IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2009-419-000067
CRI 2009-419-000068
CRI 2009-419-000069

ALLAN JOHN CRAFAR FRANK ROBERT CRAFAR ELIZABETH JEAN CRAFAR Appellants

v

WAIKATO REGIONAL COUNCIL
Respondent

Hearing:	30 July 2010

Appearances: Allan Crafar (Appellant) in person
F Pilditch for Respondent

Judgment:	13 September 2010

(RESERVED) JUDGMENT OF ANDREWS J [Appeal against conviction and sentence]

This judgment is delivered by me on 13 September 2010 at 2:30pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Party:	A J Crafar, F R Crafar and E J Crafar, 452 Goudies Road, Reporoa. Solicitor:	Gordon Pilditch, PO Box 740, Rotorua 3040

CRAFAR And Ors V WAIKATO REGIONAL COUNCIL HC HAM CRI 2009-419-000067 [13 September
2010]

Introduction

[1]       On 20 July 2009, in the District Court at Te Awamutu, Judge Newhook issued a reserved judgment (―the judgment‖) in which he found the appellants Allan Crafar, Frank Crafar, and Elizabeth Crafar (―the Crafars‖) and Hillside Ltd (a company of which all three were directors) guilty of charges laid under the Resource
Management Act 1991 (―the Act‖).   The charges were laid by the respondent, the

Waikato  Regional  Council  (otherwise  known  as  Environment  Waikato)  (―the

Council‖).

[2]       In general, the charges related to the unlawful discharge of dairy effluent at various dates between 11 October 2007 and 1 April 2008.  Messrs Allan and Frank Crafar and Hillside Ltd were each convicted on ten charges.  Mrs Elizabeth Crafar was convicted on four charges.  In respect of the Crafars, the finding of guilt was on the  basis  that  the  Judge  was  satisfied  beyond  reasonable  doubt  that  they  had permitted the various offences to be committed.

[3]       On 28 August 2009 Messrs Allan and Frank Crafar and Hillside Ltd were each fined $29,500.  Mrs Elizabeth Crafar was fined $1,500.

[4]       On 29 September 2009 each of the Crafars and Hillside Ltd filed appeals against conviction and sentence, on the grounds that the District Court Judge was erroneous in law and in fact.   Hillside Ltd is now in receivership.   Its appeal was withdrawn by a letter dated 16 November 2009 from the solicitors for the receivers.

[5]       The issues for determination in respect of the appeals are:

a)	Whether leave should be given for the appeals to be filed out of time;

b)	If leave is granted, whether the Judge made any error of law or fact in reaching his decision to convict the Crafars;  and

c)	Whether the sentences imposed were outside the Judge‘s jurisdiction,
and if within the jurisdiction, whether the sentences were manifestly excessive.

Facts

[6]       At all material times Hillside Ltd owned a dairy farm at 183 Collins Road, near Hamilton (―the farm‖).    Hillside Ltd engaged a sharemilker (Mr Lammas) to operate the farm.  Shortly after beginning the sharemilking contract on 1 June 2007
Mr Lammas contacted the Council in relation to difficulties in managing dairy effluent on the farm.

[7]       In general terms, the effluent system in operation on the farm involved two water tanks at the top of the concrete dairy pad adjacent to the dairy shed being filled with water (or liquid effluent) and the water or liquid effluent being released to wash down the dairy pad.  The ―wash‖ material (containing dairy effluent left on the pad) was to drain into two sumps at the bottom of the dairy pad.   Electrical pumps connected to the sumps were then to pump the raw effluent through pipes to a travelling irrigator, to be used for irrigation and fertilisation of farm paddocks.

[8]       Between 9 July 2007 and 1 April 2008 the Council conducted a number of site inspections at the farm.   Evidence was detected of effluent discharge that breached the applicable provisions of the Waikato Regional Plan (―the Plan‖).   In addition  to  identifying  evidence  of  breaches  of  the  Plan,  the  Council  issued abatement notices to Hillside Ltd and the Crafars, directing that various steps be taken to ensure that the non-compliance and the unlawful discharge of dairy effluent cease.

[9]       There  were  numerous  communications  between  the  Council  and  Messrs

Allan and Frank Crafar, in part enclosing the abatement notices.   From December

2007 communications were also sent to Mrs Elizabeth Crafar.

Charges

[10]     Section 15(1) of the Act prohibits the discharge of contaminants into the environment (that is, into water, or onto or into land in circumstances which may result in the contaminant entering water, or into the air), unless the discharge is expressly allowed by, amongst other things, a rule in a regional plan.

[11]     Under the Waikato Regional Plan the discharge of dairy effluent (which comes within the definition of ―contaminant‖ under s 2 of the Act) is a permitted activity provided it complies with the provisions of Permitted Activity Rule 3.5.5.1. Rule 3.5.5.1 sets out 10 conditions, including (as relevant in this case):

(a)        No  discharge  of  effluent  to  water  shall  occur  from  any  effluent holding facilities.

...

(c)        All effluent treatment or storage facilities (e.g. sumps or ponds) shall be sealed so as to restrict seepage of effluent.  The permeability of the sealing layer shall not exceed 1x10-9 metres per second.

...

(e)        The maximum loading rate of effluent onto any part of the irrigated land shall not exceed 25 millimetres depth per application.

[12]     On 10 April 2008 10 Informations were laid by the Council against each of Hillside Ltd and the Crafars.  The charges against each of the Crafars were identical, and were laid under s 338(1)(a) or (c) of the Act which provide that it is an offence against the Act to contravene, or permit a contravention of, s 15 of the Act, or any abatement notice.

[13]     As laid, each Information alleged that the named defendant ―did contravene s 15(1)(b)‖ of the Act or ―contravened an Abatement Notice‖.   On 17 April 2009 counsel for the Council filed and served a memorandum clarifying the basis of the laying of charges under s 338(1) as being that the named defendant ―permitted the contravention‖ of the Act rather than ―contravened‖ the Act.    At the beginning of the hearing in the District Court the Council applied to amend the Informations against each of the Crafars so as to read ―permitted a contravention of‖ rather than

―did contravene‖.  The intention to apply for the amendment had been signalled in counsel‘s memorandum.

