IN THE Court of appeal OF new Zealand
	
CA806/2009
[2013] NZCA 438

BETWEEN	
WILLIAM VICTOR GEORGE CONWAY
Appellant	

AND	
THE QUEEN
Respondent	

Hearing:	
9 September 2013	

Court:	
Wild, Cooper and Lang JJ	

Counsel:	
R A A Weir and H J Carson for Appellant
J M Jelas for Respondent	

Judgment:	
24 September 2013 at 10.30 am	

JUDGMENT OF THE COURT

A	The appeal, which is against both conviction and sentence, is dismissed.

B	The appellant must surrender himself to the Registrar of the District Court at Auckland at 10 am on Friday 27 September 2013 to commence his sentence.
____________________________________________________________________

REASONS OF THE COURT

(Given by Wild J)
Introduction
[1]	On four grounds Mr Conway appeals against his conviction for offences under the Resource Management Act 1991 (the RMA).  Those convictions were entered by Judge Harland following a month long jury trial in the District Court at Auckland in August and September 2009.
[2]	Mr Conway appeals also against the sentence of six and a half months imprisonment imposed on him by Judge Harland on 18 December 2009.  
[3]	Although the appeal was filed promptly on 21 December 2009, no fewer than five fixtures to hear it have had to be adjourned over the intervening three and a half years, for differing reasons.  None of those adjournments has been caused by this Court.
[4]	Counsel informed us that Mr Conway has been on bail throughout that lengthy period, pending the outcome of this appeal.
Factual background
[5]	From about July 2001 Mr Conway and his partner Ms Carol Down operated a scrap metal dealing business at 11 Bairds Road, Otara.  The business was operated by Cash For Scrap Limited (CFS).  Ms Down was that company’s sole director and only shareholder.  Mr Conway had responsibility for the day to day running of the scrap metal business.
[6]	Concerns about the way the scrap metal yard was being operated led the Auckland Regional Council (ARC) to serve two abatement notices, one on CFS and the other on Mr Conway, in 2001.
[7]	In November 2002 the ARC charged CFS and Mr Conway with unauthorised discharges of contaminants at 11 Bairds Rd and failure to comply with an abatement notice.
[8]	On 19 December 2002, on the application of the ARC, Judge Whiting made in the Environment Court an enforcement order against CFS and Mr Conway requiring them to cease operating the scrap metal yard at 11 Bairds Rd until measures were taken to comply with the applicable resource consents and provisions of the RMA.
[9]	In or about March 2003 CFS extended its scrap metal business onto the adjoining property at 13 Bairds Rd, Otara.
[10]	In May 2003 the ARC laid further charges against CFS, Mr Conway and Ms Down alleging breaches of the 19 December 2002 enforcement order during the first half of 2003.
[11]	Those charges relating to offending in 2001 and 2003 were set down for trial in the District Court commencing on 17 November 2003.  At the start of the trial both CFS and Mr Conway pleaded guilty to nine of the charges.  In May 2004 Judge J P Doogue fined CFS $25,000 and sentenced Mr Conway to three months imprisonment.
[12]	In a judgment delivered on 8 November 2004 this Court dismissed appeals against sentence by CFS and Mr Conway.  We revert to that judgment in [70] below, in dealing with Mr Conway’s appeal against sentence.
[13]	Between May and August 2005 CFS:
(a)	advised the ARC that it withdrew an application it had made on 6 October 2004 for a discharge permit in relation to 11 Bairds Rd;
(b)	applied to the Environment Court for a declaration of permitted or existing use rights; and
(c)	also applied to the Environment Court to cancel or amend the enforcement orders Judge Whiting had made on 19 December 2002.
[14]	CFS’ two applications were dismissed by the Environment Court in a decision given on 6 December 2005 by Judge McElrea.  The Judge confirmed the enforcement order made by Judge Whiting on 19 December 2002.
[15]	On 5 August and 26 August 2005, and again on 31 January 2006, the two Bairds Rd properties were inspected by enforcement officers from the ARC.  Mr Campbell Sturrock was one of the officers who carried out all three inspections.
[16]	On 3 February 2006 the ARC laid the charges in the indictment (counts one to 16) relating to 11 or 13 Bairds Rd, Otara.  On 16 February 2006 the ARC applied for enforcement orders in relation to 13 Bairds Rd.  
[17]	On 28 September 2006 Judge Smith made in the Environment Court enforcement orders against CFS, Mr Conway and Ms Down in relation to 13 Bairds Rd. 
[18]	On 10 October 2006 Judge Smith in the Environment Court issued an enforcement order in relation to 13 Bairds Rd.  The Court’s orders also prohibited CFS, Mr Conway and Ms Down from any participation in any other recycling or waste operation unless they first put in place appropriate measures to prevent unauthorised discharges of contaminants and obtained the necessary resource consents.
[19]	On 24 October 2006 CFS shifted its scrap metal business from the Bairds Rd properties to 57 Tidal Rd, Mangere.  At the new site, CFS carried out its scrap metal operations, in particular the de-fuelling of vehicles, inside a building.  Those operations largely complied with all the applicable resource consents and provisions of the RMA.  Unfortunately, the building was largely destroyed in a fire on 5 February 2007.
[20]	Mr Carter, another enforcement officer of the ARC, inspected CFS’s scrap metal operations at Tidal Rd on 22 March 2007.  Since the fire, the de-fuelling of vehicles being scrapped had been conducted in the open and no longer complied.  Further charges (counts 21, 23, 24 and 26 in the indictment) were subsequently laid.
The indictment
[21]	The charges in the indictment can be summarised thus:

