Burrows v Otago Regional Council [2015] NZHC 861 (29 April 2015)

Last Updated: 4 May 2015

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2015-412-000004 [2015] NZHC 861

BETWEEN	JOHN DOUGLAS BURROWS Appellant
AND	OTAGO REGIONAL COUNCIL Respondent

Hearing:	1 April 2015
Appearances:	K E Tohill for Appellant A J Logan for Respondent
Judgment:	29 April 2015

_{JUDGMENT OF GENDALL J}

Introduction

[1] The appellant (Mr Burrows) was charged and pleaded guilty in the District Court at Dunedin to two charges under the Resource Management Act 1991 (the RMA) of:

(a) discharging effluent to land in circumstances where it may enter water;¹ and

(b) discharging effluent to saturated soils in breach of a Regional Rule.²

[2] On 23 January 2015 Judge Dwyer in the District Court refused to grant Mr Burrows a discharge without conviction and imposed fines on the two charges totalling $7120 and ordered Mr Burrows to pay solicitors costs of $226 and court

_{costs of $130 on each charge.}

¹ _{Resource Management Act 1991, s 15(1)(b).}

² Resource Management Act 1991, s 15(2A).

[3] In doing so, Judge Dwyer set out the relevant background details to the offending in his judgment:³

[3] Alpine is or was at the time of the offending the sharemilker on a dairy farm at Georgetown in the Waitaki Valley. The farm is owned by a company called Kowhai Dairy Limited and Alpine is also a shareholder in that company. Eight hundred and fifty cows are milked on the farm.

[4] Mr Burrows is a director of Alpine and oversees the farm on a day to day basis. An employee was responsible for running the effluent system from the dairy shed where the offending occurred at the time of the offence but subject to Mr Burrows’ overall control. I formally record that Mr Burrows was not personally operating the effluent system at the time of the offending.

[5] On 19 February 2014 a Council enforcement officer inspected the farm and found that both a travelling effluent irrigator and K-line irrigation system were operating in reasonably close proximity to each other. No one was present at the time to monitor operation of the irrigators. Soils in the vicinity were saturated and effluent was running off the land surface into a drain which was carrying a mix of irrigation water from the K-line and effluent from the travelling irrigator. This mix was found in the drain for a distance of up to 640 metres before it could no longer be tracked due to the terrain of the farm.

[6] The environment affected by the offending is in the Waitaki Valley. The ultimate destination of the drain into which the effluent was discharged is the gravels of the Waitaki Plains and their underlying aquifer situated about three and a half kilometres away. Analysis of water in the drain showed that it was highly polluted by dairy effluent. The drain itself has no ecological values but the water sampled in it was unsafe for human contact and stock consumption. It is not possible to identify the extent to which the effluent might have entered the Waitaki aquifer but that could have potentially happened.

[7] Mr Logan, for the Council, point to three failures on the part of the Defendants – setting up and operating the effluent irrigator on saturated soils, failing to monitor the irrigator and observe effluent run-off (it is accepted that those were errors of the Company’s employee) and failing to adequately instruct staff on how to safely use the effluent irrigator when the K-line irrigation system was also working.

[4] The Judge observed that proper effluent disposal on dairy farms was a serious issue. He went on to say that deterrence continued to remain an issue in dairy farm offending which he noted were offences appearing before the Court on regular occurrences. He recorded that the least serious category of this type of offending

_{generally attracted a penalty starting point of $30,000. However, he determined that}

³ Otago Regional Council v Alpine Dairies Limited and John Douglas Burrows [2015] NZDC

1234.

an uplift of that starting point was necessary here due to the ongoing offending. He therefore took a figure of $35,000.

[5] The Judge approached the sentencing task on a “global basis”, taking into account that the two separate offences arose out of the same incident and that the two defendants were effectively one financial entity. The Judge therefore apportioned a

$25,000 fine to the company and a $10,000 fine to Mr Burrows. A reduction of

5 per cent was then allowed for the appellant’s past good record in environmental matters, the co-operation shown once the offending was detected, and the appellant’s intention to undertake a programme of riparian planting. And, a 25 per cent discount was made for the early guilty plea.

[6] When it came to a possible discharge without conviction under s 106 of the Sentencing Act 2002, the Judge again noted that the gravity of the offending in this case was in the least serious band of the identified offending but at the upper end of that band. It could not be considered as minor or trivial.