[14]     Having  heard  from  counsel  for  the  Council  and  the  Crafars,  the  Judge allowed the amendments.    A summary of the charges faced by each of the Crafars (based on a summary provided to the Judge at  the start of the hearing and  by
reference to the charges against Allan Crafar) is set out in the following table:

CRN
No.	Date	Charge	Particulars	
891	11.10.07	Permitted  contravention
of s 15(1)(b)	Seepage from unsealed holding pond	
892	11.10. 07	"	Discharge from feed pad and yard to
ground	
893	11.10. 07	"	Overflow   of   effluent   from   second
sump into unsealed holding pond	
894	13.11. 07	"	Discharge  of  effluent  from  broken
irrigator hose	
895	05.12.07–
10.12.07	"	Over-irrigation  of  paddocks  156  and
158	
896	10.12.07–
23.01.08	"	Over-application irrigator to paddock
adjacent to sump	
897	10.12.07–
23.01.08	"	Overflow   of   effluent   from   second
sump onto land	
898	10.12.07	"	Overflow   of   effluent   from   second
sump into unsealed holding pond	
899	01.04.08	"	Over-application  of  irrigator  from  a
coupling	
890	01.04.08	Permitted  contravention
of an Abatement Notice	Breach of abatement notice issued on
1 February 2008	

The District Court decision

[15]	The Judge heard evidence on behalf of the Council and on behalf of Hillside

Ltd and the Crafars over a period of eight days from 18 to 22 May 2009 and 26 to 28

May 2009.  Expert evidence was called for both sides.

[16]     In very general terms, the evidence on behalf of the Council was to the effect that through a combination of factors there was a systemic failure  in managing effluent at the farm in accordance with the Plan, and that the effluent system at the farm was either inadequate to meet the demands placed on it by the number of cows being farmed, or was operated to the limits of its tolerance so that an event such as heavy rainfall could produce unlawful discharges without the ability to contain them. The evidence given on behalf of Hillside Ltd and the Crafars was to the effect that the effluent system was more than adequate, and that fault for the numerous discharges lay with the sharemilker, Mr Lammas.

[17]     At the end of the hearing the Judge directed that written submissions be filed on behalf of the Council, and for Hillside Ltd and the Crafars.  Written submissions were duly filed.  The judgment was delivered on 20 July 2009.

[18]     The Judge outlined the evidence relating to the charges in detail.  In so doing he considered the charges in 10 groups, based on the 10 identical charges that each defendant faced.  The Judge also outlined the expert evidence given at the hearing.

[19]     The Judge considered issues arising in relation to the charges, as follows:

a)	The meaning of ―permits a contravention‖ under s 338(1) of the Act.

The   Judge   found   that   the   concept   of   ―permits‖   was   wide, encompassing providing the opportunity for, allowing, acquiescing, abstaining  from  preventing,  and  tolerating  the  acts  or  omissions leading to contravention.   The Judge held that some knowledge of the acts or omissions was required.  He held that Messrs Allan and Frank Crafar, at least, had extensive knowledge of the alleged breaches but failed to act.

b)	Communications from the Council up to mid-December 2007 had been directed to Hillside Ltd and Messrs Allan and Frank Crafar only.
The Judge held that although Mrs Elizabeth Crafar was also a director

of  Hillside  Ltd  and  might  have  known  of  the  breaches,  this  was insufficient to satisfy the criminal standard.

c)        Hillside Ltd and the Crafars could be liable as principals for the acts of the sharemilker as agent.  The Judge found that the sharemilker was an agent contractor under s 340 of the Act.

d)        The Crafars did not have a defence of ―officially induced error‖ (that is, that there was permission for an unsealed holding pond to be used to store effluent in an emergency).

e)       The onus was on the Council to prove an unlawful discharge in contravention of s 15.  It was then for Hillside Ltd and the Crafars to show on the balance of probabilities that the discharge had occurred lawfully in accordance with r 3.5.5.1 of the Plan.      The Judge held that Hillside Ltd and the Crafars had not proved that the holding pond was sufficiently sealed to the standard in r 3.5.5.1(c).

f)         The Judge referred to evidence given on behalf of Hillside Ltd and the Crafars to the effect that the permeability likely to have been achieved for the holding pond was only 1x10-7 metres per second.

[20]     The Judge dismissed six charges against Mrs Elizabeth Crafar, being charges alleging offending before and up to 10 December 2007.   The Judge found that all of the remaining charges were proved beyond reasonable doubt.    He found that throughout the relevant period, and importantly on the dates of the alleged offences, there was a systemic failure of the effluent system.  He said:

[319]	There  was  on  this  farm  throughout  the  relevant  period,  and importantly on the relevant dates, a systemic failure of the effluent system.

Many factors contributed including (but not limited to) excessive numbers of cows being milked, fed out, and stood-over on the feed pad having regard to the prevailing weather conditions, lack of proper maintenance of the existing water supply system, failure to clean out the sand trap, failure to take care over the volumes and thickness of effluent being directed to the travelling irrigator(s), failure to maintain proper surveillance and control over the irrigator(s), failure to maintain and clean equipment and systems generally, and generally operating the system to the limits of its tolerance or beyond such that there was no back-stop or contingency when problems (inevitably) cropped up.   At the heart of a number of the problems was a sharemilker who was not running and maintaining the system properly on account of a number of shortcomings including lack of skill and experience when under pressure, exacerbated by a traumatic event.

[320]   I have already found against the [Crafars] concerning the legal submissions about ―permitting‖ and agency on the part of the sharemilker. Attempts to place all blame on the sharemilker do not afford a successful defence.  Not only in terms of the expectations of the act on farm owners, but also flowing from the terms of the sharemilking agreement, Hillside Limited and the Crafars having prime responsibility for the management and control of the farm and its operations including management of the herd, with all work performed by the sharemilker to be undertaken in accordance with such reasonable direction and instructions from them as are needed from time to time.

[321]    Mr Lammas  may well have had his shortcomings as a sharemilker, particularly in comparison to his successor ... .   He may also have had inadequate control over his staff resulting in failures of cleaning and maintenance  of  various  parts  of  the  system,  and  even  in  inappropriate disposal of effluent off the edges of the feed pad and the like.   But the [Crafars] have the ultimate duty to manage and control the situation. ...

[21]     In  his  sentencing  decision    the  Judge  considered  the  nature  of  the environment affected, the extent of damage inflicted, the deliberateness of the offence, the attitude of Hillside Ltd and the Crafars, their financial position, and existing criminal record.   With respect to the existing criminal record, the Judge noted that Hillside Ltd is part of a group of companies (known as ―Crafarms‖) owned and operated by the Crafar family.   The Judge‘s attention was drawn to
convictions of companies within the group.

[22]     The Judge referred to three levels of seriousness identified for cases relating to the discharge of effluent in Waikato Regional Council v B G Chick Ltd.   The three levels identified were: level 1 (the least serious), penalty $0-15,000; level 2 (moderately serious), penalty $15,000-30,000; and level 3 (more than moderately serious), penalty $30,000 plus.

