Rotorua Lakes Council pleaded guilty to discharging a dangerous substance from the city's dump. Photo / NZME
A judge says the Rotorua Lakes Council is trying to minimise its offending in relation to the discharge of a dangerous substance from the city's dump - and he says he has a feeling there is little remorse.
Rotorua District Court Judge Jeff Smith is to decide the punishment of Rotorua Lakes Council after it admitted a charge of discharging a dangerous substance from the city's dump.
The council says the effects of its offending have been overemphasised. It says there is no evidence to suggest it caused "measurable adverse effects" on the environment and claims to the contrary are "wrong and misleading".
Judge Smith, who is yet to deliver his final decision, made the comments during the second day of a sentencing hearing today.
Rotorua District Council earlier pleaded guilty to a charge brought by the Bay of Plenty Regional Council under the Resource Management Act of discharging a contaminant, namely stormwater contaminated with leachate, on to or into land in circumstances where it may enter water.
The leachate - which was described in court documents as having a bacteria equivalent to that of raw sewage - came from the city's dump site and, in a diluted state, entered Tureporepo Stream, which flows into the Puarenga Stream and Lake Rotorua.
Puarenga Stream flows through famous tourist attractions at Te Puia and Whakarewarewa Village, where penny divers dive for coins tossed off a bridge by tourists.
The charge relates to offending on April 6, 2017, and the council faces a maximum fine of $600,000. Judge Smith has hinted that he may impose a smaller fine but will order reparation, perhaps between $80,000 and $100,000, which would be used to set up a kaitiaki trust consisting of members of tangata whenua who have been impacted as a result of the offending.
He said the three mana whenua who read victim impact statements to the court on the first day of the hearing - Wally Lee, Peter Staite and Helen Beckett - could be appointed trustees.
The court heard there was already a group set up by the council to restore Puarenga Stream but Judge Smith said he preferred a new trust be set up independent of the council, as mana whenua understandably had "trust issues". The regional council and the district council could have one member appointed to the trust each.
The council has applied for a discharge without conviction, which Judge Smith is considering as part of his sentencing.
Judge Smith heard submissions from the Crown last week and the sentencing was adjourned part-heard until today, when the council's lawyer, Fraser Wood, presented his submissions.
Judge Smith said he tried to understand Wood's arguments but repeatedly said he was having difficulty as the way they had been presented could "arguably be said to minimise the offending".
He said despite council Te Arawa partnership deputy chief executive Gina Rangi giving a "fulsome apology" to tangata whenua at a restorative justice hearing, victims who had been sitting in the court during the hearing had heard what appeared to be "little remorse".
"I suspect they (tangata whenua) are dismayed that they get an apology then there is not very much falling on the sword before the court. I've got to say I have a feeling there is little remorse by the council and more exculpatory statements than there is any real recognition of the impact their offending has had."
The council, which was convicted and fined $24,000 for three offences relating to the landfill in 1998, was found by regional council inspectors to be discharging leachate on several occasions between 1999 and 2016.
During that period the regional council issued two abatement notices and gave a final prosecution warning. It was eventually charged in 2017.
It has been the council's submission, via lawyer Fraser Wood, that the court needed to sentence the council for the one specific discharge it had pleaded guilty to, which happened on the same day as the Edgecumbe flood when there had been a 30-day record rainfall in Rotorua that was "unprecedented and unpredicted".
Wood submitted that any stormwater contaminated by leachate would have been significantly diluted due to the volume of rainwater and the saturated receiving environment.
He said there was no evidence of the discharge being toxic or having an adverse impact on the receiving environment.
"I accept that discharges will have a cumulative effect but there has got to be a distinction between discharge of large volumes of contaminated effluent, sewage or whatever compared to small discharges. It's a matter of scale."
However, Judge Smith disagreed with Wood's submission that if it's diluted it would have less impact as all unlawful discharges into waterways were diluted.
There was some back and forth between Judge Smith and Wood on this issue before Judge Smith eventually said: "We have been around the mulberry bush long enough, let's move on".
Judge Smith said the actual offence was the leachate was discharged onto land but in this case it also went into the waterways. The immediate effect on the environment was minimal but it has a long-term cumulative effect.
On the day of the charge there were photographs showing the leachate flowing but it was not known how much was flowing into the water and what impact that had on the environment.
"I've described it as death by a thousand cuts," Judge Smith said.
"The effects long term are difficult to identify and have to be described as minimal but they are nevertheless cumulative."
Crown prosecutor Anna McConachy described it as "systemic offending" and said the summary of facts spoke for itself.
She said there were numerous discharges since 1999 and the council chose not to implement any recommendations to remedy the situation set out in a report by Tonkin & Taylor.
"Time and time again the council was put on notice and I accept they took some steps but they were not successful. The Crown is entitled to say nothing was done to remedy the issue."
While Wood described the regional council's prosecution as "flawed", given four of the charges were dismissed, McConachy said the council could have pleaded guilty at any time to this charge.
She said Wood had overstated the extraordinary level of the rainfall because although it happened at the same time as the Edgecumbe flood, Rotorua didn't receive as much rain and therefore Wood had "over-pitched" its impact.
Judge Smith said he would deliver his sentence within a month but urged the parties to start having talks to set up the trust in the meantime.
Credence Malcolm and another man who can't be named say they didn't murder Korrey Whyman.