Count No	Defendant(s)	Particulars 	
1	Mr Conway and Ms Down	Breach of 19 December 2002 enforcement order by continuing to operate on or about 5 August 2005 the scrap metal business on 11 Bairds Rd, and without having put in place measures to prevent unauthorised discharge of contaminants and without having obtained the resource consents.
Section 338(1)(b) RMA.	
2	Mr Conway	Discharging a contaminant onto land at 11 Bairds Rd on or about 5 August 2005 in circumstances which may have resulted in that contaminant entering water, otherwise than as permitted by a regional plan, resource consent or regulation. 
Sections 15(1)(b) and 338(1)(a) RMA.	
3 (as an alternative to count 2)	Mr Conway and Ms Down	Same as for count 2, except permitting the discharge of a contaminant onto land at 11 Bairds Rd.
	
4	Mr Conway	Same as for count 2, but discharging a contaminant onto land at 13 Bairds Rd.
	
5 (as an alternative to count 4)	Mr Conway and Ms Down	Same as for count 4, except permitting the discharge.
	
6	Mr Conway and Ms Down	Same as for count 1, save that the breach occurred on or about 26 August 2005.	
7	Mr Conway	Same as for count 2, save that the discharge occurred on 26 August 2005.	
8 (as an alternative to count 7)	Mr Conway and Ms Down	Same as for count 3, save that the permitted discharge occurred on or about 26 August 2005.
	
9	Mr Conway	Same as for count 7, save that the discharge was onto land at 13 Bairds Rd.	
10 (as an alternative to count 9)	Mr Conway and Ms Down	Same as for count 8, save that the permitted discharge was onto land at 13 Bairds Rd. 
	
11	Mr Conway and Ms Down	Same as for count 1, save that the breach occurred on or about 31 January 2006.	
12	Mr Conway	Same as for count 2, save that the discharge occurred on or about 31 January 2006.	
13 (as an alternative to count 12)	Mr Conway and Ms Down	Same as for count 3, save that the permitted discharge occurred on or about 31 January 2006.
	
14	Mr Conway	Same as for count 4, save that the discharge occurred on or about 31 January 2006.	
15 (as an alternative to count 14)	Mr Conway and Ms Down	Same as for count 5, save that the permitted discharge occurred on or about 31 January 2006.
	