[23]     The Judge accepted the submission made on behalf of the Council that he should approach sentencing on a global basis, having regard to the description of level 3 in Waikato Regional Council v B G Chick Ltd, and to the fact that in the present case there was a set of system failures.  The Judge adopted a starting point of
$80,000, then allowed a small discount for the approach taken by the Council in a letter sent to Hillside Ltd and the Crafars on 2 August 2007, but then applied an uplift to take account of aggravating features of the offending and the offenders, to arrive at the fines imposed.

[24]     As mentioned earlier, each of Hillside  Ltd, and Messrs Allan and  Frank Crafar were fined $29,500, and Mrs Elizabeth Crafar was fined $1,500.  The Judge noted that the low level of the fine imposed on Mrs Crafar recognised that she had been convicted on four charges, not ten, and took account of the fact that the severe difficulties on the farm were not brought to her attention by the Council ―until late in the piece‖, and took account of her ―significantly lesser involvement in the management‖.     Nevertheless, the Judge found that Mrs Crafar was ―drawn into responsibility  for  the  continuing  system  failures  after  December  2007,  and
permitting them‖.

Grounds of appeal

[25]     Around the beginning of May 2010 (the document is neither dated nor date- stamped by the Court), the Crafars filed particulars of their appeals.  They identified
11 points of appeal.  These may be summarised as being that the Judge erred in:

a)	finding them guilty in their personal capacity;

b)	holding them criminally liable for the actions of the sharemilker;

c)	finding that there was a systemic failure of the effluent system;

d)	finding that the holding pond was not sealed to the requisite standard;

and

e)        finding that they were guilty of the offences alleged to have been committed on 13 November 2007, when these occurred as a result of a mechanical failure.

[26]    At the beginning of the appeal hearing Mr Allan Crafar (who acted as spokesman for himself, Mr Frank Crafar and Mrs Elizabeth Crafar) presented a written ―synopsis of submissions on appeal‖.   That document purported to present submissions on behalf of Hillside Ltd as well as the Crafars personally.  In large part the written submissions addressed the conviction of Hillside Ltd.  It was pointed out to Mr Crafar that the appeal by Hillside Ltd had been withdrawn, and that the Court could not consider submissions on behalf of the company.

[27]     The written submissions also addressed an issue identified as ―estoppel, or officially induced error‖ and ―conflicting laws between the [Resource Management Act] and Animal Welfare Act 1999‖.    Those matters had not been raised in the Crafars‘ particulars of appeal.   After a short adjournment to consider the written submissions Mr Pilditch, on behalf of the Council, was comfortable to address the issue of the Animal Welfare Act, but was given leave to file written submissions in relation to ―officially induced error‖.  Supplementary submissions were filed on 13
August 2010.

Should the appeal be dismissed for being out of time and not in proper form?

[28]     The Crafars‘ appeals are brought under s 115 of the Summary Proceedings Act 1957, which provides a general right of appeal against conviction and sentence. Pursuant to s 116(1) of the Summary Proceedings Act, the Crafars‘ appeals were required to be filed within 28 days after the day on which they were sentenced.

[29]     The Crafars were sentenced on 28 August 2009.  Accordingly, their appeals should have been filed by Friday 25 September 2009.   Their appeals were in fact filed on 29 September 2009 and were, therefore, four days late.  Under s 123 of the Summary Proceedings Act the Court has power to extend time for filing an appeal
―on the application of the appellant or intending appellant‖.    The Crafars have not

made any application for an extension of time to file their appeals.

[30]     At the appeal hearing Mr Pilditch submitted that leave should not be given for the appeals to be filed out of time.  With reference to the criteria in relation to applications for extension of time set out in Cleggs Limited v Department of Internal Affairs, Mr Pilditch submitted that the Crafars were represented by counsel up until the time the appeals were filed, that they had had ample time to consider an appeal against conviction, and that they could not establish that there is any likelihood that
their appeals would succeed.

[31]     Mr Pilditch also submitted that the notices of appeal did not comply with s 116(1) of the Summary Proceedings Act, which requires the notice to set out the grounds of the appeal.  He submitted that to state that

The decision of His Honour the District Court Judge was erroneous in law and in fact.  The details of the grounds of appeal will be more particularly set out in submissions to be filed in support of the Appeal.

did not comply with s 116(1).     He submitted that s 116(1) requires at least some information as to the grounds of appeal to be set out in the notice of appeal.   Mr Pilditch also submitted that the Crafars had failed to comply with directions of the Court as to the filing of submissions on appeal.

[32]     I have noted above that Mr Allan Crafar appeared at the appeal hearing as spokesman for himself, Mr Frank Crafar and Mrs Elizabeth Crafar. The Court file discloses that the Crafars‘ former solicitors sought leave to withdraw as solicitors on the record on 27 October 2009.  It is also apparent that on 4 February 2010 Messrs
Allan and Frank Crafar advised, at a hearing before Allan J, that they had applied for

legal aid, and that that application was under consideration.   On 24 March 2010

Allan J was advised that no finality had been reached with respect to legal aid.

[33]     I have concluded that the delay of four days in filing the notices of appeal is not sufficient in and of itself to strike out the appeals for being out of time.    Mr Pilditch responsibly accepted that it was appropriate to hear the appeals.

[34]     With  respect  to  the  defect  in  form,  I  note  that  s 120  of  the  Summary

Proceedings Act provides:

On the hearing of any general appeal no objection to any defect in the notice of appeal shall be allowed, unless the High Court is of opinion that the respondent had been substantially prejudiced thereby:

provided that, whether or not any objection is allowed, the Court may direct or allow the notice to be amended on such terms as to costs or otherwise as it thinks fit.

[35]     In this case, Mr Pilditch presented submissions prepared on the basis of the particulars of appeal filed in early May 2010.  Although new matters were raised in the written submissions presented at the appeal hearing, Mr Pilditch was comfortable to respond immediately as to one point (the interaction between the Act and the Animal Welfare Act) and was given time to file submissions on the other (―officially induced  error‖).     Accordingly,  I  cannot  conclude  that  the  Council  has  been
―substantially prejudiced‖ by the defects in the notices of appeal, and failure to file

submissions on appeal.

[36]     Accordingly, leave to appeal is granted.

