TRENT v CANTERBURY REGIONAL COUNCIL (CHRISTCHURCH) [2020] NZHC 767

TRENT v CANTERBURY REGIONAL COUNCIL (CHRISTCHURCH) [2020] NZHC 767 [20 April 2020]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2019-409-000194[2020] NZHC 767BETWEEN RUSSELL WILLIAM TRENTAppellantAND CANTERBURY REGIONAL COUNCIL(CHRISTCHURCH)RespondentHearing: 19 March 2020Appearances: T J MacKenzie for the AppellantT J McGuigan and I van Woerkom for the RespondentJudgment: 20 April 2020JUDGMENT OF NATION J[1] On 3 April 2018, the appellant (Mr Trent) was required by his employer to usea purging tank outside premises it leased in Belfast to clear ammonia refrigerant fromrefrigeration components. In doing that, an amount of ammonia-contaminated wateror ammonia overflowed from the purging tank, ending up in the Kaputone Creek. Thedischarge caused significant damage, including a near total fish-kill over fivekilometres of waterway. Some 1,779 eels were killed. The spill also had "significantcultural impact" on local Iwi given the cultural and ecological importance of thewaterway and eels.[2] Mr Trent and his employer, Emergent Cold Ltd (Emergent), both pleadedguilty to a charge of breaching s 15(1)(b) Resource Management Act 1991 (RMA) bydischarging a contaminant, being either ammonia or ammonia contaminated water,onto land in circumstances where it might (and did) enter water. Emergent was fined$145,350. Mr Trent was fined $97,000. Mr Trent has appealed that fine.Facts[3] In 2016, Emergent leased two large cool stores and associated refrigerationplant and buildings at Belfast. Emergent purchased the equipment in the refrigeratorengine room from the previous tenant, Silver Fern Farms Ltd. The site was previouslyone of the oldest and largest meat works situated in Christchurch until it closed down.The lease was an interim arrangement pending the site's demolition. Emergent usedthe cool stores to store cold and frozen products until March 2018.[4] Mr Trent was using the purging tank to collect air and ammonia gas that hadbeen trapped in vintage compressors which were to be donated to a machinerymuseum. These had to be purged of ammonia for safe removal.[5] This involved ammonia gas being pumped into the water in the purging tank.The water became saturated with ammonia. As this happened, ammonia gas wouldbubble up and discharge to air from the purging tank. Water that had become saturatedwith ammonia had to be replaced at times. Any ammonia contaminated water had tobe contained and safely disposed of as hazardous waste.[6] The discharge involved amounts of ammonia-contaminated water and/orammonia overflowing from the purging tank as a result of Mr Trent refreshing thewater in the purging tank as it became saturated with ammonia during the purgingprocess. This also resulted in strong ammonia odours being discharged from the site,which had been detectable by members of the public at least 200 m away.[7] Mr Trent carried out the purging process over a period of five hours on 3 April2018. It was during that process the overflow occurred.[8] The purging tank was situated close to a gutter which directed water to theChristchurch City Council stormwater system. The stormwater system, in turn, flowedinto Kaputone Creek which is a tributary of the Styx River. The overflow took thatpath to the Kaputone Creek.[9] Mr Trent explained there was a leak in the purging line going to the purgingtank which he had fixed. The first time he had used the purging tank in this way wason 3 April 2018.[10] There was no overflow mechanism in the purging tank. There was nosecondary containment system around the base of the purging tank that could havebeen used to capture any overflow.[11] Emergent explained that the contractor it had engaged earlier to recoverammonia refrigerant from the system had preferred to use the purging system in theplant room because it thought the outside purging tank should have been bunded.[12] Included in the fish kill were long-fin and short-fin eels, represented by a widerange of size and age classes, from very large individuals that would have been inexcess of 50 years old to juveniles that arrived in the river that season as one to twoyear old fish. Long-finned eels are currently classified by the Department ofConservation as an "at risk" species and in decline. A total of 1,779 dead fish wererecovered, most being eels.[13] As to the environment and the impact of the discharge on it, the adverse effectswere assessed as significant in scale by the Council. There were no long-term adverseeffects to vegetation or food sources and it was considered the fish stocks wouldreplenish over time.[14] The Judge referred to a cultural impact statement that had been obtained fromTe Ngāi Tūāhuriri Iwi which advised the creek is a long treasured taonga of the Iwi.The creek was part of an extensive network of wetlands and streams which was animportant food gathering place for Māori, particularly eels which were an importantfood source for them. The Iwi was involved in a project to raise the degradedecological value of these waters.[15] The Judge quoted from the cultural impact report in which there was referenceto the distress felt by the Iwi at seeing so many dead fish and the way their efforts torestore the fishery and habitat had been wasted.[16] It seemed from recent reports that some of the affected fish species may havesubstantially recovered some 18 months later, especially in relation to eels. Fishnumbers remained low in the Kaputone Creek one year after the event. No issue wastaken with the Judge's conclusion that the incident had a highly significant adverseeffect on the ecosystem of Kaputone Creek, in fact a devastating effect in the shortterm.District Court decision[17] Mr Trent and Emergent were sentenced simultaneously.1 Judge Dwyer beganthe sentencing exercise with reference to several comparative cases:(a) In Taranaki Regional Council v Ravensdown Fertiliser Co-operative Ltd,a $100,000 starting point was taken for a company where a contractor hadrecklessly disposed of hydrolysed urea to a landfill not authorised toreceive it.2 The Judge considered the fault of Ravensdown wasconsiderably less than the defendants in this case as it was unaware as towhere the discharge was being taken. He also noted that decision waseight years old and there had been "considerable upward movement insentencing levels since then".3(b) In Nelson City Council v KB Contracting and Quarries Ltd, a $120,000starting point was adopted for a developer who discharged sediment,destroying the habitat of a population of banded kōkopu.4 The Judgefound the present case more serious due to the toxicity of the ammonia andthe more devastating consequences.