16	Mr Conway and Ms Down	Same as for count 1, save that the breaches occurred between 5 August 2005 and 31 January 2006 at 11 Bairds Rd.
Continuing offence.	
21	Mr Conway and Ms Down	Between 5 February 2007 and 22 March 2007 contravening the enforcement order made on 10 October 2006 by Judge Smith in the Environment Court by operating a recycling or waste operation at 57 Tidal Rd, Mangere without having put in place appropriate measures to prevent the unauthorised discharge of contaminants and without having obtained all necessary resource consents under the RMA.
Continuing offence.	
23	Mr Conway and Ms Down	Between 5 February 2007 and 22 March 2007 permitting the discharge of a contaminant onto land at 57 Tidal Rd (otherwise than as permitted by a regional plan, resource consent or regulations).
Continuing offence.	
24	Mr Conway and Ms Down	Same as for count 21, save the breach occurred on or about 22 March 2007.	
26	Mr Conway and Ms Down	Same as for count 23, save that the discharge occurred on or about 22 March 2007.	
Grounds of appeal
Against conviction
[22]	The four grounds are:
(a)	there was insufficient evidence to support the convictions on the charges of breach of the enforcement orders (counts one, six, 11, 16, 21 and 24);
(b)	unfair admission of Mr Conway’s previous statement as to his role in CFS;
(c)	there was not the required proof that the contaminants discharged onto the properties at 11 and 13 Bairds Rd had the potential further to degrade the stream that ran along the bottom of the properties (counts two–five, seven–10 and 12–15); and
(d)	the circumstances in which they were delivered rendered all the jury’s guilty verdicts in relation to Mr Conway unsafe.
Against sentence
[23]	The sentence of six and a half months imprisonment is challenged as manifestly excessive.  It should be quashed and a sentence of community work substituted.
Convictions for breach of enforcement orders against the weight of evidence
11 Bairds Road
[24]	Mr Conway submitted that his convictions (on counts one, six, 11 and 16) for breaching, both on specific dates and continuously between 5 August 2005 and 31 January 2006, the Environment Court’s 19 December 2002 enforcement order to cease activities on 11 Bairds Rd pending compliance, were not supported by the evidence.  He argued that the jury could not have been satisfied of his guilt to the required standard.  
[25]	Drawing on the summary of facts, and on selected passages in the evidence, Mr Weir submitted that “all that was happening on number 11 was that there was a transitory weighing of the materials before being unloaded onto Lot 13”, which was not covered by the enforcement order.
[26]	Ms Jelas for the Crown responded to this first ground of appeal by pointing to various parts of the evidence establishing these breaches.  When we inquired of Mr Weir whether he accepted, as correct, the Crown’s summary of the evidence, he told us he did.  He emphasised that he was pursuing this ground on “firm instructions”.  Our own review of the evidence satisfies us that this first ground of appeal lacks any merit.  Mr Conway was in Court during the hearing and heard all this evidence.  He would have been well aware that the evidence of breaches of the enforcement order in respect of 11 Bairds Rd was overwhelming.  Mr Conway’s insistence that this ground of appeal be pursued does not reflect well on him.
[27]	We therefore propose to summarise some only of the evidence, and then only in relation to the inspections of 11 Bairds Rd on 5 August 2005 (the first inspection) and 31 January 2006 (the third and last inspection).  This evidence was given by Mr Sturrock, who at the time was an enforcement officer with the ARC.
5 August 2005 inspection
[28]	In the following exchange Mr Sturrock described generally what he observed at the Bairds Rd properties:
Q	You said that the site appeared busy, here we’re dealing with two properties 11 and 13, were they both busy or was one busy or are you unable to say?
A	There was activity on both sites, the weighbridge is on number 11 so that was being actively used with customers weighing trucks and cars with trailers and things being weighed on the weighbridge at number 11, there was metal and things stored on number 11 and also on number 13 and that the picker and the shipping container were being loaded particularly on number 13.  So that was my first impression as I entered the gate coming through number 13.
Q	And the vehicles that were going onto the weighbridge, how were they getting onto the weighbridge?
A	They were driving through the gates which was the entranceway by number 13 and across and down onto the number 11 and then they’d swing around and offload and out the gate again.
[29]	Secondly, Mr Sturrock confirmed that the press used for crushing/compacting drums and other metal was situated on 11 Bairds Rd, on unsealed ground at the rear of the building on No 11.  At the time of his inspection on 5 August 2005 he noticed that the press was being used to crush 200 litre steel drums labelled as having contained isocyanate.  He explained to the Court that isocyanate is a hazardous, polyurethane type chemical.  There was this exchange:
Q	Were you able to tell if those drums still contained any chemicals?
A	Yes they definitely had residual chemicals in them when they were squashed I could see chemical leaking out of them onto the ground and I could also smell a solvent like odour in the air when they were squashed and they punctured.