Approach on appeal

[37]     Pursuant to s 119(1) of the Summary Proceedings Act the appeal is by way of re-hearing.  Pursuant to s 121, the High Court is to hear and determine the appeal. The Court may confirm the conviction, set aside, or amend the conviction and, if the Court thinks fit, quash the sentence imposed and either impose any sentence that the convicting Court could have imposed, or deal with the appellant in any other way that the convicting Court could have.

[38]     In its judgment in Austin, Nichols & Co Inc v Stichting Lodestar, Elias CJ, delivering the judgment of the Court said:

[16]      Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate Court, even where that opinion is an assessment of fact and degree and entails a value judgment.   If the appellate Court‘s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances, it is an error for the High Court to defer to the lower Court‘s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.

(footnotes omitted.)

[39]     In Barry v Police,    Stevens J referred to the paragraph in Austin, Nichols

just cited and observed:

...  According  to  the  Court  of  Appeal  in  Rae  v  International  Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190, an appellate Court should not reverse a factual finding unless compelling grounds were shown for doing so.  However, this may now be regarded as too broadly stated a principle.    The Supreme Court in Austin Nichols was careful to limit the deference advocated in Rae to instances where findings of fact were credibility-dependent. The Court stated at [13] that:

The appeal court must be persuaded that the decision is wrong but in
reaching   that   view   no   ―deference‖   is   required   beyond   the
―customary‖ caution appropriate when seeing the witnesses provides an advantage because credibility is important.

[40]     With those statements as to the approach on appeal in mind, I turn to consider the matters raised on behalf of the appellants.

Should the Crafars have been charged and convicted in their personal capacity?

[41]     The  Crafars  submitted  that  they  should  only  have  been  prosecuted  as directors of Hillside Ltd, and that a conviction against Hillside Ltd should have been entered before charges against any of them, as company directors, could be pursued. They submitted that there was no relevant legal nexus between the appellants and the
farm property on which the offending occurred.

[42]     The  Crafars  submitted  that  while  the  Act  contemplates  charges  against corporate owners and potentially company directors, when offending under s 15 is alleged, the Act also contemplates that a charge under s 15 will be proved against the corporate owner, and a conviction entered, before charges can be pursued against any of the directors of the company.

[43]     Mr Pilditch submitted that the Crafars‘ submissions were misconceived.  He pointed to the statutory basis on which the appellants were charged.  He referred first to the wording of s 15(1)(b):

No person may discharge any ... contaminant...

[44]     Mr  Pilditch  then  referred  to  the  section  under  which  the  Crafars  were charged:  s 338(1) of the Act:

Every  person  commits  an  offence  against  this  Act  who  contravenes,  or permits a contravention of, any of the following:

(a)	sections ... 15 ...

[45]     Mr Pilditch submitted that under s 15 it is an offence if a person actually contravenes s 15, or permits a contravention of s 15, by discharging a contaminant into the environment.  He referred to s 340 of the Act, which provides for principals to be liable for the acts of their agents, and submitted that the Crafars were not charged under s 340; they were charged under s 338(1).

[46]     I accept Mr Pilditch‘s submissions.  There is no requirement under the Act that a director of a company can only be charged with an offence under s 340.  No such limitation is set out in the Act, and none can be read into it.  To the contrary, the wording of s 338 is clear in not limiting its application:

Every   person   commits   an   offence   who   contravenes   or   permits   a contravention of ...

[47]     In McPhail v Durbridge Developments Ltd (in liq), the Auckland Regional
Council applied for leave to continue a criminal prosecution against the company in liquidation.  It was submitted that it was necessary to proceed against the company in

order to  secure  a conviction  against  the director of the company.    Randerson J refused leave, noting that separate Informations had been laid against the director personally under the ―permitting‖ provisions of s 338 of the Act.

[48]     I also accept Mr Pilditch‘s submission that the Crafars cannot appeal against the Council‘s decision to lay charges against them, or its choice of the section of the Act under which charges were laid.

[49]     Accordingly, the Crafars cannot succeed on this ground of appeal.

Should the Judge have found the Crafars guilty when the farm was operated by a sharemilker?

[50]     The Crafars submitted that they should not have been found guilty, because the farm was operated by a sharemilker, Mr Lammas, who, by signing the sharemilking contract,  agreed  that  he  would  operate within  the law,  and  would indemnify the owners against his own malpractice.  They submitted that the Judge‘s finding put all sharemilking contracts at risk.

[51]     The Judge addressed the Crafars‘ arguments on this point in his discussion of

―permitting‖ a contravention   and in his discussion of Hillside Ltd‘s liability for the sharemilker‘s actions.     The Judge held that the notion of ―permitting‖ a contravention required the Council to prove that the Crafars had:

a)	provided or afforded an opportunity for acts or omissions which lead to the contravention;

b)	allowed  acts  or  omissions  to  be  done  or  occur  that  resulted  in contravention;

c)	acquiesced in acts or omissions which resulted in contravention;

d)	abstained	from	preventing	acts	or	omissions	which	led	to contravention;  and

e)	tolerated acts or omissions which led to contravention.

[52]     That interpretation demonstrates that the Judge concluded that some degree of knowledge on the part of the Crafars had to be proved beyond reasonable doubt. To allow, acquiesce, tolerate, or fail to prevent acts or omissions that led to  a contravention of the act required a defendant to have some knowledge that those acts or omissions had occurred, or were occurring.

[53]     With respect to knowledge, the Judge referred to correspondence, including abatement notices, that were sent to Messrs Allan and Frank Crafar and (as from December 2007) to Mrs Elizabeth Crafar.

[54]     The Judge also concluded that it was ―abundantly clear‖ that the Crafars were concerned in the management of the company and that they ―had extensive knowledge  of  the  concerns  of  the  Council  about  actual  and  further  potential breaches‖.   The Judge also noted evidence that Messrs Allan and Frank Crafar had
come to the farm, and had received the various notifications of the Council.

[55]     The  Judge‘s  reasoning  for  dismissing  six  Informations  which  alleged offending up to and including 10 December 2007 against Mrs Elizabeth Crafar was that he was not satisfied to the criminal standard of beyond reasonable doubt that she had received notifications from the Council up to that point.

[56]     Mr Pilditch  submitted  that  the  Judge was  correct  in  relation  both  to  his rulings on the law and his factual assessment.

[57]     I am satisfied that the Crafars cannot succeed on their submission that they should not be criminally liable for the acts or omissions of the sharemilker.  I accept Mr Pilditch‘s submission that the sharemilking agreement has no relevance to the charges against the Crafars personally.   The Crafars‘ criminal liability arose from

their ―permitting‖ the contraventions.  The Judge found that they had the requisite knowledge in order to found liability.   I can find no error in the Judge‘s conclusion. The Crafars cannot succeed on this ground of appeal.