(c) In Canterbury Regional Council v Canterbury Greenwaste ProcessorsLtd, a $150,000 starting point was adopted for a company dumpingdemolition waste containing dangerous or toxic chemicals.51 Canterbury Regional Council v Emergent Cold Ltd [2019] NZDC 23930.2 Taranaki Regional Council v Ravensdown Fertiliser Co-operative Ltd DC New Plymouth CRI-2011-043-2426, 15 December 2011.3 Canterbury Regional Council v Emergent Cold Ltd, above n 1, at [13].4 Nelson City Council v KB Contracting and Quarries Ltd [2018] NZDC 11153.5 Canterbury Regional Council v Canterbury Greenwaste Processors Ltd DC Christchurch CRI-2012-009-9820, 24 April 2013.(d) In Auckland Council v Jenners Worldwide Freight Ltd, a $180,000 startingpoint was adopted for accidental discharge of methyl violet dye killing arange of fish species.6[18] In adopting a starting point, the Judge considered the following factors to beparticularly relevant:(a) the effect of the discharge on aquatic life in the waterway;(b) the extent of that effect, being a distance of five kilometres;(c) the fact that species recovery was likely to take a long time;(d) the cultural significance of the waterways and the affront to tangatawhenua;(e) the unsatisfactory manner in which the defendants dealt with the highlytoxic material; and(f) the failure to have any bunding to contain spills from the purge tank, whichwould obviously enter the nearby storm water drain.[19] The Judge recorded Emergent had acknowledged in its counsel's submissionsand in a statement from the CEO that it was responsible to ensure that environmentalprotection measures were in place, it accepted full responsibility for the offending andit had not provided Mr Trent with adequate instructions or equipment to undertake thejob he was given.[20] The Judge adopted a starting point for Emergent of $180,000, with particularreference to Jenners.7 He determined the appropriate starting point for Mr Trent was$120,000 and noted this was 66 per cent of the starting point for Emergent, inrecognition that he was not adequately instructed or supervised. The Judge said this6 Auckland Council v Jenners Worldwide Freight Ltd DC Auckland CRI-2014-092-257, 4 February2015.7 Auckland Council v Jenners Worldwide Freight Ltd, above n 6.was a significant amount but found it necessary given the "real failings" on the part ofMr Trent to closely manage the operation.8[21] Both defendants were awarded a five per cent reduction for previous goodcharacter and a further 15 per cent for guilty pleas. That resulted in the final fines of$145,350 for Emergent and $97,000 for Mr Trent.Principles on appeal[22] Appeals against sentence are allowed as of right by s 244 Criminal ProcedureAct 2011, and must be determined in accordance with s 250 of that Act. An appealagainst sentence may only be allowed by this Court if it is satisfied there has been anerror in the imposition of the sentence and that a different sentence should beimposed.9 As the Court of Appeal mentioned in Tutakangahau v R, quoting the lowercourt's decision, a "court will not intervene where the sentence is within the range thatcan properly be justified by accepted sentencing principles".10 It is only appropriatefor this Court to intervene and substitute its own views if the sentence being appealedis "manifestly excessive" and not justified by the relevant sentencing principles.11Submissions and discussionGround one – failure to take into account the maximum penalty[23] The maximum penalty for Emergent, as a company, was a fine of $600,000,while the maximum penalty for Mr Trent was a fine of $300,000 or two years'imprisonment.12 Mr Mackenzie, for Mr Trent, submitted the Judge failed to take thedifferent maximum fines into account. He referred to the Judge's statement:13I have determined that the appropriate starting point in your case, Mr Trent, isthe sum of $120,000. That, of course, is 66% of the starting point I haveadopted for Emergent and reflects its acceptance of ultimate responsibilityrather than any principle that companies should ipso facto be fined more thanindividuals.8 Canterbury Regional Council v Emergent Cold Ltd, above n 1, at [18].9 Criminal Procedure Act 2011, ss 250(2) and 250(3).10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].11 Ripia v R [2011] NZCA 101 at [15].12 Resource Management Act 1991, s 339(1).13 Canterbury Regional Council v Emergent Cold Ltd, above n 1, at [18].[24] With his written submissions, Mr Mackenzie seemed to be suggesting, wherea company and an individual were charged with the same offending, the starting pointshould equate, in a proportionate way, to the difference in the maximum penalties. Hesuggested this was necessary to give effect to s 8(b) Sentencing Act 2002 whichrequires that a sentencing court "must take into account the seriousness of the type ofoffence in comparison with other types of offences, as indicated by the maximumpenalties prescribed for the offences".[25] For the Canterbury Regional Council, Mr McGuigan submitted that thedifference in maximum fines did not mean the difference always had to be reflected inthe way an individual was sentenced. He submitted the higher penalty available forcorporate defendants was designed to provide flexibility rather than as a mandate orstipulation that companies must always be subject to twice the penalty individuals are.He referred to the judgment of Mander J in the High Court in Waslander v SouthlandRegional Council.14[26] Mr McGuigan submitted the starting point of $120,000 for Mr Trent, viewedagainst the maximum fine of $300,000, did not infringe upon the principle set out in s8(b) Sentencing Act and was an appropriate reflection of Mr Trent's culpability.Counsel contended the starting point was within range.[27] Mr Mackenzie submitted that "so far as Waslander suggests that maximumpenalties are not relevant at all between two defendants, it may not be good law". Hereferred to decisions of the Environment Court where judges had taken account of thediffering maximum penalties, in particular Marlborough District Council v Sowman.15[28] I do not consider that, in Waslander, the High Court was suggesting thatmaximum penalties would never be relevant as between two defendants. There, onlyan individual who owned and operated a dairy farm was being sentenced on threecharges of unlawfully discharging contaminants into the environment.14 Waslander v Southland Regional Council [2017] NZHC 2699.15 Marlborough District Council v Sowman [2019] NZDC 25036.