Q	The ground here is that sealed or unsealed?
A	It’s unsealed.
[30]	Mr Sturrock was asked about the position of the scrap metal pile on the Bairds Rd properties, with reference to photograph six (one of 46 Mr Sturrock took during his inspection on 5 August 2005, which were produced as Exhibit Bairds 10.)  Mr Sturrock gave this explanation of what photograph six showed:
Q	Photograph 6 is that another photograph of the scrap metal pile?
A	Yes that’s correct that photo is taken looking basically along the boundary of 13 and 11 Bairds Road so it’s taken along the line of the boundary of the two properties so it shows that the pile of scrap was if you like astride both 13 and 11 so those cars on the right there were holding on 11 Bairds Road and to the right of the photo is the storage shed I described earlier where stormwater would flow into where they stored oil and fuels and things in containers and drums.
[31]	A little later when Mr Sturrock was being taken through some of the later photographs there was this exchange:
Q	You said that these photos were taken of the pile as it was on 13 Bairds Road?
A	Yes.
Q	Generally speaking was that pile contained solely on 13 Bairds Road?
A	No it spilled over onto 11 as indicated in some of the earlier photographs.
[32]	Mr Sturrock was also asked about a photograph he took looking into the storage shed on 11 Bairds Rd:
Q	Photograph 12?
A	That’s a photograph looking into the storage shed on 11 Bairds Road, can I indicate on the site plan standing in this vicinity looking into this shed.
Q	So standing on 11 Bairds Road with the scrap metal behind you looking at what’s marked as a Storage Shed?
A	Yes.
Q	And what can we see in that photograph?
A	You can see water ponded inside the shed and so as I indicated earlier and stated earlier, when it rains rainwater flows into that shed because the property is sloped that way, there’s nothing to prevent rainwater entering the shed so it’s water that’s ponded and inside the shed in the background you can see chemical drums with its got a hazardous substance little symbol on it, the little X in the orange.  You can see in the middle foreground there’s some oily substance and that whole floor of that shed was sort of muddy and it had an oily appearance to the mud and an oily sheen on the surface of the water.
[33]	Mr Sturrock’s photograph 27 showed drums that at some stage had stored chemicals, corrugated iron, car doors and other types of scrap metal stored on the ground.  There were also white scrap bins that Mr Sturrock explained were being used for storing oily engine parts and the like.  In the background behind all this material the photograph showed the orange coloured picker – the machine that was used to shift the scrap metal.  There was then this exchange:
Q	In relation to the material we can see in photograph 27, so everything in front of the orange picker, are you able to say whether that was on 13 Bairds Road or if it was on 11 Bairds Road?
A	The majority of this side of the picker if you like is on 11.
Q	When you say this side of the picker?
A	The side closest to me taking the photo, yes on the muddy yard.
[34]	Video footage taken by Mr Sturrock during his 5 August 2005 inspection was also shown to the Court.  Mr Sturrock was then taken through some clips from the DVD, for example in relation to clip four:
Q	There Mr Sturrock we can see the press and a large pile of material behind it.  Is that the scrap pile as marked on that map there or is it a different pile of material?
A	The scrap pile was very extensive on 13 and 11 Bairds Road on that particular day, it spilled over onto 11, the press is located on number 11.  The squashed drums and things are on number 11, some of those cars in the background are on number 11, some of them are on number 13. 
31 January 2006 inspection
[35]	Mr Sturrock made this inspection with a fellow enforcement officer, Mr Leon Blackburn.  Mr Sturrock was asked for his general observations of the Bairds Rd properties on this inspection.  He said:
A	In a general sense, activities were still continuing on both sites, scrap metal was being stored and handled on both 11 and 13.  The press had gone from number 11.
Q	This is the press that was being used to squash the drums, is that correct?
A	…  I would say generally there was an improvement in the state of the site but there was certainly still activities and leaks and discharges that were of concern to us that in my opinion still constituted a non-compliance of the enforcement orders.
[36]	Asked about the location of the scrap metal pile, Mr Sturrock stated:
… predominantly confined to almost entirely confined to 13 Bairds Road on this occasion, still some on the following photographs 5 and 6 you can see some of it spilling over onto 11.
[37]	Again, Mr Sturrock had taken a series of photographs, which were produced as Exhibit Bairds 19.  With reference to photographs 5–13, Mr Sturrock said that two skip bins in which engines and car parts were stored remained on 11 Bairds Rd.  He was asked about possible contamination from the contents of these bins:
Q	Does that have any particular concern as far as possible contaminants?
A	Yes, certainly.  The main concern is oil leaking out of the engines.  And that is, was certainly the case which you can see in photograph 8.  There’s oil contaminating around the bottom edge of the skip bin and it had flowed across 11 a little bit and the light material that’s shown in the middle of the photograph, again is some sawdust thrown down in an attempt to clean it up.
