Land developer quits job, abandons discharge application: convicted

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Developer Yannis Kokkosis has been convicted and ordered to do 50 hours community work after abandoning an earlier application to be discharged over an offence for shifting contaminated soil in breach of the Resource Management Act.

Kokkosis, 34, and his company Gypsy Investments Limited (GIL) — of which he is the sole director — were each found guilty of one charge after a judge-alone trial in Gisborne District Court earlier this year. The charge arose out of what Judge Brian Dwyer described as Kokkosis’ eagerness to build three houses on land behind his existing rental property at 42 McDonald Street.

On October 31, 2020, Kokkosis removed to Jukes Landfill soil contaminated with arsenic and lead and in doing so,ignored advice he had commissioned from Land Development and Engineering Limited (LDE) that he shouldn’t disturb the soil without a resource consent and remedial plan.

Soil sampling tests by LDE had shown hotspots where arsenic levels were 11 times higher than the residential guidelines value under the NES; and lead levels were six times higher. The contamination was likely due to old horticultural buildings that once stood on the land.

When Kokkosis later told LDE he’d got rid of the soil without following its advice, the company reported its concern to Gisborne District Council, triggering a prosecution.

Kokkosis and the company were to have been sentenced on August 30, this year. Judge Dwyer fined GIL $20,000 for its part in the offending but adjourned completion of Kokkosis’ sentencing until last Friday, to give him a chance to bolster an application for a discharge without conviction.

The judge said he would be minded to grant it if Kokkosis could prove there was a reasonable likelihood the conviction would see him lose his current job working for Switched On Housing, which was contracted to do work on Kainga Ora properties.  In his view, that would meet the legal test of being out of all proportion to the gravity of the offence, the judge said. He didn’t have enough information at that stage to decide one way or another.

At the resumed sentencing hearing on Friday, counsel Adam Simperingham said the discharge application had been abandoned because Kokkosis had quit his job (effective as of October 6) due to publicity arising out of the trial that had already damaged his employer company’s reputation and because of “adverse comment” he had been subject to in his workplace.

Judge Dwyer said those consequences were “unfortunate and unwarranted” given his findings in the case: “that although the defendants removed contaminated soil from the property without resource consent as they had been advised was needed, they were not responsible for the contaminated soil being there in the first place and as part of the removal process, they remediated the limited area of contamination”.

Mr Simperingham said Kokkosis’ currently unemployed status meant he was unable to pay the $10,000 fine the judge previously signalled would be imposed if the application to be discharged was unsuccessful. A sum of $6000 that Mr Simperingham was previously holding on Kokkosis’ behalf to go towards the fine had been returned to him because he needed it.

Kokkosis previously told the court he was still paying off a student debt of $121,000 and legal bills totalling in excess of $58,000.

However, Judge Dwyer said he didn’t have sufficient information to assess Kokkosis’ financial capacity to pay a fine — that assessment dependent on many factors. He accepted Mr Simperingham’s submissions that although fines were the most common penalty in RMA offending, the court must still have regard for the full range of sentencing options allowed in any case.  Community work would be an appropriate alternative.

Council prosecutor Adam Hopkinson submitted the work sentence should be 200 hours but Judge Dwyer said that was too much,  equating to about half of the maximum penalty that could be imposed. Neither was it consistent with his assessment of where the seriousness of the offending lay.

In this case what needed to be penalised was the potential harm to the Gisborne community brought about by disturbing contaminated soil other than as approved by resource consent, the judge said. The seriousness of the offending was mitigated by the limited proven extent of the contamination, the short period of the disturbance works, and the remediation undertaken.

In the case of GIL, those factors were recognised by the lower-end fine imposed.

Maximum fines available were up to $600,000 for companies and up to $300,000 for individuals.

The judge noted that with Kokkosis’ machine operating skills, he would no doubt be able to give back to the community, via the work sentence, in a meaningful way.

The houses have since been completed and the land fully remediated through a retrospective consent process.