[29] In Waslander, Mander J considered the appropriateness of the fines with regardto the environmental harm suffered, the level of Mr Waslander's culpability and thecircumstances relating to Mr Waslander personally. He reached a conclusion as to MrWaslander's responsibility for the offending and the approach to totality in setting theappropriate effective sentence. After reviewing the appropriateness of the startingpoints adopted for the offending on that basis, Mander J said:16Similarly, comparison with the greater maximum penalty available forcorporate defendants does not assist Mr Waslander's argument. Corporatedefendants will usually be associated with larger commercial enterprises,although often it will simply be a matter of circumstance as to how theindividual dairy farmer has organised or structured his dairy operation. Thehigher penalty for corporate defendants reflects both the need for the Court tobe able to impose meaningful penalties that will carry the necessary punitiveand deterrent effect on large commercial organisations and the absence of anyalternative non-monetary sentences such as imprisonment which are availablewhen natural persons appear before the Court for this type of offending. I donot consider the level of fine imposed in the present case breached any policywhich sits behind the higher penalty levels for corporate defendants in termsof a percentage of the maximum penalty, as was contended for by [counsel forMr Waslander].[30] His Honour did not say that the maximum levels of fine would always beirrelevant.[31] In his submissions, Mr McGuigan accepted the applicable maximum penaltywill always be a relevant factor, but he submitted differences in culpability and otheraggravating features will also play a role and will affect relativity between the startingpoints adopted.[32] Ultimately, in his oral submissions, Mr Mackenzie said, here, the Judge hadbeen in error in not considering the difference in maximum fines at all when arrivingat an appropriate starting point for Mr Trent. Mr Mackenzie submitted in his writtensubmissions that the distinction in maximum fines was particularly important where"two defendants are for sentence on the same facts but are at the same time facingdifferent penalties". He submitted this was such a case, so the different maxima hadto be recognised.16 Waslander v Southland Regional Council, above n 14, at [53].[33] In this instance, Judge Dwyer did not consider it appropriate to adjust thepenalty in a way that reflected the difference in fines to which both defendants werepotentially exposed. I do not accept however that he had no regard to the differencein potential fines.[34] Mr Mackenzie told me that, on sentencing, he had submitted there should be adifference in the starting point sentence which reflected the difference in maximummonetary penalties. The submission was consistent with the argument Mr Mackenziemade in his written submissions to this Court. The Judge must have been mindful ofthat submission when, having arrived at a starting point fine of $120,000 for Mr Trent,he said:17That, of course, is 66% of the starting point I have adopted for Emergent andreflects its acceptance of ultimate responsibility rather than any principle thatcompanies should ipso facto be fined more than individuals.In saying that, the Judge was rejecting the submission made for Mr Trent that thestarting point should reflect the difference in potential maximum fines.[35] Contrary to the submissions for Mr Trent, this was not a case where thedefendants were for sentence on the same facts. The Judge was careful to articulatethat he had arrived at different starting points because their involvement in theoffending was different. He had noted Emergent had accepted full responsibility forthe offending and had not provided Mr Trent with adequate instructions or equipmentto undertake the job he was given. The Judge said the higher starting point he hadadopted for Emergent reflected its acceptance of ultimate responsibility.[36] The Judge arrived at a starting point for Mr Trent after observing that:18 there were real failings on [his] part as the man on the spot who wassupervising the purging operation. The need for close management of thatoperation should have been apparent in light of the proximity of the Councildrain if nothing else. The purging operation was undertaken over a period ofabout five hours during which time there had been a strong ammonia smelland it was apparent that an overflow was occurring.17 Canterbury Regional Council v Emergent Cold Ltd, above n 1, at [18].18 At [18].[37] The Judge accepted Mr Trent had not turned his mind to precisely where theoverflow might ultimately end up once it had got into the Council stormwater system.He accepted Mr Trent did not really turn his mind to the very toxic nature of thedischarge. He further accepted that Emergent did not adequately instruct or superviseMr Trent in that regard. The Judge said this was why he had chosen a lower startingpoint for Mr Trent than he did for Emergent.[38] The Judge noted the starting point was 66 per cent of the starting point adoptedfor Emergent but made it clear he did not arrive at the starting point on simply aproportionate basis. With both defendants, he had carefully considered theenvironmental and cultural impact of the offending. He then had regard to theculpability of each defendant. There is no criticism of the approach he took in thisregard.[39] Counsel's argument on this ground was based on a flawed premise that themaximum penalty for the company was $600,000 and for Mr Trent was $300,000. Themaximum penalty for Mr Trent was imprisonment for a term not exceeding two yearsor a fine not exceeding $300,000.[40] There have been a number of cases where judges in the District Court havesentenced both an individual and a company for RMA discharge offences arising outof the same events or circumstances. In some cases, judges noted the difference inmaximum monetary penalties and observed that, because of this, caution had to beexercised in using a starting point fine adopted in another case for a company inarriving at a starting point for an individual in the subject case.19[41] In some instances, judges noted the higher penalties to which corporates mightbe liable and specifically referred to that in adopting a higher starting point fine for acorporate offender than with an associated individual.2019 For example, Marlborough District Council v Sowman, above n 15, at [80].20 Southland Regional Council v Egginton [2015] NZDC 14393.