[38]	Mr Sturrock added that these bins now “clearly did have holes in them” allowing oil to leak out.  He explained that the skip bins were periodically removed from the site to be emptied.  He elaborated on the oil that had leaked from one of the skip bins:
Yes, the skip bin is on 11 Bairds Road.  And in photograph 10 is another angle of the same bin, again showing some sawdust that’s been thrown down.  The centre of the photo you can see the dark black oil that’s been soaked up by the sawdust, staining the ground.
57 Tidal Rd, Mangere
[39]	Counts 21 and 24 charged breaches, between 5 February and 22 March 2007, of the enforcement order made by Judge Smith in the Environment Court on 10 October 2006, in respect of 27 Tidal Rd, Mangere.
[40]	As mentioned in [19] and [20] above, the focus of these charges was the defueling of cars in the open after the building on 27 Tidal Rd was destroyed by fire.
[41]	Mr Weir submitted that there was “no actual evidence” that Mr Conway was aware that this was happening, and “no actual evidence from which the jury could make such a proper inference”.  We think Mr Weir means that there was no evidence that Mr Conway was actually aware that this was happening, nor any evidence from which the jury could safely infer that he was.
[42]	Again, the Crown pointed to evidence to the contrary, and Mr Weir accepted that this evidence had been given.
[43]	The Crown called Mr Glenn Murray, who was working for CFS at Tidal Rd when the building was damaged by fire.  Mr Murray stated that both Ms Down and Mr Conway had come to the Tidal Rd property after the fire.  He said Mr Conway’s reaction to the fire “was more like, the hell is going on here?”.  Mr Murray was asked:
Q	Did you ever discuss what was going to happen after the fire with Mr Conway?
A	He just said, are we gonna be here tomorrow?  And I said yeah.  And that was basically it, I mean there wasn’t anything else we could do and we did have to clean the site up still.  So yeah, and that would have basically been all on that, with after the fire.
[44]	Mr Murray was asked whether he recalled Messrs Rowan Carter and Leon Blackburn of the ARC coming to the Tidal Rd property on 22 March 2007 to inspect.  He did.  This evidence followed:
Q	Do you remember what happened?
A	Yep, the, Rowan and them came in with their warrant as per normal, I said to them they could take samples and they informed me that they were here, I got a phone call from Mr Conway asking what they’re doing, I said they want to take samples.  He said, “Does the warrant say.”  I said it’s the normal warrant to come in and take photos, didn’t say anything about taking samples.  It was close to knockoff.  The police were called, one of my drivers came and I was in discussion with Mr Conway and I said one of the boys is back and he said, well can we park the truck up by the sip and I said, yep, so we parked the truck up there.  …
[45]	Mr Murray confirmed that telephone discussion with Mr Conway on 22 March 2007 a little later in his evidence.  Mr Murray added that up to “maybe 15 a day” cars were being defueled at the Tidal Rd property.  He explained that “a lot of our customers followed us, when we shifted from Bairds Rd … to Tidal Rd”.
[46]	That evidence provides a basis from which the jury could safely infer that Mr Conway was well aware that operations were continuing at the Tidal Rd property after the fire, and in the open because the fire damaged building could no longer be used.  Indeed, the inference was open to the jury that Mr Conway actually directed that operations continue in the open.
[47]	This first ground of appeal lacks any merit, and is dismissed.
Unfair admission of Mr Conway’s previous statement
[48]	This second ground effectively challenges a pre-trial ruling Judge Harland gave on 9 April 2009 admitting evidence Mr Conway had given in previous civil proceedings.  The nub of that evidence was an acceptance by Mr Conway that he had responsibility for “the day-to-day running of [CFS] so far as the metal side is concerned”.
[49]	Mr Conway gave that evidence before Judge McElrea in the civil proceedings referred to in [13](b) and (c) and [14] above.  Judge Harland ruled that the evidence was relevant and admissible in the criminal proceeding she was to preside over.
[50]	Given that Mr Conway had exercised his right to silence in the prosecutions against him, Mr Weir submitted that admission of this evidence, given in a prior civil proceeding, was unfair.
[51]	We do not accept that submission.  The first point is that Mr Weir rightly does not suggest the evidence is unreliable, and therefore s 28 of the Evidence Act 2006 does not apply.  We see nothing unfair about the admission of this evidence in the criminal prosecution.  Mr Conway gave the evidence on oath in the Environment Court, and obviously intended that the Court rely on it as accurate and truthful in considering CFS’ two applications.  We can see no unfairness to Mr Conway in the District Court relying on the same evidence when considering Mr Conway’s culpability on the charges he faced.  
[52]	Even if this ground had merit, there was ample other evidence establishing that Mr Conway had responsibility for the day to day operations of CFS.  It came from three witnesses.  The first was Mr Murray, who said that Mr Conway had asked him if he would “stay in the yard and look after things”.  Asked to whom he reported he said:
I thought Bill [Conway] was the man and Ray [Moorhead] was the        right-hand man and the money man.  He looked after the financial side of the company.
[53]	The second was Mr Moorhead who gave evidence for the defence.  He had been CFS’ accountant from 2002 to 2007.  Asked about Mr Conway’s role with CFS he answered “he ran the company”.  The third witness was Mr Lyon, CFS’ solicitor, also called for the defence.  Asked by the Crown who he received his instructions for CFS from, Mr Lyon said it was mostly from Mr Moorhead.  He said that he did receive instructions from Mr Conway, adding:
… but Mr Conway was the front really for the company so he was the guy walking around in the yard, he was the metal man so he knew on a day to day basis what was happening and so, from time to time he would get in touch with me with problems they were having.  Prosecutions, other things they needed, or the instructions would come through Mr Moorhead, but yes from time to time Mr Conway. 
[54]	A little later there was this exchange in cross-examination of Mr Lyon:
Q	…  You said that Mr Conway was, I think your words were the front man in relation to Bairds Road, he knew the business?
A	He was the man, if you drove an old wreck and you’d run him over before you can get to the pay check.
Q	Right, did that role continue onto 13, to 57 Tidal Road?
A	They actually had a window where people would drive pass and they would pass cheques in and out so you didn’t really see Bill.  He was in under cover.
Q	But still on the site?
A	Oh I think so, yes, yeah.
[55]	To summarise, admission of Mr Conway’s prior evidence was not unfair.  There was anyway other evidence from three witnesses firmly establishing that Mr Conway had responsibility for the day to day operations of CFS.  This second ground of appeal also lacks merit and is dismissed. 
No proof of contamination
[56]	The following summarises Mr Weir’s argument on the third ground of appeal, as we understood it:
•	the relevant charges were that Mr Conway discharged or permitted a discharge onto the Bairds Rd properties in circumstances which may have resulted in the contaminant entering water;
•	in terms of the definition of “contaminant” in s 2 of the RMA, the important element is the fact that the contaminant is likely to change the physical, chemical or biological condition of water;
•	given the purpose and principles of the RMA, in particular avoiding adverse effects of activities on the environment, in the context of s 15(1)(b), contamination means that the discharge into water changes or is likely to change the physical, chemical or biological condition of the water for the worse.  The reference to water in the definition of contaminant must be a reference to the particular receiving waters rather than a generic reference to water.  In the present case, the reference is obviously to the risk of contamination of the stream running along the bottom of the Bairds Rd properties;
•	it was therefore necessary for the Crown to prove that the contaminants discharged onto the Bairds Rd properties had the potential further to degrade the stream;
•	as there was no evidence as to the actual condition of the stream, there is no proof that the contaminants discharged onto the Bairds Rd properties had the potential further to degrade the quality of the water in the stream; and
•	the same argument applies in relation to the Tidal Rd charges.
[57]	The starting point in assessing this argument is the s 2(1) definition of contaminant and s 15 under which the relevant charges were laid.  Section 2 of the RMA provides:
Contaminant includes any substance (including gases, odorous compounds, liquids, solids, and micro-organisms) or energy (excluding noise) or heat, that either by itself or in combination with the same, similar, or other substances, energy, or heat—
(a)	when discharged into water, changes or is likely to change the physical, chemical, or biological condition of water; or
(b)	when discharged onto or into land or into air, changes or is likely to change the physical, chemical, or biological condition of the land or air onto or into which it is discharged.
[58]	The relevant part of s 15 is:
15	Discharge of contaminants into environment
(1)	No person may discharge any—
(a)	contaminant or water into water; or
(b)	contaminant onto or into land in circumstances which may result in that contaminant (or any other contaminant emanating as a result of natural processes from that contaminant) entering water; or
…
unless the discharge is expressly allowed by a national environmental standard or other regulations, a rule in a regional plan as well as a rule in a proposed regional plan for the same region (if there is one), or a resource consent.
…
[59]	Paragraph (a) of the s 2 definition of contaminant defines a contaminant in conceptual terms.  It is something, when discharged into water, that can change its physical, chemical or biological condition.  The definition is not related in any way to the water which is the subject of the particular prosecution under s 15(1)(b), in this case the stream flowing along the bottom of the Bairds Rd properties or the tidal estuary surrounding the Tidal Rd property.  Contrasting paragraphs (a) and (b) of the s 2 definition of contaminant supports this reasoning.  It is only in the case of discharges covered by paragraph (b) that the statute explicitly refers to “the land” into which the contaminant is discharged.  By contrast, paragraph (a) refers generically to “water”.