[7] Although it was accepted that it was not Mr Burrows himself who was personally operating the spray effluent system on the date of the offending, it was done so with a high degree of carelessness on the part of the employee concerned, apparently as a result of inadequate instruction. The Judge also took into account the difficulty that a conviction might mean for Mr Burrows in obtaining future employment in the industry. Ultimately Judge Dwyer concluded that the entry of a conviction against Mr Burrows personally was not out of proportion to the seriousness of the offending.

Jurisdiction

[8] The appellant Mr Burrows may appeal the imposed sentence as of right.⁴ As the first appeal Court,⁵ this Court must only allow the appeal if satisfied that:⁶

⁴ _{Criminal Procedure Act 2011, s 244.}

⁵ _{Section 247.}

⁶ Section 250.

(a) For any reason, there is an error in the sentence imposed on conviction; and

(b) A different sentence should be imposed.

[9] In the recent judgement of Tutakangahau v R, the Court of Appeal confirmed that the Criminal Procedure Act 2011 sentence appeal regime was not intended to signify a departure from the position under the previous Crimes Act 1961, s 385(3), and the Summary Proceedings Act 1957, s 121(3), regimes.⁷

[10] Mr Burrows appeals the decision on grounds that Judge Dwyer was wrong in law in his application of the balancing act between the gravity of offending, the direct and indirect consequences of conviction and whether the consequences would be out of all proportion to the gravity of the offending. Furthermore, Judge Dwyer was wrong in not exercising his discretion to discharge Mr Burrows without conviction pursuant to s 106 of the Sentencing Act 2002.

Submissions

Submissions for the appellant

[11] As to the grounds of appeal outlined at [10] above, Mr Tohill, counsel for Mr Burrows, submitted that Judge Dwyer was wrong in finding that the offending was at the upper end of the least serious band of offending, categorising it as the lowest level of offending possible. The gravity of the offending he said should be described as “de minimis” on the basis that:

(a) the appellant was absent from the farm at the time of the offending;

and

(b) proven environmental damage is minimal.

[12] Mr Tohill contended that the consequences of conviction here are out of proportion to this offending. The offending he maintained was “of such minor nature

⁷ Tutakangahau v R [2014] NZCA 297; [2014] 3 NZLR 482.

that a conviction with a potential to have severe negative effects on the Appellant’s employability in the Dairy Industry is out of all proportion to the seriousness of the offence.”

Submissions for the Respondent

[13] The respondent does not dispute the principles to be applied for discharge without conviction. However, the respondent does differ with the appellant on the following matters:

(a) The gravity of the offending – proper effluent disposal is an integral part of the business of dairy farming and Mr Burrows took overall responsibility for the effluent management system. He had set up the system but had only given verbal instruction of the rules. Although the contaminated drain was of limited ecological value, it made the water unsafe for human contact or stock consumption and there was an underlying aquifer that could have been contaminated. The degree of carelessness involved in the offending cannot be overstated.

(b) The consequences for the appellant – it is accepted that a conviction for dairy effluent offending can impact future employment prospects. However, this is consistent with sentencing purposes of holding a defendant to account, promoting a sense of responsibility in the offender, denouncing the conduct and deterring the defendant and others in the dairy industry from committing similar offences.

(c) Proportionality – any effects on the appellant’s employment prospects it is said are not out of all proportion to the gravity of his offending; and

(d) The exercise of discretion – the relevant sentencing purposes and principles would not be achieved if Mr Burrows were to be discharged without conviction.

Relevant Legislation

[14] On this issue, it is useful to set out here in full ss106 and 107 of the

Sentencing Act 2002:

106 Discharge without conviction

(1) If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.

(2) A discharge under this section is deemed to be an acquittal. (3) A court discharging an offender under this section may—

(a) make an order for payment of costs or the restitution of any property; or

(b) make any order for the payment of any sum that the court thinks fair and reasonable to compensate any person who, through, or by means of, the offence, has suffered—

(i) loss of, or damage to, property; or

(ii) emotional harm; or

(iii) loss or damage consequential on any emotional or physical harm or loss of, or damage to, property:

(c) make any order that the court is required to make on conviction.

(3A) Sections 32 to 38A apply, with any necessary modifications, to an order under subsection (3)(b) as they apply to a sentence of reparation.

(4) [Repealed]

(5) Despite subsection (3)(b), the court must not order the payment of compensation in respect of any consequential loss or damage described in subsection (3)(b)(iii) for which compensation has been, or is to be, paid under the Accident Compensation Act 2001.