[42] In Southland Regional Council v Taha Asia Pacific Ltd, when sentencing theemploying company after having already sentenced an individual for the sameoffending, the Judge noted the difference in higher potential fines but expressly saidhe was not adopting a higher penalty for the company on a ratio basis.21[43] In some cases, judges noted the difference in maximum monetary penalties andarrived at different starting point fines but indicated the different starting points arrivedat was not to recognise the difference in maximum monetary penalties.22[44] In some instances, there has been express reference to the difference inmaximum monetary penalties as a factor that was of influence in arriving at differentstarting points for the company and the individual.23[45] In sentencing an offender, s 8 Sentencing Act requires the Court to take intoaccount the principles referred to in s 8(a)-(j):8 Principles of sentencing or otherwise dealing with offendersIn sentencing or otherwise dealing with an offender the court—(a) must take into account the gravity of the offending in the particularcase, including the degree of culpability of the offender; and(b) must take into account the seriousness of the type of offence incomparison with other types of offences, as indicated by themaximum penalties prescribed for the offences; and(c) must impose the maximum penalty prescribed for the offence if theoffending is within the most serious of cases for which that penalty isprescribed, unless circumstances relating to the offender make thatinappropriate; and(d) must impose a penalty near to the maximum prescribed for the offenceif the offending is near to the most serious of cases for which thatpenalty is prescribed, unless circumstances relating to the offendermake that inappropriate; and(e) must take into account the general desirability of consistency withappropriate sentencing levels and other means of dealing withoffenders in respect of similar offenders committing similar offencesin similar circumstances; and21 Southland Regional Council v Taha Asia Pacific Ltd [2015] NZDC 18010 at [17].22 For example, Southland Regional Council v Kidd [2019] NZDC 14942 at [15].23 For example, Taranaki Regional Council v Ravensdown Fertiliser Co-operative Ltd, above n 2.(f) must take into account any information provided to the courtconcerning the effect of the offending on the victim; and(g) must impose the least restrictive outcome that is appropriate in thecircumstances, in accordance with the hierarchy of sentences andorders set out in section 10A; and(h) must take into account any particular circumstances of the offenderthat mean that a sentence or other means of dealing with the offenderthat would otherwise be appropriate would, in the particular instance,be disproportionately severe; and(i) must take into account the offender's personal, family, whanau,community, and cultural background in imposing a sentence or othermeans of dealing with the offender with a partly or whollyrehabilitative purpose; and(j) must take into account any outcomes of restorative justice processesthat have occurred, or that the court is satisfied are likely to occur, inrelation to the particular case (including, without limitation, anythingreferred to in section 10).[46] No one of the 10 matters referred to in (a)-(j) is necessarily more importantthan another. The matters include in 8(a), the gravity of the offending in the particularcase, including the degree of culpability of the offender and, in (b), the seriousness ofthe type of offence in comparison with other types of offences, as indicated by themaximum penalties prescribed for the offences.[47] Whenever a monetary penalty is imposed, the court must have regard to theparticular financial circumstances of the offender in a way that could lead to the finebeing increased or decreased.24 It is also appropriate given the way s 339 RMApermits a higher fine to be imposed on a corporate offender than an individual.25[48] Where penalties are being imposed in regard to the culpability of multipleoffenders', sentence is to be assessed by reference to the role played by each individualoffender:26 even where a number of persons acting together commit a criminal offence,the Court is required to assess the culpability of each offender separately andto impose on each a penalty that reflects the gravity of that offender'scriminality.24 Sentencing Act 2002, s 40, specifically refers to that consideration.25 The starting point arrived at by the Judge for the four instances of offending was $120,000. Thedefendant was not able to pay any fine. Neither imprisonment nor home detention was appropriatebecause Mr Egginton had to leave New Zealand. He was sentenced to 100 hours' communitywork.26 Calford Holdings Ltd v Waikato Regional Council [2009] 15 ELRNZ 212 (HC) at [32].[49] A fine that is appropriate for an individual defendant is not to be reducedsimply because other offenders were involved or because a corporate entity was alsoinvolved.[50] When sentencing both a corporate offender and an individual for the sameoffence arising out of the same events, there is thus no particular reason why thestarting point fine should inevitably be less for an individual than for a corporateoffender. It could be more for the individual. The appropriate starting point willdepend on the Judge's assessment of the gravity of the offending in the particular case,the degree of culpability of the offender and all relevant matters referred to in s 8Sentencing Act, with particular regard to the RMA context of the offending.[51] The seriousness of relevant RMA discharge offences is indicated by themaximum fine for a corporate offender of $600,000 and the maximum fine of$300,000 or imprisonment for an individual. For the reasons articulated by Mander Jin Waslander, the higher maximum monetary penalty for which a corporate offendermay be liable is no indication that offending by a company will always be more seriousthan offending by an individual.27[52] Judges do have to consider the general desirability of consistency withappropriate sentencing levels, as referred to in s 8(e) Sentencing Act. For that reason,judges will have to consider carefully the basis on which a starting point fine wasarrived at in a particular case which it is suggested might be relevant to the case theyare dealing with. There is however no reason why the starting point fine adopted fora corporate offender, particularly where it is significantly less than $300,000, will notbe of assistance in arriving at a starting point fine for an individual offender.