Orchard awaits water fine appeal verdict

TRACY NEAL
Last updated 15:01 27/03/2014

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A Waimea Plains fruit growing firm which won an appeal against a sentence because of an error in the facts to which it had pleaded guilty, must wait until next month to find out if its $29,000 fine might be reduced.

Eden Road boysenberry and apple orchard was fined $29,100 in December last year in a case that was the first of its kind for the Nelson region. It was penalised for taking excess ground water above what it was allowed, and during a drought.

The company admitted that it pumped about 1500 cubic metres more water than it was entitled to, between March 11 and 18 last year, in breach of two consents issued under the Resource Management Act.

Tasman District Council lawyer Antoinette Besier said earlier it was the first court case of its kind to be heard in the region and therefore the sentence would set a legal precedent for future cases.

The company appealed the sentence on the basis the judge had placed "significant weight on an incorrect fact, resulting in a manifestly excessive sentence".

Justice Goddard allowed the appeal and withdrew the earlier sentence.

Justice Goddard said the basis of the appeal was that an error was made in respect of Eden Road's history of compliance, and also therefore its "level of culpability and the degree of its sense of social responsibility".

Eden Road's compliance history had not been referred to in the agreed summary of facts. The company had admitted the charges outlined in the summary.

The prosecutor referred to an alleged history of warnings and non-compliance during sentencing, saying the council had observed "excessive water use" on 17 occasions, and that the council had issued four warnings to Eden Road.

The company's lawyers did not challenge the allegations. During sentencing in the Environment Court, Judge Melanie Harland erroneously translated the prosecutor's submission about the number of occasions into Eden Road having received "17 warnings" from the council, which it had ignored, Justice Goddard said in his sentencing appeal judgment.

After the decision was released the prosecutor filed a memorandum addressing her error.

Justice Goddard said Judge Harland's approach to sentencing was "careful and assiduous".

Last Friday's resentencing opened the way to present refreshed arguments. The prosecution submitted an appropriate starting point for a fine of $35,000 discounted to $26,000 or $13,000 for each offence said to be the result of a cavalier approach by the defendant. The defence sought a fine closer to $5000. It maintained that the RMA breaches were unintentional.

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Ms Besier said during last week's resentencing hearing that there was no evidence to say the offending was deliberate, but there was no adequate explanation for it either.

She described the four incorrect readings supplied to the council as displaying a "high degree of carelessness". She stood by earlier submissions that the company's attitude had been cavalier, and that the offending was more serious because of the drought conditions at the time.

Defence lawyer Graeme Downing said the offences occurred over a short period and restrictions on water take were lifted the following week, after significant rain.

"The defendant acknowledged the error and wrong-doing, and faced up to the responsibility," Mr Downing said.

He said Eden Road had put in place remedial steps to minimise future risk.

"The suggestion of a high degree of carelessness is not supported by evidence. They acknowledge there was a lack of care in the manual [recording] system but that doesn't transpose to a high degree of carelessness towards their environmental obligations," Mr Downing said.

Judge Harland reserved her decision. A sentence is to be re-issued on April 16.

- The Nelson Mail

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