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District Court of New Zealand |
Last Updated: 22 September 2016
IN THE DISTRICT COURT AT AUCKLAND
CRI-2008-004-019495
THE QUEEN
v
WILLIAM VICTOR GEORGE CONWAY
CAROL MARGARET
DOWN
Defendants
Hearing: 29 October 2009
15 December 2009
Appearances: G Kayes and S Earl for the Crown R Brown for the Prisoner Conway T Banbrook for the Prisoner Down
Judgment: 18 December 2009 at 3.15 pm
RESERVED JUDGMENT OF JUDGE M HARLAND
[Regarding
Decision on Sentencing]
Introduction
[1] Mr Conway and Ms Down appear for sentence, having been found guilty on
25 September 2009 following their jury trial of the following charges:
Mr Conway
a) Six counts of contravening an enforcement order (s 338(1)(b) of the
Resource Management Act 1991 (‘the RMA’); and
R V WILLIAM VICTOR GEORGE CONWAY AND ANOR DC AK CRI-2008-004-019495 18 December 2009
Ms Down
[2] The maximum penalties applicable to this case pursuant to s 339(1) of the
RMA are imprisonment for a term not exceeding two years or a fine not exceeding $200,000 and, if the offence is a continuing one to a further fine not exceeding $10,000 for every day or part of a day during which the offence continues.
[2] The prisoners were to be sentenced on 29 October 2009, but the sentencing
was adjourned to 15 December 2009 to allow counsel to make submissions in relation to the application of the Resource Management (Infringement Offences) Regulations 1999 (‘the 1999 RMA Regulations’) and the Summary Proceedings Act 1957 (‘the SPA’) to the charges under ss 15(1) (b) and (d). Neatly put, the prisoners argue that the 16 counts relating to s 15(1)(b) and (d) (eight counts in respect of each prisoner) cannot stand because the informations which commenced the charges are a nullity. I will refer to this issue ‘the jurisdictional issue’ and will return to it shortly.
[4] Despite the jurisdictional issue
which must be determined, all counsel agree
that in this particular case the
lead charges are in fact the contraventions of the enforcement orders which
concern offending against
338(1)(b) of the RMA. These charges are not affected
by the jurisdictional issue. All counsel also agree that in terms of the end
sentence, I am able to take into account the particulars of the discharges which
form the basis of the counts subject to this jurisdictional
issue, because of
the terms of the particular enforcement orders which apply in this case. The end
result in terms of sentence will
therefore be unchanged by the jurisdictional
argument, however I am specifically asked to determine it nonetheless.
[5] This decision therefore will be structured to deal with the following issues:
THE JURISDICTIONAL ISSUE The arguments
[6] The prisoners argue that the charges under s 15(1)(b) and (d)
are
infringement offences for the purposes of s 21 of the SPA and as such the
Crown was required to obtain the Court’s leave before
the informations
which formed the relevant counts in the indictment presented against the
prisoners, were able to be laid. Because
leave was not obtained, the prisoners
submit that these informations are a nullity and that s 204 of the SPA cannot
cure the failure
to obtain leave.
[7] The prisoners argue that offences against s 15 are infringement offences
until
leave has been granted under s 21(4), at which point they become
summary offences to be dealt with in the usual way. The prisoners
argue that the
granting of leave is
the trigger for this event to occur and the status of the offence at that point changes from infringement to summary.
[8] The Crown submits that s 21 of the SPA does not apply because the
informant retains a choice as to the procedure it undertakes in respect of offending under s 15 of the RMA. The Crown submits that it can choose depending on the nature of the offending to proceed to lay an information under s 12 of the SPA, thereby treating the charge initially as a summary offence or to use the infringement offence procedure under 343B of the RMA. Section 343B provides two ways to deal with an infringement offence. An infringement notice can be served as provided for in s 343C1 or an informant can seek leave from the Court to lay an information2. In other words, the Crown submits that an informant has three pathways it can choose to deal with s15 offending; one where an information is laid under s12 and the offence starts out life as a summary offence and the other two which are under s343B and are infringement offences. In this case, the Crown submits that the informant laid the informations under s 12 of the SPA and accordingly the infringement offence procedure does not apply.
[8] This technical argument which has also been the subject of a decision by
Judge Smith in Bay of Plenty Regional Council v PF Olsen Ltd.3 In that case Judge Smith was dealing with alleged offending under ss 9 and 15 of the RMA. He determined that the ss 9 and 15 offences could still be dealt with under s 12 of the SPA, relying on s 338(1) of the RMA, or alternatively action could be taken to deal with the offending as an infringement offence using 343A to D of the RMA. Judge Smith acknowledged that if the infringement offence procedure was used, it was possible for an infringement offence to also become an action by way of information under s 21(4) of the SPA, with leave being sought of the District Court Judge or Registrar before that could occur. He commented that such a course would be very rare4. I am urged by the Crown to adopt Judge Smith’s reasoning and by the prisoners to reject it.
1 Section 343B(b)
RMA
2 Section 343B(a) RMA and Section 21(1)(a)
SPA
3 DC Rotorua, CRN 0806 3501462-66, 13 November
2009
4 Supra paragraph 57
Legislative background
[10] The RMA came into effect on 1 October 1991. Part 12 of the RMA deals with declarations, enforcement and ancillary powers. Sections 338 to 343 are contained under the heading ‘Offences’. Section 338 deals with offences against the Act and s 339 outlines the penalties able to be imposed upon conviction.