[53] For the reasons articulated by Mander J in Waslander, I agree that thedifference in the maximum monetary penalties does not require a court to necessarilyarrive at a monetary starting point sentence which reflects the difference in maximummonetary penalties to which an individual and a company may be exposed.28 Thedifference might be relevant in a particular case but that will depend on all the27 Waslander v Southland Regional Council, above n 14.28 At [53].circumstances of the offending and the circumstances of both the corporate andindividual defendants. The difference in maximum monetary penalties in no waysuggests that an offence, such as occurred here, will be less serious when it iscommitted by an individual than when it is committed by a company.[54] For reasons Judge Dwyer articulated, he considered Mr Trent's offending wasless culpable than that of Emergent. It was on that basis he arrived at a starting pointmonetary penalty of $120,000 for Mr Trent, in contrast to the $180,000 arrived at forEmergent. There was no error in the way he did this.[55] I have not been persuaded that the Judge was in error in failing to take intoaccount the difference in maximum potential fines for corporate and individualoffenders when sentencing Mr Trent.Ground two – inconsistency with other sentence levels[56] Counsel suggested there was no other case where the level of fine imposed wasas high as that imposed on Mr Trent. He said there were only a handful of sentencingexamples of individual offenders being sentenced in the area of toxic spills as opposedto effluent discharges. The starting point and end sentence were "remarkably higher"than other cases without good reason. Mr Mackenzie referred to three cases.[57] In Taranaki Regional Council v Ravensdown Fertiliser Co-operative Ltd,Ravensdown was responsible for discharging approximately 5,500 L of hydrolysedurea into an important water body.29 This led to the death of 4,000 to 5,000 fish. Thedischarge was described as having a "devastating" effect on a 3.6 km length of waterbody and a lethal kill area of 1.2 km.30 Also prosecuted was Mr Blackstock, thecontractor responsible for the collection and disposal of the effluent. A starting pointfine of $100,000 was adopted for Ravensdown and $50,000 was taken for MrBlackstock.29 Taranaki Regional Council v Ravensdown Fertiliser Co-operative Ltd, above n 2.30 At [7].[58] Ravensdown had arranged for disposal of hydrolysed urea knowing of itstoxicity. It arranged for Mr Blackstock's business to collect hydrolysed urea. It hadnot made sure the hydrolysed urea was going to an appropriate disposal site. MrBlackstock's business took the urea to a waste disposal site operated by anothercompany which was not permitted to take hydrolysed urea at that site. Judge Dwyerheld that Ravensdown was most responsible for the offending because of the businessit was in. The Judge considered the dump site company and Mr Blackstock were bothcareless and noted "the outcome of that carelessness was serious, probably out of allproportion to the carelessness".31 The Judge noted and did not reject a submission thatMr Blackstock had been asked to urgently remove waste from the premises. Anemployee undertook the work. Neither Mr Blackstock nor the employee had any ideaabout the toxic nature of the waste in question.[59] In a separate proceeding on the same day, Mr Blackstock was sentenced fordumping waste from the Ravensdown plant into a different landfill.32 Evidence as tothat discharge had been obtained during the investigation of the other incident justreferred to. A starting point of $20,000 was adopted for Mr Blackstock in thatproceeding. The Judge characterised Mr Blackstock's offending in that instance ascareless. He said Mr Blackstock ought to have known the nature and potential toxicityof waste materials his business was dealing with. He commented that the mostsignificant feature in determining a penalty starting point in that case was the lack ofany proven environmental effect.[60] Judge Dwyer sentenced the defendants in both cases. Mr Blackstock was theprincipal of the contracting business rather than an employee. His business was withwaste disposal. Mr Mackenzie contrasted Mr Blackstock's business in this respect tothat of Mr Trent's employer which was not in the business of ammonia removal, andsuggested its business "was not a profit-making commercial exercise". He suggestedMr Blackstock was sentenced for similar offending but where there had been noproven environmental effect.31 Taranaki Regional Council v Ravensdown Fertiliser Co-operative Ltd, above n 2, at [29].32 Taranaki Regional Council v AJ Cowley Ltd DC New Plymouth CRI-2011-043-2428, 15December 2011.[61] When sentencing Emergent and Mr Trent, Judge Dwyer said of theRavensdown decision:33That decision is now some eight years old and I think it might be observedthat there has been some considerable upward movement in sentencing levelssince then. I see the fault of Ravensdown in that case as being considerablyless than the Defendants in this case as it was unaware as to just where thedischarge was being taken by a contractor, although it should have checkedthat out.[62] For the Council, Mr McGuigan highlighted the difference as to the defendants'knowledge of the toxic nature of what was being disposed of between the two cases.Mr McGuigan submitted, and I accept, Mr Trent's offending could not be consideredless serious on the basis his employer was not involved in the business of clearingammonia from refrigeration equipment. Mr McGuigan said Emergent was anationwide company, operating refrigeration warehouses, as it had been at Belfast. MrTrent ought to have been aware of the highly toxic nature of ammonia. He had beencarrying out a purging exercise for five hours where he should have known that anyoverflow of ammonia-saturated water would enter a nearby drain.[63] Mr Mackenzie also referred to the starting point of $22,000 adopted for anindividual, Mr Sowman, in Marlborough District Council v Sowman.34 Mr Sowmanwas sentenced on two discharge offences concerning the discharge of grape marc (awaste by-product of winemaking) and leachate entering land and groundwater. Localresidents' water bores could not be used for up to 12 months.[64] Mr Mackenzie acknowledged that Mr Trent's was a completely different case.[65] It was significant in the offending of Mr Sowman that, for the period when therelevant discharge had occurred, it was from a pad that had been constructed on MrSowman's instructions to proper compliant engineering standards and the padappeared to be operating soundly. Mr Sowman had taken the initiative to have the padconstructed for the right intentions, a worthy environmental initiative. There washowever a later period when, as a result of information that had come to him from theCouncil and local residents, his inaction in dealing with the situation was reckless.33 Canterbury Regional Council v Emergent Cold Ltd, above n 1, at [13].34 Marlborough District Council v Sowman, above n 15.The Judge had also noted that, until the Council obtained an analysis from a scientist,it was not known how the leachate had acted as an agent on metals naturally in the soilsuch that they were free to become entrained in the groundwater so as to cause thecontamination which occurred.