council v Merrie involved offences in relation to end-of- life tyre stockpiling. His Honour Judge Kirkpatrick determined that, in view of the fact that the abatement notice contravention was over a considerable period of time, the starting point should be a fine of $30,000.
[20] Christchurch City Council v Owaka, decided in 2013, involved breaches of an enforcement order associated with unlawfully depositing material into a pond, in essence deliberate flouting, and a starting point of $27,000 was set.4 While I find you were deliberate in your offending, I do not go as far as to characterise it as flouting in that you made some inquiries of Council members before effectively choosing on your own to sell the oil storage facility and have it removed from your property.
[21] A case that was not referred to me but which I consider to bear closer comparison in terms of the lack of significant environmental harm is Tasman District Council v Dunlop. It concerned charges for an unlawful burning of waste material in breach of an abatement notice. His Honour Judge Dwyer was mindful that breaches of abatement notice charges typically result in fines in the range of
$25,000. However, he determined on a starting point for the enforcement order charge of $8,000. He noted as a reason the importance of maintaining proportionality with the starting point he set for the unlawful burning charge (also
$8,000).5
[22] In a comparative sense, I find that your deliberate choice not to comply with the Order imposed in your sentencing for your initial RMA pollution offending was comparatively more serious than the culpability of the defendants in R v Gifford, Bay of Plenty Regional Council v Merrie and Christchurch City Council v Owaka. However, looking at matters in the round, I find your offending was still materially less serious than in each of those cases. That is both in view of the minimal short term environmental risk you caused and the fact that your breach of the Order was for a much more confined period of time. In an overall sense, I find the deliberateness of your offending renders it materially more serious than in Tasman District Council v Dunlop.
[23] For completeness, I agree with counsel that none of the other cases discussed bears any helpful comparison to this one. Both of the R v McIntyre cases to which I referred (the first in 20156 and the second in 2022)7 involved materially greater culpability over an extended period of time. Canterbury Regional Council v Annexure Tyre Services Ltd8 involved a sole director (Mr Benden) in a position to exert influence to address what was a very significant environmental harm offence (in stockpiling a large number of tyres on a rural property near Amberley).
[24] I agree with counsel that the appropriate sentence is by way of a fine. A custodial sentence would be plainly disproportionate. In view of the pre- sentencing report, which recommends a fine, I do not consider a community sentence appropriate in this case. I determine the starting point should be a fine in the order of $15,000.
Aggravating or mitigating factors personal to the defendant
[25] As I have accounted for the deliberateness of your offending in deriving my starting point, I do not find any basis for adding any uplift for this. Nor do I find any personal mitigating factors. This is a second RMA offence associated with your unlawful operation of the oil storage facility at the property. You show no remorse or indeed any real acknowledgement of your culpability in this offending. I do not treat your removal of the facility from the property as demonstrating remorse in the circumstances of you leaving the Regional Council uninformed and not complying with the Order.
Financial capacity to pay a fine
[26] Counsel confirmed you are in a position to pay an appropriate fine.
[27] Charles Edward Francis Kidd, having been found guilty and convicted on the charge that you breached an enforcement order made by the District Court, you are hereby sentenced to a fine of the sum of $15,000.
[28] Under s342 RMA, 90% of that amount is to be paid to the Regional Council (i.e. the full sum less 10% credited to the Crown Bank Account).
[29] You are ordered to pay court and solicitor costs according to scale under the Costs in Criminal Cases Regulations 1987. Court costs are $130. Solicitors’ costs are at a rate of $226 for each half day (or part of half day) occupied in court, with the final calculated amount to be as advised by the Registrar.
J J M Hassan
District Court Judge and Environment Judge
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URL: http://www.nzlii.org/nz/cases/NZDC/2023/11993.html