Did the Judge err in finding that there was a systemic failure of the effluent system?

[58]     The Judge found as a fact that there was a systemic failure to manage effluent at the farm.   That finding was based on the evidence given at the hearing, including evidence  by  Council  officers  (in  relation  to  the  particulars  of  the  breaches  of s 15(1)(b)), the sharemilker (Mr Lammas), and an expert witness.  Evidence was also called on behalf of the Crafars by Mr Elmes, who took over as sharemilker from Mr Lammas, and by an expert witness.

[59]     Mr Lammas gave detailed evidence of the difficulties that he experienced with the effluent system in place on the farm.  The Council‘s expert witness referred to ―key problems‖  in the system, such as lack of water for the wash-down system, and lack of contingency in the system.

[60]     The Judge addressed Mr Elmes‘ evidence, describing Mr Elmes as ―clearly very able and experienced‖,  and noting that Mr Elmes had ―met with considerable success‖ on the farm after he took over from Mr Lammas.  Mr Elmes‘ evidence was to the effect that the effluent system was a good one, and that any inability to use it effectively and legally resulted from poor management.   The Judge noted that improvements had been introduced during Mr Elmes‘ tenure of the farm, of which
Mr Lammas had not had the benefit.   The Judge concluded that whether there had

previously been poor management, or whether the improvements were necessary in order for the system to comply with the law and handle the number of cows being milked, in the climatic conditions, having regard to his findings on matters of law,
the shortcomings were ultimately the responsibility of the Crafars.

[61]     I am satisfied that the Judge was correct in his conclusion that whether there was management failure, the contraventions are ultimately the responsibility of the Crafars.   One comes back to the charge against them, under s 338(1) that they
―permitted‖ the contraventions.

[62]     Accordingly, the Crafars cannot succeed on this ground of appeal.

Did the Judge err in finding that the “unsealed holding pond” contravened the
Act?

[63]     As mentioned earlier,  the effluent system at the farm involved water (or a mixture of water and liquid effluent) being released from two tanks at the top of the dairy pad, to wash down effluent into two sumps at the bottom of the dairy pad. Adjacent to the two sumps was a hole (a holding pond) that had been dug into the earth at some earlier stage.

[64]     The Council alleged that effluent had seeped from a bund created around the holding pond to the adjoining paddock, or had overflowed into the holding pond. The charges arose out of the Council investigators‘ observations, and were that effluent in the holding pond may have entered ground water.

[65]     The Judge referred to evidence from Council investigators who had attended at the farm on occasions and observed that effluent had been deposited in this hole, and that the hole was being used as a storage facility or holding pond for the effluent 
that could not be accommodated by the effluent system.

 [66]     Evidence was also given on behalf of the Council by the sharemilker (Mr Lammas), and the Council‘s compliance and enforcement manager.   The latter evidence was as to the water table in the vicinity of the holding pond, and the manager‘s belief that the water table was intersecting the hole.

 [67]     Evidence was given on behalf of the Crafars by two experts, one qualified in soil, waste, and water engineering, the other a soil scientist.  The engineer‘s evidence

was to the effect that in the area of the holding pond the static water table was lower than the bottom of the holding pond.  The soil scientist had visited the area after the holding pond had been filled in.  She assessed the permeability of the holding pond by comparison with that of a newly constructed pond about 100 metres away.

[68]     In each of the charges relating to the holding pond it was alleged that the seepage or overflow from the holding pond ―may result in any other contaminant ... entering water, namely ground water ...‖   The Council‘s evidence was directed at establishing that effluent discharged into the holding pond ―may‖ have resulted in a contaminant entering ground water.  The Council‘s case was that a discharge to the holding pond was prima facie unlawful, because it was a discharge to land, where it was possible that a contaminant (effluent) might enter ground water.

[69]     As mentioned earlier,  it is a defence to the charge if the discharge was

―expressly allowed‖  by, amongst other things, a rule in a Regional Plan.   As the Judge observed, the Council had the onus of proving that the alleged discharges had occurred and that contaminant may have entered ground water.  The burden of proof was then on Hillside Ltd and the Crafars to prove, on the balance of probabilities, that the discharges were permitted by the relevant rule (Rule 3.5.5.1) of the Plan.

[70]     The Judge held that the Council had proved beyond reasonable doubt that effluent had been discharged to the holding pond.  The Judge noted that the relevant condition in order for the discharge to the holding pond to be permitted was that the permeability of the sealing layer ―[should]  not exceed 1 x 10-9  metres per second. The Judge noted ―on the defendants‘ own evidence there was a shortfall against the requirement of the Rule‖.

[71]     The Crafars submitted that the Judge had erred in accepting the Council‘s evidence rather than that of the expert witnesses who gave evidence for the defence. The defence witnesses, they said, ―had visited the site and done suitable tests, unlike the layman [Council] witnesses‖.

[72]     I am satisfied that the Judge was correct in his conclusions as to the onus and standard of proof.    The onus of proof under s15 (1)(b) of the Act was not on the Council to prove that the discharge to the holding pond was not ―expressly allowed‖ by Rule 3.5.5.1 of the Plan.  Rather, pursuant to s 67(8) of the Summary Proceedings Act it was for Hillside Ltd and the Crafars to prove that the discharge was ―expressly allowed‖,  that being an ―exception,  exemption, excuse, or qualification‖.   As with
any onus on defendants, they were required to prove that the discharge to the holding

pond was ―expressly allowed‖ to the standard of the balance of probabilities.

[73]     Further, I am not satisfied that in concluding  that the Council had proved beyond reasonable doubt that the alleged discharge had occurred, and that Hillside Ltd and the Crafars had failed to prove beyond reasonable doubt that the discharge was ―expressly allowed‖, the Judge made any error in his assessment of the evidence and conclusions in relation to that evidence.

[74]     The Crafars cannot succeed on this ground of appeal.

Did the Judge err in finding Messrs Allan and Frank Crafar guilty in relation to the discharge of effluent from a broken irrigator hose?

[75]     These charges related to a site inspection conducted on 13 November 2007.

[76]     The Judge noted that a Council Resource Officer had observed two tracks of farm effluent flowing across the surface of a paddock towards a farm drain.   The tracks covered an area of about 10 x 30 metres.   This was in the vicinity of a travelling irrigator and the officer observed that the irrigator‘s hose coupling had been disconnected at some stage.  The officer found discoloured water from the farm drain was mixing with clean water in another drain.  Samples were taken from the
farm drain, upstream and downstream of where the track of effluent entered.