[66] The contamination of groundwater affected six residential households, causingdiscoloration of water that stained clothing, was foul smelling and foul tasting but hadnot caused health risks. It was considered to have had a moderately serious effect onthe environment but was significantly less damaging than the harm that was done withMr Trent's offending. Mr Trent's offending was more serious because of the way hehad continued to use the purging tank when overflows of ammonia were going intothe nearby Council drain.[67] Mr Mackenzie also referred to the starting point of $80,000 adopted in thesentencing of Egginton in 2015.35[68] The defendant had been a manager for a company that produced refinedaluminium dross. The company unlawfully dumped the dross in a pit, which becamethe subject of prosecution and enforcement orders. A condition of the enforcementorder required the company to remove and properly dispose of the dross. Thecompany advised the Council of three approved sites at which the dross would bedeposited. The Council said Mr Egginton arranged for some of the dross to beunlawfully discharged at another farm property. This resulted in five charges spreadacross different periods of time.[69] Mr Mackenzie said the immediate harm of the offending in that case was lessthan in the present case but described it as particularly cynical, deceptive andintentional offending, flying in the face of the previous prosecution and enforcementorders with full knowledge.[70] Mr McGuigan submitted that, in Egginton, the environmental effects of thedischarge were significantly less than in this case because the contaminants did notenter the Mataura River or downstream bores. A discharge at one of the sites caused35 Southland Regional Council v Egginton, above n 20.physical discomfort to some people but no ongoing physical harm. He also submittedthe actual circumstances of the offending were not such as to increase Mr Egginton'sculpability in the way Mr Mackenzie had suggested.[71] In Egginton, the Court was concerned first with the deposit of refinedaluminium dross into an excavated gravel pit at Edendale between June and July 2014.Refined dross is less toxic than unrefined dross but is nevertheless a skin and eyeirritant and a long-lasting aquatic ecotoxicant. In July 2014, the Council obtainedinterim and final enforcement orders from the Environment Court which led to thedisposal of the dross at the regional landfill site. At the same time, the Council issuedan enforcement order requiring Mr Egginton's employing company, Taha, to providethe Council with a list of all sites in the region where refined aluminium dross hadbeen discharged or stored. The Council was then told of three industrial sites and adisused papermill at Mataura where that had happened. When specifically asked, Tahadenied any knowledge of the use of the material on farm properties in the Bluff orAwarua areas.[72] In March 2015, the Council discovered that aluminium dross had been used onfarm tracks on the Bluff highway and one at Edendale. The offending alleged at theBluff site occurred in 2012 and at the Edendale site in 2014.[73] As Mr McGuigan pointed out, the discharges at the Bluff and Edendale siteshad not occurred after the Council had taken enforcement action. It was thus notcynical and deliberate offending in the way Mr Mackenzie had submitted.[74] As to the Bluff offences, Judge Dwyer noted it was submitted Mr Egginton hadbeen unaware that use of the product on farm tracks was unsafe. The Judge said, asthe manager of a company dealing with a material known to be hazardous to humanhealth, Mr Egginton had an obligation to make enquiry and to know the circumstancesand limitations as to its safe handling and use. He said the potentially hazardous natureof aluminium dross must have been apparent to Mr Egginton from his involvement inthe business since 2011. The Judge noted that the proven ongoing adverse effects ofthe discharges at both the Bluff and Edendale sites appeared limited at the time ofsentencing. Contamination had not entered the Mataura River near the Edendale siteor downstream to privately owned water supply bores. It was likely there wereelevated concentrations of aluminium fluoride and nitrogen in groundwater near thefarm tracks on the Bluff site but there appeared to be no risk that contaminatedgroundwater would reach Foveaux Strait in sufficient quantity to pose any risk to thatenvironment. A number of people had been affected by gaseous discharges from thedross at the Edendale site. The Judge sentenced on the basis there were no ongoingphysical consequences to people in that way.[75] The Judge adopted an appropriate starting point, as a financial penalty for thethree Edendale offences, of $80,000. He adopted a starting point for the Bluffoffending of $40,000.[76] I do not accept Mr Egginton's conduct was particularly culpable in the waysMr Mackenzie suggested. It was nevertheless serious but did not do the same damageto the environment as had resulted from Mr Trent's negligence. There was a logicalexplanation for the lower starting point fines adopted when Mr Egginton wassentenced.[77] I have also considered the cases Judge Dwyer referred to in sentencing MrTrent.[78] In Canterbury Greenwaste Processors Ltd, two companies and Mr Kepplewere all involved in discharging contaminants to land.36 The offending occurredthrough the ongoing depositing of earthquake demolition waste to a farm where it wasused to build farm tracks. The waste had not been sorted and was not clean rubble socontained metals and other materials which had the potential to contaminate a streamadjacent to the farm track. Mr Kepple was the principal of Canterbury GreenwasteProcessors Ltd (Greenwaste), who was contracted to process the demolition waste andhad told the defendant land-owning company that Greenwaste could provide thatcompany with clean, screened rubble suitable for use on farm tracks. Althoughcontaminants had been detected in the stream, it was accepted that capping the trackwith limestone would effectively mitigate the adverse environmental effects. Thestream however had significant amenity and cultural values, especially to the Ngāi36 Canterbury Regional Council v Canterbury Greenwaste Processors Ltd, above n 5.Tahu Hapu who were thus seriously affected by the potential degradation of the stream.Greenwaste and Mr Kepple were in the business of disposing of demolition waste.Through depositing the material in farm track, they had avoided the substantial costsof having to dispose of a huge amount of waste at an approved landfill site. The Judgeaccepted they were remorseful for what had occurred and would be spending some$150,000 on the limestone capping. They were no longer involved in processing anddisposing of demolition material.