[60]	Taking that reasoning into s 15(1)(b), the proscription is against discharging any contaminant onto or into land in circumstances which may result in that contaminant entering water.  It is the act of discharge of a contaminant which is proscribed.  An offence could be committed in respect of a discharge which does not actually enter water, but may do so.
[61]	What we have just said echoes the interpretation of the s 2 definition of contaminant adopted by Judge Dwyer in Manawatu-Wanganui Regional Council v Downer at [19]–[25], which we endorse.
[62]	Mr Weir’s argument is accordingly misconceived.  He is wrong to submit – as he ultimately did in oral argument – that an offence against s 15(1)(b) is only established if there is evidence that the contaminants actually entered the stream, and also evidence that they adversely affected the quality of the stream water.
[63]	The relevant charges were established when the Crown proved that Mr Conway had discharged contaminants onto the land at the Bairds Rd properties and the Tidal Rd property in circumstances which may result in those contaminants entering water.  And there was adequate evidence establishing that.  Mr Weir did not contest that.
[64]	This third ground of appeal also fails and is dismissed.
The circumstances in which the jury returned its verdicts rendered them unsafe
[65]	This is the fourth ground of appeal against conviction.  It appears the jury returned verdicts of guilty on all the charges Mr Conway was facing, including the counts laid against him in the alternative.  Our understanding is that the Judge then intervened with the result that Mr Conway was discharged on the alternative counts, pursuant to s 347 of the Crimes Act 1961.  
[66]	Exactly what took place is not clear, because Mr Weir was not able to provide us with a transcript of this part of the trial, although he had requested one from the District Court.  Mr Weir invited us to adjourn the appeal part heard, to enable him to obtain a transcript and decide whether this ground was to be pursued.
[67]	We are not prepared to do that.  It seems likely that what transpired was that the Judge clarified with the jury that its guilty verdicts on the alternative charges were against Ms Down and not against Mr Conway, because the jury had found him guilty of the offences alleging actual discharge of a contaminant eg counts 2, 4, 7 and 9.  Mr Conway could not therefore also be convicted on the alternative counts of permitting those discharges.
[68]	We can see no sensible basis for Mr Weir’s submission that the situation that apparently transpired made all the convictions entered against Mr Conway unsafe.  Mr Weir readily accepted that there was no reasonable possibility that the jury meant to return verdicts of not guilty on some of the counts against Mr Conway.
[69]	Accordingly, we decline to adjourn the appeal in respect of this ground, which we also dismiss.
Sentence appeal
[70]	This Court’s judgment in R v Conway to which we referred in [12] above, is the leading guidance on sentencing for offences under the RMA.  We have already pointed to the irony that the appellant in that case and the present appellant are one and the same.  In that case Mr Conway and CFS had each pleaded guilty to:
•	three charges of discharging contaminants onto land (the Bairds Rd properties) in circumstances that may have resulted in the contaminants entering water;
•	two charges of failing to comply with abatement notices issued by the ARC; and
•	four charges of contravening specific terms of enforcement orders made by the Environment Court (an interim enforcement order on 4 November 2002, and the enforcement order made on 19 December 2002).  As we mentioned, Mr Conway was appealing a sentence of three months imprisonment.
[71]	This Court said:
[65]	…  A short sentence of imprisonment may well deter Mr Conway from behaving in this way again.  He will realise that further offending of this type is likely to result in a longer period of imprisonment.  Equally, it may well deter other members of the community, of similar mind to Mr Conway, from ignoring or deliberately flouting the provisions of the Act or orders of the Environment Court.
[66]	If a sentence of imprisonment were not imposed potential offenders might well regard the economic risk of a fine, or the possible sanction of community work, as a risk worth taking to gain profit from illegal activities.  A short sentence of imprisonment (as evidenced by Mr Conway’s appeal to us to impose community work) is much more likely to be regarded as a deterrent by the community than a sentence of community work. 
…
[73]	When a Judge imposes a short sentence of imprisonment an appellate Court will necessarily focus on whether the sentence was an appropriate choice, rather than whether it was manifestly excessive.  We are satisfied that the sentencing goals of accountability, denunciation and deterrence could not have been achieved in this case by a sentence other than imprisonment.
[74]	For those reasons we are satisfied that the Judge was fully justified to impose a term of imprisonment.  We are also satisfied that the term of imprisonment imposed was appropriate.
[72]	That decision, coupled with our dismissing Mr Conway’s appeal against his further convictions, is not a promising start to Mr Conway’s appeal against the sentence of six and a half months imprisonment.