107 Guidance for discharge without conviction

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

Discussion

Approach to an Appeal

[15] An appeal against the refusal to order a discharge without conviction is not treated as an appeal against a Judge’s discretion.⁸ This is because a judge’s discretion in discharge cases is so constrained by the legislation, that it is very rarely relied upon.

[16] Although the ability to discharge an offender without conviction is found in s

106 of the Sentencing Act 2002, the exercise of s 106 is guided by s 107 which provides a gateway through which a possible discharge without conviction must first pass.⁹ As noted in the leading Court of Appeal decision of Z v R¹⁰ and in R v Hughes¹¹ the court must:

(a) consider all of the aggravating and mitigating features relating to both the offending and the offender;

(b) identify the direct and indirect consequences of a conviction on the offender for that offending; and

(c) consider whether those consequences are out of all proportion to the gravity of the offence.

[17] This is the s 107 gateway. It is only if the court is satisfied that the consequences would be out of all proportion that the court may then go on to consider whether it should exercise its residual discretion to grant discharge. However, it is only in very rare cases that the discretion would not be exercised if the

_{court was satisfied that the above criteria had been met.}¹²

⁸ _{H v R [2012] NZCA 198.}

⁹ _{R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8] – [12].}

¹⁰ _{Z v R [2012] NZCA 599.}

¹¹ _{R v Hughes, above n 3, at [10]; Z v R [2012] NZCA 599, [2013] NZAR 142 at [27].}

¹² Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [13].

[18] In the case at hand, Judge Dwyer did not consider the consequences to be out of proportion and therefore there was no exercise of discretion:

[28] Having regard to all of those factors, I do not consider that the entry of a conviction against you personally, Mr Burrows, is out of all proportion to the seriousness of the offending.

This appeal will therefore be approached on the appellate principles where the decision of the District Court is evaluated afresh and a decision is made as to whether there is an error of law in not allowing the discharge.¹³ Whether the consequences are out of all proportion to the offence is a matter of fact requiring judicial assessment.

[19] The approach to be taken in relation to s 107 was summarised thus:¹⁴

... when it comes to a decision under s 107, the appellate court must come to its own view of the merits; the weight the appellate court gives to the original decision is a matter of judgment; and that deference to the assessment of the original decision-maker is not necessary, even where the assessment requires a value judgment. If the appellate court considers that the original decision is wrong, it must act on that opinion.

[20] It is therefore up to this Court to determine whether the s 107 criteria set out above were satisfied.

Gravity of the offending

[21] In Waikato Regional Council v GA & BG Chick Ltd, the Court identified three levels of effluent discharge offending depending on their seriousness. The parties agree, as did Judge Dwyer, that the offending in this case was level one, lowest level, offending. This was described in Chick as:

[24] This range of offending reflects unintentional one off incidents occurring as a result of a system failure. The range of penalty reflects the spectrum from the rarely used but wide discretion to discharge without conviction, to offending which encompasses some failure to adequately maintain the system, or failure to take timely restorative action. It also reflects little or no effect on the environment.

¹³ _{H v R, above n 5, at [30] – [36].}

¹⁴ Denden v Police [2014] NZHC 1814 at [28].

[22] Here the incident in question would seem to have been generally unintentional and a one off. The drain that was contaminated had little ecological value so there does not appear to be any significant effect on the environment. The system failure in this case could perhaps best be described as a lack of proper training of employees on the farm.

[23] However, this system failure itself should not be understated. Mr Burrows admits that he is “responsible for overseeing the whole of the farm operation.” Presumably, a large part of that is ensuring that effluent, a day to day issue for dairy farms, is disposed of appropriately. Knowing the adverse environmental impacts that improper disposal can cause, alongside the damage to the reputation of the industry, one would have thought that a full and proper training program on proper disposal where the importance of it is emphasised would be fundamental. Instead, the training provided in this case it seems was simply “verbal instructions” given to the shed manager “in relation to the effluent management system which included where to locate the effluent spreader to ensure there was no discharge.” The instructions also included that the “area must be dry”. The complexity of the system can best be summed up in a passage from Mr Burrows’ affidavit:

When K-line irrigation is not required the area where the travelling irrigator was set is dry and can be used as an application area for effluent. The 2 staff who gave instructions to set up the irrigator on 19 February 2014 were not with us last season when we were operating the K-line, however, they were given verbal training and a demonstration on how to run the effluent spreader correctly.