[79] After careful consideration of a number of relevant cases cited to him bycounsel, the maximum fines for which the companies were liable, and for Mr Kepplethe option of a term of imprisonment, the Judge regarded Greenwaste as the moreculpable of the three defendants. He arrived at a fine for both Greenwaste and MrKepple of $150,000, apportioned on the basis of overall culpability on roughly a one-third/two-thirds basis. The information in the sentencing notes suggests thatGreenwaste, lifting the corporate veil, was likely to have been the alter ego for MrKepple. It was a company of modest financial resources. The Judge said thedefendants could meet "a very significant fine only by selling assets, or it would resultin the winding-up of the company".37[80] In KB Contracting, two companies involved in a substantial residentialdevelopment in Nelson had allowed sediment to be discharged from settlementtreatment ponds on various dates between 22 March 2017 and 27 March 2017.38 Thedischarge had been of sediment-laden runoff into a stream and from there into theWaimea Estuary. The stream was an important habitat for banded kokopu, lownumbers of long-finned eel were also found in the stream. In summary, the Judge saidan important and/or reasonably significant habitat of a native fish species had beengrossly polluted by both suspended and deposited sediment. The numbers of fish inthe stream had sharply declined. The direct effect of the incidents on the estuaryenvironment could not be established.37 At [84].38 Nelson City Council v KB Contracting and Quarries Ltd, above n 4.[81] The Judge considered that, in the particular circumstances of that case, theaffairs of the two defendants were so intermingled that to find against one would comeout of the pocket of the other as well, so it was appropriate to take a global startingpoint as between the two defendants. The Judge arrived at an appropriate startingpoint of $120,000.[82] It was not submitted to the sentencing Judge in this case that the affairs of MrTrent and Emergent were so intermingled that the fine of one would inevitably betreated as a fine against the other. The Judge assessed the two defendants as beingculpable in different ways although arising out of the same event. The harm done bythe discharge appears to have been significantly worse in the current case than in KBContracting.[83] The case which the Judge considered was most similar was that of AucklandCouncil v Jenners Worldwide Freight Ltd, a judgment of February 2015.39 In Jenners,the Judge referred to 11 cases that had been cited to her by counsel, with reference tothe adopted starting point in those cases, before she arrived at a starting point of$180,000 for the defendant company in that case.[84] In Jenners, a junior employee had stacked a container containing the hazardousmaterial methyl violet. Because of the way it had been stacked, the container fell andruptured on the ground. The contents spilt, eventually travelling to stormwater pipesand then into a freshwater and inter-tidal zone, and approximately 3.5 km of estuaryenvironment. The employee had not been properly trained in how to store hazardoussubstances. As in the current case, the environment into which the hazardous materialflowed was being restored in conjunction with local Iwi. As a result of thecontamination, the land, stream banks, vegetation and stream beds were stained. Thespill adversely affected macro-invertebrates and the habitat and food for this fauna.There was substantial kill of fish and eels, similar to the damage done in the subjectcase. Aquatic life was also affected within the estuary and along its entrance. The useand enjoyment of the waterway and estuary by people accessing them, including but39 Auckland Council v Jenners Worldwide Freight Ltd, above n 6.not limited to Iwi, was also affected by the way methyl violet was in the sediment. Ashere, the company was proactive and responsible in responding to the calamity.[85] After a full review of relevant cases cited to her by counsel, Judge Harlandsaid:40I have decided that the appropriate starting point is a fine of $180,000. Thisreflects the nature of the environment, the severity of the impact on theenvironment, the fact that some of the effects are still evident – although thereis some hope that it can be remediated. It takes into account the negligentactions of the various managers and the management of the company overall.It is sufficiently high to provide a deterrent to other businesses involved in thestorage and handling of hazardous substances and it is relative to the size andwealth of the company. The starting point is 30% of the total available to theCourt.[86] In this case, the Judge arrived at an appropriate starting point sentence for bothEmergent and Mr Trent with particular regard to the starting point adopted in Jennersfor a corporate offender for similar offending and a similar acceptance of responsibilityand expression of remorse of $180,000. It was not submitted for Mr Trent before meon appeal that the particular financial circumstances of either Emergent or Mr Trentwere such that the starting point in Jenners should not have been relied on so heavilyas a reflection of the seriousness of Mr Trent's offending. There was no suggestionthat he was less able to pay a fine than the corporate offender.[87] In those circumstances, the starting point adopted in Jenners for similaroffending was properly of some assistance to the Judge in arriving at a starting pointfor Mr Trent's offending. The starting point did not have to be different simplybecause Mr Trent was an individual.[88] It was not submitted to me on appeal that the Judge should not have consideredthe starting point sentences in Jenners, Greenwaste or KB Contracting as relevant inarriving at a starting point sentence for Mr Trent. Emergent has not appealed itssentence based on a starting point of $180,000.40 At [51].