Henry Van Den Bogaart was sentenced recently on a charge of discharging a contaminant (animal effluent) into an unnamed tributary of Towai’s Paiaka Stream in August 2006.
Van Den Bogaart was a 50/50 sharemilker and in charge of an average sized dairy farm owned by a family trust administered by his father.
He was prosecuted by the Northland Regional Council and in what sentencing Judge Fred McElrea described as an “unusual step”, had elected trial by jury on the charge. The trial was held in Whangarei in mid-November last year and ended with jury finding Van Den Bogaart guilty.
During the trial, the jury heard pumping equipment at an effluent pond at the Towai farm had failed to work for “some days or weeks” with effluent eventually overflowing for at least five days into a farm drain, which is a tributary to the Paiaka Stream.
Judge McElrea was critical of the Van Den Bogaart’s “very high level of recklessness” saying he should have taken urgent steps to prevent an overflow after problems with both his pump and a loaned replacement, but had failed to do so.
It would have been clear to Van Den Bogaart that an overflow was inevitable if effluent continued to discharge into his effluent pond, “yet that situation was allowed to occur as the level got higher and higher, without any decisive action being taken by the defendant”.
“He could have asked for another pump, or called in a slurry tanker, or called the Regional Council for help. There is no evidence that he did any of these things.”
Judge McElrea said he accepted evidence by investigating Regional Council staff that the effluent had probably reached the Paiaka Stream itself, about 600 metres from the farm boundary.
Fining Van Den Bogaart $23,000 and costs of $1808 recently, Judge McElrea said he accepted submissions from Crown Prosecutor Peter Magee over a number of aggravating factors in the case.
Those factors included Van Den Bogaart’s recklessness, the lengthy period of time the effluent had spilled and the fact he had been subjected to previous enforcement on several occasions by the Regional Council over effluent and stream contamination.
Judge McElrea said Van Den Bogaart had filed a statement of means in which he claimed a take-home pay of $13,000 a year with expenses of a similar amount.
However, the judge said he found Van Den Bogaart’s statement of means to be “quite unreliable” as it did not include the value of 190 cows, land, dairy company shares, plant and machinery and more than $180,000 of income from Fonterra he had received in the 12 months to May 31 2006.
The judge said Van Den Bogaart was not in a position to “cry poor”.
“Given the fact that this offending occurred in the course of running a dairy farm business, in my view it is appropriate that the fine imposed should represent a significant penalty to the business, in view of the high degree of culpability, the time over which the offending occurred and the need for both special and general deterrence in this case.”
“I accept that a substantial fine will be a financial burden to the defendant but he is the author of his own misfortune in this regard. Other farmers are expected (and able) to comply with their obligations not to pollute waterways and compliance costs are part of their normal expenses.”
Meanwhile, Northland Regional Council Monitoring Manager Tony Phipps welcomed the sentencing and warned “a couple of dozen farmers who have had repeated warnings, abatement and infringement notices” may soon also face prosecution if required improvements and compliance were not achieved.