[73]	On our calculation, Mr Conway began offending again within about eight months after his release from prison.  His offending spanned about eight months and involved breaches of enforcement orders made by the Environment Court.  Against that background, we cannot view the sentence of six and a half months imprisonment as manifestly excessive.  Certainly, the sentence of community work contended for by Mr Weir would be a manifestly inadequate and inappropriate sentencing response.
[74]	Mr Weir relied on three sentencing decisions as supporting his argument that the sentence under appeal was manifestly excessive.  
[75]	Although referred to last by Mr Weir, the first in time is this Court’s decision in R v Borrett.  The District Court had sentenced Mr Borrett to 20 weeks imprisonment and ordered him to pay costs of $5,000 after a jury found him guilty on charges of contravening an interim enforcement order of the Environment Court and contravention of the rules of the Waitakere City Proposed District Plan.  Those charges related to illegal earthworks and illegal clearance of native bush on Mr Borrett’s property.  The Court’s judgment records that Mr Borrett had “a history of contravention of the Council’s requirements” spanning a period of about two and a half years.  The Court noted that Mr Borrett and his wife still had about $9,000 outstanding from earlier fines totalling $16,500 imposed after they pleaded guilty to similar offending.  The Court stated:
…  We concluded that in the circumstances a 12 week prison sentence was one that was appropriate for the offending.  Accordingly, as earlier indicated the appeal was allowed to the extent of quashing the sentence of 20 weeks imprisonment and imposing in its place a sentence of 12 weeks and quashing the order for [$5,000] costs.
[76]	Second is R v Campbell.  Judge Doogue fined Mr Campbell a total of $100,000 after he pleaded guilty to charges of breaching provisions of the RMA and Rules of the District Plan, including it seems charges under s 15(1)(b) of the RMA.  There were also charges of contravening an enforcement order issued by the Environment Court.  Mr Campbell was developing, at an expected cost of up to $5 million, a substantial landfill operation.  The charges involved dumping of demolition materials and other waste that was not clean fill in breach of the limited resource consent he had obtained, and in breach also of the enforcement order the Environment Court issued to halt his land filling operations that exceeded his limited resource consent. 
[77]	Water and leachates from Mr Campbell’s landfill were to be treated by a lake downstream from the landfill.  The Judge was critical of Mr Campbell’s “unswerving determination to keep operating his landfill” in the face of the Environment Court’s enforcement order.  Mr Campbell had one relevant conviction, for “a water quality type offence some years previously” for which he had been fined $1,000.
[78]	Judge Doogue commented:
[24]	Imprisonment has clearly been an option in this case.  By a narrow margin I am not going to impose imprisonment.  My hesitation in imposing imprisonment largely comes about because the prosecution has not sought it.  …
[79]	However, in setting the level of the fines, the Judge commented:
… but at the end of the day, it is wholly unrealistic to expect that a person in the position of [Mr Campbell] can flagrantly and persistently break the law and expect other than a stinging punishment.
[80]	The third decision is Maritime New Zealand v Balomaga.  This was the decision of Judge Wolff in which he was imposing sentences on the captain and navigation officer of the ship which grounded on the Astrolab Reef near the Port of Tauranga, resulting in “New Zealand’s possibly largest ecological disaster”.  The Judge was dealing with criminal charges (arising from the alteration by the men of the ship’s records to cover up the reason why it had collided with the reef), maritime safety charges under the Marine Transport Act 1994 and charges under the RMA.  The Judge sentenced each man to seven months imprisonment on the criminal charges.  For the reasons the Judge explained, which we need not elaborate upon, no penalties were imposed on the RMA charges.  This decision is consequently of no present assistance.
[81]	We find no support for the sentence appeal in any of those decisions.  In Borrett, which preceded this Court’s judgment in Conway, the Court substituted a lesser sentence of imprisonment for comparable, but less serious, repeat offending.  We say less serious because there were not charges under s 15 of the RMA.  In Campbell, the Judge did not imprison Mr Campbell only because the Crown did not seek that.  Instead she imposed what he described as “stinging” fines.  We are not persuaded that the sentence of six and a half months imprisonment under appeal is manifestly excessive.  On the contrary, we regard it as entirely justified for this raft of further, serious offending which commenced within eight months of Mr Conway’s release from prison after completing a sentence of three months imprisonment for similar offending.
[82]	Accordingly, the appeal against sentence is dismissed.
Result
[83]	None of the grounds of appeal against conviction has succeeded.  The appeal against conviction is accordingly dismissed.
[84]	The appeal against sentence is also dismissed.
[85]	The appellant must surrender himself to the Registrar of the District Court at Auckland at 10 am on Friday 27 September 2013 to commence his sentence.

Solicitors: 
Public Defence Service, Hamilton for Appellant
Crown Law Office, Wellington