[89] I do not consider the fine imposed on Mr Trent was so out of line with sentencesimposed in similar cases that, on that basis, it was out of range and manifestlyexcessive.Ground three – incorrect reference to and reliance on increasing sentences[90] As referred to earlier, when discussing Ravensdown and the sentencing of MrBlackstock, the Judge stated "[t]hat decision is now some eight years old and I thinkit might be observed that there has been some considerable upward movement insentencing levels since then".41[91] Mr Mackenzie submitted the Judge was in error in saying there had been aconsiderable upward movement in sentencing levels for such offending. He arguedthe increase related to sentences for discharges of dairy effluent and there had been nopattern of cases which demonstrated an increase in sentencing levels for discharges oftoxic waste.[92] Mr McGuigan submitted there was no error in the Judge referring to the waypenalties for this sort of offending had increased since the Ravensdown case. He saidthere may have been only a small number of toxic waste cases in comparison toprosecutions of discharge of dairy effluent offending but such cases as there had beenwere consistent with there having been an increase for toxic waste offences. There ismerit in that submission.[93] The need for increased sentences by way of deterrence has not however beenconfined to such cases. In Sowman, Judge Hassan said "[o]n the matter of relativeculpability, I accept the Council's submission that the bands set out in Chick, albeit inrelation to dairy effluent cases, are of assistance."42 Judge Hassan then accepted thesubmission from the Council that, applying those bands in Chick, it was "important tobear in mind that levels of sentencing for various RMA offences have increased overthe years".4341 Canterbury Regional Council v Emergent Cold Ltd, above n 1, at [13].42 Marlborough District Council v Sowman, above n 15, at [42], citing Waikato Regional Council vGA & BG Chick Ltd (2007) 14 ELRNZ 291.43 At [43].[94] The rationale for increased sentences by way of deterrence is relevant not onlyto dairy effluent cases. In Southland Regional Council v Baird, in relation to effluentoffending, the Judge said:44The need for the community, through the Court, to denounce offending whichpollutes our waterways and to deter such offending continues to be a majorconsideration in sentencing for this offending.[95] Mr Mackenzie submitted that toxic discharge cases have been few and farbetween and are often accidents and difficult to foresee (compared for instance with atypical effluent case of an overflowing effluent storage pond or excessively irrigatedpaddock).[96] I do not accept there had to be a distinction between toxic waste cases and dairyeffluent cases on that basis. The rationale for differentiating Mr Trent's offending inthis instance from what Mr Mackenzie described as a typical dairy effluent case is notvalid. Here, Mr Trent was in charge of and used the purging tank close to a gutterwhere, if the ammonia-contaminated water overflowed without a bund in place toprotect overflow, it was certain to go into the Council stormwater system. From there,he should have been aware it would reach a natural waterway. This was not anoverflow and a contaminating discharge which was difficult to foresee.[97] Nor do I think there would necessarily have been an error in the Judgeconsidering the way increasing penalties for dairy effluent offending was a trend thatcould be relevant to sentencing for toxic waste offending. The factors of mostsignificance in RMA offences are:(a) a relative culpability in the offending, for example whether it wasdeliberate, reckless or careless and as to degrees in those matters;(b) the nature of the environment affected and the extent of damage; and(c) denunciation, and related matters as to general and specific deterrence.44 Southland Regional Council v Baird [2018] NZDC 11941 at [41].[98] Having regard to those matters, there is no reason why the ways those factorscould result in increased sentences should have to be less for toxic waste offendingthan for dairy effluent discharges.[99] I do not consider the Judge's comment as to a trend of increasing sentences forRMA offending of the sort that occurred here was in error or that, in the particularcircumstances of this case, it has led to his imposing a fine on Mr Trent which wasmanifestly excessive.Conclusion[100] It was not suggested for Mr Trent that the Judge made any error in assessingthe seriousness of his offending or his particular culpability for what occurred. MrTrent did not deliberately discharge contaminated water into the Council's stormwatersystem but he consciously did not have the purging tank under observation for asignificant period. There was no bund in place to restrain any overflow. There wasno issue taken before me with the statement on behalf of the Council that Mr Trentwas the South Island's engineering manager for Emergent, a nationwide companyoperating refrigerating warehouses.[101] The summary of facts referred to Emergent having contracted anothercompany to recover ammonia refrigerant from the system when the cool stores werebeing decommissioned. Emergent advised Council investigators that Cool Logic hadpreferred to use the purging system in the plantroom as it thought the outside purgingtank should have been bunded. Polar Cold agreed with Cool Logic.[102] The serious failings on Emergent's part and also the different but particularfailings on Mr Trent's part caused particularly serious environmental damage, moredamage than most other instances of toxic waste discharges that have been referred toin other cases. It has not been shown that the starting point adopted for Mr Trent'soffending was manifestly excessive by reason of errors as was submitted for him. Hereceived credit for his record of past good character and guilty plea. No issue wastaken with those discounts.[103] The starting point fine for the individual could have been reduced if there wassomething about Mr Trent's financial circumstances that made this appropriate. It wasnot suggested in either the District Court or before me on appeal that this was anecessary consideration.[104] In this case, the total fines imposed on both Emergent and Mr Trent totalled$242,350. That was a substantial sum but it was not suggested this was a situationwhere the affairs of Mr Trent and Emergent were so intermingled that a fine againstone was effectively a fine against the other. There was no suggestion that Emergentwas effectively a small company and the alter ego of Mr Trent.[105] I conclude the sentence imposed on Mr Trent was within the range of sentencesreasonably available to the sentencing Judge. I have not been persuaded that thesentence imposed was manifestly excessive.[106] Mr Trent's appeal is dismissed.Solicitors:T J Mackenzie, Barrister, ChristchurchWynn Williams, Christchurch.