[77]     Both  the  upstream  and  downstream  samples  were  found  on  analysis  to contain high concentrations of effluent.  On the basis of photographs of the effluent tracks and the depth of sludge observed, evidence was given that liquid effluent had been applied to the paddock substantially in excess of the limited of 25 millimetres permitted under Rule 3.5.5.1 of the Plan.

[78]     The sharemilker (Mr Lammas) said in evidence that on the day this occurred he and his staff realised after milking that the irrigator was not moving.  They found that ―a joiner had popped‖  and rejoined it straightaway.  He acknowledged that no steps were taken to clean up the effluent that was heading down into the drain, as they were ―pretty busy‖.

[79]     The Judge concluded on the basis of the Council officer‘s evidence,  the laboratory analysis, the analysis of photographs of the spill, and the analysis of the effluent, that he was satisfied that the Council had proved that liquid effluent had been applied onto land substantially in excess of the allowable depth of 25 millimetres.    The Judge  also  concluded that  the sharemilker‘s evidence did  not
establish a successful defence.

[80]     The Crafars submitted that the evidence established only that there had been a mechanical breakdown on the day, and that it had been fixed promptly.   They submitted that no evidence was produced that this was a regular occurrence on the farm.   They also submitted that the upstream and downstream samples made ―a mockery‖  of  the  charges.    They  submitted  that  the  high  contamination  in  the
―upstream‖  sample showed that the contaminant had come from a neighbouring farm.

[81]     Mr Pilditch submitted that if the Crafars had wished to rely on a ―mechanical breakdown on the day‖ as a defence to these charges, they were required to meet the three conditions set out in s 341(2)(b) of the Act which provides that:

... it is a defence to [a prosecution under s 15] if the defendant proves — ...

(b)        that the action or event to which the prosecution relates was due to an event beyond the control of the defendant, including natural disaster, mechanical failure, or sabotage, and in each case —

(i)	the action or event could not reasonably have been foreseen or been provided against by the defendant; and

(ii)	the effects of the action or event were adequately mitigated or remedied by the defendant after it occurred.

[82]     Mr Pilditch submitted that no evidence was given on behalf of Hillside Ltd or the Crafars of any steps taken to adequately mitigate or remedy the effects of the event after it occurred.

[83]     I accept that the Judge was not in error in finding that these charges were proved.  There was no evidence given of any steps taken to mitigate or remedy the spill caused by the broken irrigator hose.  In fact, the evidence before the Judge was to the contrary: no steps were taken to mitigate or remedy the spill.

[84]     Nor  is  there  anything  in  the  Crafar‘s  criticism  of  the  evidence  as  to contaminant levels in the drain.   The evidence was that there were high levels of contaminant both upstream and downstream.  I accept Mr Pilditch‘s submission that this observation does not detract from the evidence given by the Council officer as to his observation of contaminant having entered the drain, on the day.

[85]     The Crafars cannot succeed on this ground of appeal.

Is there a conflict between the Act and the Animal Welfare Act 1999?

[86]     In the written submissions presented by Mr Crafar at the appeal hearing it was submitted that the abatement notices were unenforceable.  It was submitted that the first abatement notice was served on 1 February 2006, the last on 2 August 2007, and alleged overflows of waste storage tanks adjacent to the milking shed.

[87]     It was submitted that on service of the abatement notices the Crafars had two choices:

a)        take the notices as saying that the building consents originally issued for the milking shed and effluent system were wrong and that the milking shed and effluent system had to be changed, a process that would take at least 12-18 months;  or

b)	stop milking the cows.

[88]     The Crafars submitted that it was unreasonable to issue an abatement notice and then begin a prosecution within ―such a short time‖.   It was also submitted that stopping milking of the cows would have left the Crafars liable to prosecution under ss 4  and  28  of the Animal  Welfare Act,  which  makes  it  an  offence  to  ill-treat animals.  It was submitted that, in the circumstances, it would be unjust and unfair to maintain the convictions.

[89]     Evidence was given in the District Court that two abatement notices were issued to Hillside Ltd and Messrs Allan and Frank Crafar in July 2007, a further abatement notice was issued to Hillside Ltd and the Crafars on 12 December 2007, and a fourth abatement notice was issued to Hillside Ltd and the Crafars on 1
February 2008.

[90]     The only abatement notice which led to charges was that dated 1 February

2008.  That notice directed the cessation of the unlawful discharge of contaminant, namely farm animal effluent, to land.  The reasons for the notice, as set out in the Notice, included reference to various site inspections carried by Council officers since 9 July 2007.

[91]    Evidence was given in the District Court that when the Council officer conducted a site inspection on 1 April 2008 to check compliance with the abatement notice issued on 1 February she found some improvements.   In particular, a new concrete bund had been made around the sump area and sand trap.   However, the concrete bund and sand trap were covered in effluent.  While the effluent was not overflowing at the time, it appeared to be at its full capacity, and the Council officer was concerned that if there had been a heavy rainfall, there would have been an

overflow.   The officer followed a hose leading from the concrete area through a shallow drain.  She found green murky water in the base of the drain.

[92]     The Judge found the charge of breaching the abatement notice proved.  In so doing the Judge observed that there was an absence of any or adequate defence evidence to establish any available defence.

[93]   Mr Pilditch submitted that the Crafars‘ submissions on this point were misconceived.  First, he submitted that Hillside Ltd and the Crafars had been given ample opportunity to comply with the abatement notices.   They had not been prosecuted without having been given that opportunity.  Secondly, he submitted that the Crafars had responsibilities under both the Act and the Animal Welfare Act.  He pointed to the defence available under s 341(2)(a) of the Act which provides:

... it is a defence to prosecution [under s 15], if the defendant proves —

(a)	that —

(i)        the action or event to which the prosecution relates was necessary for the purposes of saving or protecting life or health, or preventing serious damage to property or avoiding an actual or likely adverse effect on the environment; and

(ii)     the conduct of the defendant was reasonable in the circumstances; and

(iii)      the effects of the action or event were adequately mitigated or remedied by the defendant after it occurred;

...

[94]     Mr Pilditch submitted that if the matter of the Crafars‘ responsibilities under the Animal Welfare Act had been raised as a defence in the District Court they would have had to call or give evidence addressing the requirements of s 341(2)(a). The matter was not raised, and no such evidence was given.

[95]     I  accept  Mr  Pilditch‘s  submissions.    This  ground  of  appeal  cannot  be sustained.  It was not raised in the District Court and nothing has been put before this Court that would suggest that there was a defence available to the Crafars either on

the basis of a lack of opportunity to comply with the abatement notices, or in relation to the Animal Welfare Act.