This instruction was given earlier in the season, prior to the need to irrigate with K- line.

[24] Mr Burrows has stated that since the incident, the systems that were previously in place have been reviewed and changed in order to ensure that all staff understand the rules and systems properly. He has also implemented in-depth written recording of all training. Although this must be commended, it is also inescapable that, had these relatively simple processes been in place prior to the incident, the likelihood of it occurring would have been significantly lessened.

[25] It also does not escape the Court’s attention that Mr Burrows did not specifically give the instruction to set up the travelling irrigator where it was and that, had Mr Burrows been present and viewed the situation at the time, it is unlikely the offending would have occurred. Nor has the Court overlooked the claim that, prior to the offending, Mr Burrows made significant improvements to the effluent system by completely replacing the pre-existing system to ensure that correct application of effluent was achieved. This, it is said, demonstrates a conscientiousness for environmental concerns that Mr Burrows was willing to address through investment in infrastructure.

[26] The remorse expressed by Mr Burrows also appears to be genuine. There is always the difficulty when evaluating remorse that some people will be remorseful more of the fact that they were apprehended, rather than the fact that they had committed the offence. However, in this case Mr Burrows appears to be genuinely saddened by the thought that his omission could have had adverse environmental impacts.

[27] Having taken all of these factors into account, the gravity of the offending certainly falls within level one of the Chick categorisation. It might be thought that it is difficult to say it falls at the higher end of that assessment. Equally, however, it seems that some easy steps could have been taken to avoid the incident but these were not taken, such that this means it does not fall at the lower end either. It is the type of offending that level one is aimed at. Bearing that in mind, it is now necessary to consider the direct and indirect consequences of a conviction here.

Direct and Indirect Consequences

[28] I will deal first with what I see as the direct consequences of conviction. There is obviously the fine that has been imposed on Mr Burrows. This seems to be a factor of little concern although it is noted for the sake of completeness.

[29] More importantly, a conviction may well have direct impacts on Mr Burrows’ current employment. Mr Diprose, Chairman of Directors of Kowhai Dairy Limited, has stated in his affidavit:

If Mr Burrows is convicted then the company of Kowhai Diary Limited would not want Alpine Dairies Limited as a Shareholder because it would affect their insurance premiums and also tarnish the other Shareholders and Directors with the inference that their property has been subject to a conviction by their sharemilker.

Mr Diprose continues in a further affidavit that, “[t]he sharemilking contract between Kowhai Diary Limited and Alpine Dairies Limited will be terminated as John Burrows is a principal employee and director of that company.” This it is said is a clear and direct impact that a conviction will have on Mr Burrows. But this contention in my view must be questioned. It has a significant difficulty. This is simply the fact that Alpine Dairies Limited, as the sharemilker party in the sharemilking agreement with Kowhai Dairy Limited, pleaded guilty to the same offence as Mr Burrows and has not appealed that conviction. That conviction therefore stands. The implications of Alpine’s involvement as a sharemilker in Kowhai Diary Limited, which it is claimed is likely therefore to “tarnish” the involvement of others and insurance premiums for the company (if at all), in any event remains and thus is entirely irrespective of the position of Mr Burrows here.

[30] In terms of indirect impacts, a major issue here it is said would be Mr Burrows’ ability to find future employment in the industry. As to this, Mr Diprose states in his affidavit:

I believe that Mr Burrows will have trouble in the future obtaining sharemilking positions in the dairy industry because of the charges brought against him. I believe that Mr Burrows would not be able to, or would be placed well down the list, in any venture where they would be employing staff in agricultural training programs.

[31] Whether future employers would be understanding of the circumstances of the conviction and able to overlook it, or put it into some reduced context, is unclear. It would at least seem, in terms of larger operations such as Kowhai Dairy Limited, that there will be factors which some might see as automatically disqualifying an applicant with a conviction of this nature from being considered. If this was to occur it would be a significant consequence for a 29 year old trying to make his way in the dairy industry who, for all but one incident, has a good environmental record.

[32] But there are, of course, consequences involved with any conviction. This is one of the purposes of sentencing. Judge Dwyer considered the sentencing purpose of deterrence to be of particular importance with this type of offending due to the regularity with which it arises before the courts. The task now is one of weighing up both the consequences and the gravity of the offending, and determining whether they are proportional. And, even if Mr Burrows’ present appeal was to succeed, the unappealed conviction of Alpine Dairies, a company with which he is associated, would in any event remain.

