Cassandra Kidd and her partner and recidivist environmental offender Ken McIntyre, of Morrinsville, pictured in January 2016. The pair were sentenced in court today. Photo / Supplied
Cassandra Kidd and her partner and recidivist environmental offender Ken McIntyre, of Morrinsville, pictured in January 2016. The pair were sentenced in court today. Photo / Supplied
A Waikato farmer who has numerous convictions for environmental offending has managed to avoid a jail term for organising, and profiting from, the dumping of dairy waste on to his farm.
Morrinsville's Kenneth Julian McIntyre's dairy discharge byproduct dumping scheme was so lucrative, that he even went to the extent of organising a contractor to dig out a section of a stream on his Hutchinson Rd farm that ran to the nearby Piako River.
His partner and manager of the farm, Cassandra Marie Kidd, was convicted and discharged on two charges by Judge David Kirkpatrick in the Hamilton District Court yesterday.
The pair have now been ordered by the judge to clean up their mess at their own cost.
McIntyre has previously been warned and convicted over offending against the environment including in 2015 when he was fined $128,000 and banned from certain roles for unlawfully discharging effluent and having excessive stock numbers at Kaimai Pork.
And despite a current enforcement order being in place, the Waikato Regional Council laid 14 charges for offending from four years ago which he took to trial.
A jury ultimately found him guilty of 13 charges under the Resource Management Act.
Ten of the charges relate to the discharge of contaminants into the ground where they may enter water; seven times in May 2018, and three in September of the same year.
Stored waste in a disused piggery building awaiting disposal on Kenneth McIntyre's farm. Photo / WRC
He was also convicted of three charges relating to the contravention of an enforcement order, twice in May 2018 and once in September.
One charge also relates to the excavation of a river bed on May 10, 2018, which Judge David Kirkpatrick described as a "misguided and unconsented attempt to control the flow of the waste".
Kidd, the farm manager, admitted one representative charge of discharging or permitting discharge of containment, namely dairy manufacturing product, on land where it may enter water between 3 and 20 May, 2018, and discharging dairy manufacturing byproduct on to land where it may enter water on or about 20 September 2018.
Despite denying any involvement in the organisation of the dumping - believing others were instead just as culpable - McIntyre was found guilty of obtaining a contract through Open Country Dairy to dump their waste on his farm.
"In my judgment the gravity of offending was high ... the potential for significant adverse effects on the environment is high.
"Dumping industrial waste on farmland with little or no preparation ... to manage the effects of the dumping will have significant adverse effects on the land and on any waters that the waste may reach, either through groundwater or in this case the stream running through the property to the Piako River.
"He was directly involved in a contractual arrangement to take the waste and to deposit it on the farm. He was subsequently directly involved in getting a contractor to excavate the stream in a misguided and unconsented attempt to control the flow of the waste."
Judge Kirkpatrick noted that prison sentences for offences under the Resource Management Act "are relatively unusual", but it was what the Waikato Regional Council was pushing for - and he didn't disagree.
Kenneth McIntyre and Cassandra Kidd's property on Hutchinson Rd, Morrinsville. Photo / Google
He said the submission was "based on good ground and would serve the purpose of accountability to the community, denunciation of the conduct and deterrent, both to McIntyre and to others."
However, he said he also had to take into account the promotion of responsibility, provision of reparation for the harm done, and assistance in rehabilitation and reintegration.
Instead of seeing him behind bars, Judge Kirkpatrick wanted him to be able to clean up the mess he had created and help fund its disposal.
"A sentence of imprisonment would take McIntyre away from the farm, and prevent him from doing any work to address his offending.
"While surely punitive for McIntyre it would not enable him to do anything positive to the environment, both natural and developed. I doubt that a sentence of imprisonment would allow McIntyre to face his responsibility, assist in cleaning up the farm, enable him to comply with the enforcement order or otherwise devote appropriate accord to Ms Kidd and his family.
"I consider that home detention would serve those purposes better."
He took a starting point of four months before adding a one month uplift for his previous offending history, lack of remorse and his attempts to blame others.
As for Kidd, the judge said it was noted that her role as farm manager was essentially a way of getting around a previous enforcement order that had been made against McIntyre and, perhaps, to shield him from the consequences of his actions.
She unsuccessfully sought a discharge without conviction, with Judge Kirkpatrick determining her level of offending was in the "upper range of moderate to serious" but he accepted that McIntyre was the primary offender.
There was no suggestion that Kidd was operating in her role as farm manager under duress, he said.
"Ms Kidd willingly took on the role on paper as farm manager around 10 September 2015."
He said her future employers "had a right to know about her offending" and there was no evidence from the defence that future income options would be restricted by a conviction.
The council successfully submitted that a conviction "properly reflects culpability of being a farm manager on a farm which had serious effluent management issues, even affecting the role and influence McIntyre had over the operation."
Environmental offending was serious and to discharge a person would render the criminal law system ineffective, the council submitted.
The judge said any limiting of future income options was regrettable but "a consequence of the prosecution process".
"Ms Kidd has not identified a personal repercussion which would be disproportionate to the seriousness of the offence.
"It was clear from Kidd's evidence at trial that she was not actually in charge of these matters but was doing her best to keep the farm operating while also tending to the needs of her and Mr McIntyre's children and Mr McIntyre's father.
"She did not get any direct benefit from the waste operation, receiving no income as manager."
He instead convicted and discharged Kidd on her charges, finding that McIntyre would receive a significant sentence as he was the lead offender, along with her limited financial capacity.
He also issued an enforcement order against Kidd but said she could continue working as a dairy farmer with "certain limits", including not to receive any further waste.
He ordered Kidd and McIntyre jointly remove the waste on the property and how that was done would need to be decided between them, he said.
'Nearly $200,000 in 4 months'
Waikato Regional Council's Regional Compliance Manager Patrick Lynch said McIntyre received $177,000 for receiving Open Country's waste between February and June 2018.
It was also established at trial last year that in the month of May 2018, more than 1500 tonnes of dairy factory liquid waste was received at his farm.
"The waste was then spread to land in such a way as to flow into a tributary stream of the Piako River, causing gross pollution."
He said the sentence of home detention for this type of offending was "very rare".
"This extreme step reflects both the very poor behaviour of this one person, over many years, and the frustration in that he simply has not changed his behaviour."
This was McIntyre's fifth prosecution by Waikato Regional Council in a history of environmental offending that had spanned 12 years, he said.