[96]     This ground of appeal cannot succeed.

Do the Crafars have a defence of “officially induced error”?

[97]     In  the  written  submissions  presented  at  the  appeal  hearing  the  Crafars submitted that they could rely on ―the doctrine of officially induced error‖ as a defence  to  the  charges  alleging  discharge  of  effluent  into  the  unsealed  holding pond.   The relevant offence dates were 11 October 2007 and 10 December 2007.

[98]     The Crafars based this submission on the following:

a)	Abatement notices were issued on 17 July 2007.  One of the notices

(Numbered 1199990) required Hillside Ltd to:

(iv)       ... immediately cease discharging effluent into the unsealed pond adjacent to the two concrete sealed sumps positioned adjacent the northern edge of the feed pad and dairy shed yards.

b)	During a site inspection on 30 July 2007 the sharemilker was advised

by Council officers that the pond ―would be okay in the interim‖.

c)	A letter sent by the Council to Hillside Ltd dated 2 August 2007 stated that:

...  as  a  result  of  this  site  inspection  please  be  advised  the
Environment Waikato agrees that abatement Notice (Document No.
1199990) has been largely complied with.

... the unsealed pond has been drained.  It has been agreed that this pond can remain in place.  It is not to be used as storage capacity but can act as an emergency storage facility in the event that a problem is encountered.    If such an emergency is encountered then Environment Waikato should be immediately notified.

[99]     The Crafars submitted that the letter of 2 August 2007 provided permission, albeit limited, for the use of the pond to store effluent in an emergency.  They also

submitted that a Council officer had agreed in the course of giving evidence that a breakdown in the pump, or a blockage in the pipe, may constitute an emergency breakdown or emergency situation, and that the Council officer had agreed in evidence that she had been told by the sharemilker during her site inspection on 11
October 2007 (when she observed effluent overflowing into the holding pond) that

there was a blockage he could not locate, and that that was an ―emergency situation‖.

[100]   The Crafars referred to a further site inspection on 10 December 2007, after which a further abatement notice was issued, which required Hillside Ltd to cease:

1.	The discharge of a contaminant, namely farm animal effluent, into the unsealed holding pond situated next to the dairy shed sumps.

2.	The use of the unsealed holding pond as a farm animal effluent storage facility.

[101]   The Crafars submitted that from 2 August 2007 to 12 December 2007 the Council had given permission for the holding pond to be used as an emergency storage facility, and that permission was revoked by the abatement notice issued on
12 December 2007.  They submitted that it would be unjust for them to be convicted for discharging to the unsealed holding pond during the period when the Council had given written permission to use the pond as an emergency storage facility.   Any discharges during that period, they submitted, resulted from an ―officially induced error‖.

[102] The written submissions referred to instances of New Zealand Courts considering a possible defence of ―officially induced error‖.  Those authorities will be referred to later.

[103]   In his supplementary written submissions Mr Pilditch submitted that the New

Zealand  authorities  do  not  establish  the  existence  of  a  substantive  defence  of

―officially induced error‖ in New Zealand, and that such a defence could be incompatible  with  the  scheme  of  statutory offences  under  the  Act.    He  further submitted that even if there is such a defence, the Crafars could not avail themselves of it in this case.

[104]   The New Zealand authorities have referred to the judgment of the Supreme Court of Canada in R v MacDougall.     In that case a driver‘s licence had been revoked following the dismissal of his appeal, but the driver had not yet received the revocation order when he was stopped while driving and asked to present his licence. He was charged with driving while disqualified.   The trial  Judge dismissed the charge  and  the  dismissal  was  upheld  by the  Court  of Appeal  for  Nova Scotia.
However,  the  Supreme  Court  of  Canada  allowed  an  appeal  from  the  Court  of

Appeal.

[105]   The trial Judge accepted that the driver might reasonably have expected to have been told that his appeal had been dismissed (so that he would know that he was disqualified from driving).   The Court of Appeal (in the words of Ritchie J, delivering the judgment of the Supreme Court) ―introduced a new concept in the law of mistake‖, finding that the facts found at trial had given rise to a defence of justification based on the driver‘s reliance on a previous course of conduct on the part of the relevant authorities, and that such a defence might be classified as officially induced error or perhaps a form of colour of right.

[106]   The Supreme Court said:

It is not difficult to envisage a situation in which an offence could be committed under mistake of law arising because of, and therefore induced by, ‗officially induced error‘, and if there was evidence in the present case to support such a situation existing it might well be an appropriate vehicle for applying the reasoning adopted by [the Court of Appeal].   In the present case, however, there is no evidence that the accused was misled by an error on the part of the Registrar. ...

[107]   The Supreme Court also held that, in any event, the driver‘s mistake was one

of law, which did not afford him a defence.

[108]   A possible defence of ―officially induced error‖ has been discussed in New
Zealand, but neither the Crafars nor Mr Pilditch referred me to any case in which it has actually been applied.

[109]   In Tipple v Police, Holland J said:

In a case in New Zealand of ‗officially induced error‘ resulting in a person committing a crime believing it on that ground to be lawful I have little difficulty in finding that it is in the public interest as being just, that a person or a company should not be held liable for acting in accord with practices specifically approved by the police.

However, Holland J did not formally recognise the doctrine as applicable to New Zealand law, because discharge without conviction pursuant to s 19 of the Criminal Justice Act 1985 (as applied at that time) was an available option which achieved justice.  Accordingly Holland J concluded:

I do not consider that there is any need in this case to introduce into New
Zealand law any doctrine of officially induced error.

[110]   In his judgment in R v Goldstone, Williams J stated:

The status of this doctrine in New Zealand law is, to put it at its highest, uncertain.

[111]   Heath  J  briefly considered  the  doctrine  in  his  judgment  in  Sutherland  v Department  of  Conservation.      Heath  J  declined  to  rule on  the legality of the defence in New Zealand, and observed that if such a defence did exist, it did not apply in that case.

[112]   In  Macrae  v  Buller  District  Council,   Chisholm  J  discussed  a  claimed defence  of  officially induced  error,  in  relation  to  a  conviction  for  carrying  out building work without obtaining a building consent.  The appellant had alleged that the Council‘s inspector had encouraged or favoured the work to be done, without any explicit demand for consents to be obtained.  Chisholm J referred to the judgment in Tipple v Police and on the basis of assuming (but without deciding) that officially induced error is capable of providing a defence in New Zealand, considered whether it could apply in the circumstances of the case before him.   He concluded that it
could not.