Proportionality Test

[33] This appeal has not been an easy one. The proportionality test I am faced with is not one that falls clearly on either side. That is, it is reasonably finely balanced.

[34] The offence that has been committed as I see it involves a situation of particular importance in New Zealand where increasing reliance both nationally and internationally is placed on our environmental image and also the economic contribution to the country of our dairy farming industry. It is important that the dairy industry does its best to maintain a clean image and for this to happen requires compliance from all members of the industry. Deterrence from offending is therefore important and omission of proper precautionary instructions should not serve as a valid excuse for a person who is ultimately in control and takes responsibility for day to day operations of a farm.

[35] Generally, care is required when effluent disposal is undertaken on a dairy farm during irrigation. This particular Waitaki Valley farm was a dairying operation that additionally posed certain specific challenges for effluent disposal. It was a farm established on dry, undulating and rolling country necessary to irrigate for dairying. Central pivot irrigation, as I understand it, was not possible. A K-line irrigation system was thus in use and there was surface run-off of irrigation from the saturated soils down-slope of the K-line system to a drain. The travelling irrigator disposing of effluent was then set up and operated on these saturated soils “down- stream” of the K-line pods, with the inevitable result that effluent flowed into the

drains. To operate this irrigation system and the effluent disposal system in tandem on this undulating Waitaki Valley property (where there were drains and run-offs that effluent could follow) with relatively new farming staff who it seems were not conversant with how to properly operate the two systems, required special care. That did not occur here.

[36] The fact however that Mr Burrows was not on the farm when these events occurred might be seen to an extent as mitigating. Further mitigating features might be seen to include the positive steps that he had previously taken to improve the effluent disposal systems on the farm as well as his genuine remorse that his systems could have caused environmental damage. There is also the fact that the offending falls only within level one of the Chick categorisations.

[37] All of this must be weighed against the consequences of a conviction here. The direct consequences are obvious. Mr Burrows is likely to be no longer a shareholder and sharemilker at Kowhai. And, indirectly, as I have noted it is suggested that there is potential that Mr Burrows will experience future difficulty in finding further employment as a sharemilker.

[38] In T v New Zealand Police, Potter J proposed the following assessment of the consequences of a conviction:

I approach the assessment of the nature and seriousness of direct and indirect consequences of a conviction not on the basis that they would inevitably or even probably occur, but rather that there is a real and appreciable risk that such consequences would occur.

[39] Here, there is some risk that this conviction might do damage to future employment prospects. If a company such as Kowhai Dairies Limited considers itself unable to retain Mr Burrows and/or his company interests as a sharemilker, it is likely that there would be no reason why a similar company would not take the same position.

[40] Generally I accept that a conviction for dairy effluent offending is capable of impacting upon future employment prospects in the dairy industry to some extent.

[41] An outcome such as this, however, in my view is consistent with the sentencing purposes of holding an offender to account, promoting a sense of responsibility in that offender, denouncing the conduct which constitutes the offence, and deterring the offender and importantly others in the dairying industry from committing the same or similar offences. In the Resource Management Act context, deterring others, as I see it, is a particularly important aspect.

[42] In the District Court I am satisfied the Judge carefully considered prejudice to

Mr Burrows’ future employment at paragraphs [21] – [25].

[43] I conclude that any effects on Mr Burrows’ employment prospects here are not out of all proportion to the gravity of his offending which must be seen as serious. As the District Court Judge quite properly said at paragraph [26]:

I acknowledge your previous good record but ultimately you were the person responsible for management of the dairy farm including the discharge of effluent. I have reservations about the adequacy of instruction given to employees in light of what occurred in this case which involved irrigating in a situation where a discharge must almost inevitably occur.

[44] Accordingly I find that the test set out in s 107 of the Sentencing Act which must be satisfied before a discharge without conviction can be considered has not been made out here. The direct and indirect consequences of Mr Burrows’ conviction here are not out of all proportion to the gravity of the offending to which he pleaded guilty. In my view the relevant sentencing purposes and principles would not be achieved in this case if Mr Burrows were to be discharged without conviction.

Conclusion

[45] For the reasons outlined above this appeal is dismissed.

...................................................

Gendall J

Solicitors:

AWS Legal, Alexandra

Ross Dowling Marquet Griffin, Dunedin