[113]   In Diriye v Police, Baragwanath J referred to ―officially induced error‖.  He did not comment further on the topic, as justice could be done by a discharge under s 106 of the Sentencing Act 2002.

[114]   In Wilson v Auckland City Council,  Venning J considered a submission as to ―officially induced error‖ in relation to a conviction under the Building Act 1991. The appellant had submitted that he started building work at his property without a resource consent because he believed he was entitled to do so, as the Council had allowed owners of properties within his neighbourhood to carry out building works without resource   consent, and had not prosecuted them.   Venning J cited the judgments in Tipple v Police and Diriye v Police and concluded:

[34]      For  present  purposes  I  am  prepared  to  accept  that  there  is  an argument that the doctrine of officially induced error could apply in New Zealand.   At the very least it could apply to support a discharge without conviction under s 106 of the Sentencing Act.  There must, however, be a factual basis for the doctrine to apply.

His Honour held that there was no factual basis for the submission of ―officially induced error‖ in the case before him.

[115] Having reviewed the authorities referred to me, I accept Mr Pilditch‘s submission that the authorities do not establish the existence of a substantive defence of ―officially induced error‖ in New Zealand at this stage.  At its highest, all that can be said is that ―officially induced error‖ may support an application for discharge without  conviction  under  s 106  of  the  Sentencing  Act  2002.    This  being  an application made by a person who has either pleaded guilty to, or been found guilty of, a crime, both the legal and evidential burden would rest on the application to establish that a discharge should be granted.

[116]   In any event, I also accept Mr Pilditch‘s submission that ―officially induced error‖  could  not  be  used,  in  the  present  case,  to  support  a  discharge  without conviction under s 106.   This is because the limited circumstances  as to which
permission was given for the holding pond to be used, as set out in the Council‘s

letter of 2 August 2007, were not complied with.  The letter is clear on its face that the pond was ―not to be used as a storage capacity‖ and went on to say that the pond could ―act as an emergency storage facility‖ if:

a)	a problem was encountered;  and

b)	if  such  an  emergency  was  encountered,  the  Council  was  to  be immediately notified.

[117]   I accept Mr Pilditch‘s submission that there is no evidence, at all, that the condition that the Council be immediately notified was complied with.  That, in and of itself, is sufficient to defeat any reliance (if such is available) on ―officially induced error‖.

[118]   I also accept Mr Pilditch‘s submission that there is no evidence to suggest that the discharge on 10 December 2007 was in any way an ―emergency‖, or that it was reported to the Council immediately.   Accordingly, as neither of the express conditions of the letter of 2 August 2007 had been complied with, the Crafars cannot sustain a defence of ―officially induced error‖ (again, if such is available).

[119]   The Crafars cannot succeed on this ground of appeal.

Conclusion: appeals against conviction

[120]   I have found that the Crafars cannot succeed on any of the grounds of their appeals against conviction.   Accordingly, the appeals against conviction are dismissed.

Appeal against sentence

[121]   Mr Allan Crafar submitted that he and Mr Frank Crafar had effectively been fined $2,950 on each of the ten charges on which they were convicted.  They were fined $29,500 on a global basis.   He submitted that Mrs Elizabeth Crafar had effectively been fined $350 on each of the four charges on which she was convicted (she was fined $1,500 on a global basis).   Mr Crafar submitted that, in particular

with respect to the fines imposed on himself and Mr Frank Crafar, the fines were manifestly excessive.

[122]   Mr Crafar also submitted that he understood that there was an appeal before the Court of Appeal in which it was being submitted that there is a jurisdictional limit in that an individual cannot be fined more than $750 on a charge laid under the Act.  He was not able to give any further detail.

[123]   Mr  Pilditch  submitted  that  the  fines  were  not  manifestly excessive.    He submitted that it must be borne in mind that the Crafars were convicted on charges laid under s 338(1) of the Act.  Section 339(1) provided (at the time of the offending) that  on  conviction  on  a  charge  under  s  338(1)  the  Crafars  were  liable  to imprisonment for up to two years or a fine of up to $200,000, on each charge.

[124]   Mr Pilditch submitted that the total fines imposed against each of Hillside Ltd and the Crafars ($90,000) was less than half of the fine that could have been imposed on one of them, individually, on each charge on which they were convicted.   He submitted that the fines imposed were well within the range set out in  Waikato
Regional Council v B G Chick Ltd.

[125]   Mr Pilditch also submitted that the offending by Messrs Allan and Frank

Crafar was in the upper range of level 2 (―moderately serious‖) of which a fine of

$15,000 to $30,000 is appropriate for each charge, or at level 3 (―more than moderately serious‖) for which a fine of more than $30,000 is appropriate.  He also submitted that there were aggravating factors present, in particular the convictions against other farms in the ―Crafarms‖ group.

[126]  I am not satisfied that the fines imposed by the Judge were manifestly excessive, or not within the range described in Waikato Regional Council v B G Chick Ltd.  The individual fines effectively imposed on each of Messrs Allan and Frank Crafar for each charge ($2,950) can only be described as being at the lowest end  for  ―level 1‖  offending.    They  can  in  no  way  be  described  as  manifestly
excessive.   If Hillside Ltd and Messrs Allan and Frank Crafar are considered as a

―single entity‖ (which of course they are not) then the fine effectively imposed for each of the ten charges ($8,850) is still only just above half that suggested for level 2 offending.  If all of the charges on which each of Messrs Allan and Frank Crafar are considered as a ―single charge‖ (which, again, they are not) then the fine imposed on each of Messrs Allan and Frank Crafar is within the fine identified as appropriate for
―level 2/level 3‖ offending.  However the fines are regarded, they cannot be regarded

as manifestly excessive or outside the permissible range.

[127]   Mr Pilditch was able to shed some light on Mr Allan Crafar‘s reference to a hearing in the Court of Appeal.  He advised that an appeal is to be heard at the end of this month, in relation to the commencement of prosecutions by way of Information and Infringement Notice.   I accept Mr Pilditch‘s submission that I should approach this appeal on the basis of what is before the Court today.  The possible outcome of a matter yet to be heard before the Court of Appeal is not relevant to my consideration. I am satisfied that the Judge had jurisdiction to impose the fines he imposed.

[128]   I have concluded that the Crafars cannot succeed on their appeal against sentence.

Result

[129]   Leave to appeal is given.  The appeals by Mr Allan Crafar, Mr Frank Crafar, and Mrs Elizabeth Crafar against conviction and sentence are all dismissed.

Andrews  J