[11] Section 338(1)(a) of the RMA provides: Offences against this Act
(1) Every person commits an offence against this Act who contravenes,
or permits a contravention of, any of the following:
(a) Sections 9, 11, 12, 13, 14, and 15 (which impose duties and restrictions in relation to land, subdivision, the coastal marine area, the beds of certain rivers and lakes, water, and discharges of contaminants):
[12] Section 339(1) of the RMA provides: 339 Penalties
(1) Every person who commits an offence against section 338(1), (1A),
or (1B) is liable on conviction,—
(a) in the case of a natural person, to imprisonment for a term not exceeding 2 years or a fine not exceeding $300,000:
(a) in the case of a person other than a natural person, to a fine not exceeding $600,000.
[13] The RMA does not prescribe the nature of resource management offences created by s 338 and in the absence of a statutory prescription as to the nature of the offence, the default position is that it is a summary offence.5
[14] Part 2 of the SPA contains the procedure where a defendant is proceeded against summarily. Section 12(1) provides that:
12 Commencement of proceedings
(1) Except where the defendant has been arrested without warrant, all
proceedings brought under this Part of this Act shall[, subject to sections 20A and 21 of this Act,] be commenced by the laying of an information or the making of a complaint.
[15] By virtue of s 18 of the Resource Management Amendment Act 1996 (‘the 1996 Amendment Act’), s 343A to D were included under the heading ‘Infringement Offences’. The sections which deal with ‘infringement offences’ are therefore separately delineated and identified from the sections which deal with ‘offences’. The delineation between the two headings is highlighted further by the fact that s 339 specifically refers to the penalties able to be imposed ‘upon conviction’ whereas in respect of infringement offences s 78A of the SPA provides that no conviction can be entered for an infringement offence.
[15] On the face of it therefore, under the section entitled ‘Offences’, s 338(1)(a) makes it an offence against the RMA to contravene s 15 with the result that s 339 applies. Equally clear is that contraventions of s 15 are also able to be infringement offences. This is because s 343A defines an ‘infringement offence’ as an offence specified in such regulations made under s 360(1)(ba). Section 360(1)(ba) empowers regulations to be made prescribing:
Those offences under this Act that constitute infringement offences against this Act. (Emphasis added).
[15] The Resource Management (Infringement Offences) Regulations 19996 (‘the 1999 Regulations’) although promulgated, did not come into force until 1 February 2002. Regulation 2 of the 1999 Regulations provides:
Those offences under the Resource Management Act 1991 listed in Schedule 1 are infringement offences for the purposes of s 343A to 343D of that Act. (Emphasis added)
The infringement offences listed in Schedule 1 of the 1999 Regulations include contraventions of s 15(1)(b) and (d) of the RMA.
[18] The position regarding contraventions of s 15 of the RMA was therefore that up until 1 February 2002 when the 1999 Regulations came into force the only pathway for dealing with contraventions of s 15 was under s 338 of the Act which required informations to be laid in court to be dealt with in the usual way and if conviction followed, the penalties outlined in s 339 would apply. When the 1999 Regulations came into force, the infringement offence provisions articulated that contraventions of s 15 could be infringement offences. The crux of the issue before me is whether the 1996 Amendment Act intended to make all contraventions of s 15 infringement offences, or whether contraventions of s 15 could still be dealt with as summary offences by virtue of s 338 of the RMA to be dealt with in the usual way by the issuing an information under s 12 of the SPA.
[18] Somewhat unhelpfully, the RMA itself does not provide much assistance with this difficult issue. It does not specifically state that offences against s 15 are exclusively infringement offences, neither does it state that s 15 offences are still summary offences for the purposes of ss 338 and 339.
“Are all Section 15 offences infringement offences”? – the argument developed
[18] The argument for the prisoners arises because of the confusion between the interrelationship of ss 343A to D of the RMA and the provisions of the SPA regarding infringement offences.
Infringement offences under the SPA
[18] Section 2(1) of the SPA defines infringement offence as:
Any offence under any Act in respect of which a person may be issued with an infringement notice. (Emphasis added)
[18] ‘Infringement notice’ is defined in s 2(1) of the SPA by reference to specified statutes and ss (k) provides for the issue of infringement notices under other Acts:
Any provision of any other Act providing for the use of the infringement notice procedure under s 21.
[23] Section 21 of the SPA provides for the manner in which proceedings in respect of an infringement notice can be commenced:
(1) Proceedings in respect of an infringement offence may be
commenced—
(a) With the leave of a District Court Judge or a Registrar, by
laying an information under this Act, or by filing a notice of prosecution under section 20A of this Act; ...
[24] To complicate matters however, s 343A of the RMA contains its own definition of infringement offence which has been referred to in paragraph [16] of this Decision. In addition s 343C provides its own special procedure for the issuing of infringement notices.
[25] Section 343C(4) of the RMA provides for the use of the infringement notice procedure under s 21 of the SPA in respect of an RMA infringement offence. It provides:
If an infringement notice has been issued under this section,—
(a) a reminder notice must be in the form prescribed under this Act; and
(a) proceedings in respect of the offence to which the infringement notice relates may be commenced in accordance with section 21 of the Summary Proceedings Act 1957, and the provisions of that section apply with all necessary modifications. (Emphasis added)
[26] The Crown submits that s 343A to D of the RMA were not intended to replace the existing procedure for prosecuting a breach of s 15 of the RMA, but to provide a further enforcement tool for such breaches at the hands of an informant. The Crown submits that if an act or omission constitutes an offence under section 338, which is also specified in Schedule 1 to the 1999 Regulations, the offence may either be dealt with as a summary offence against the RMA for which an information may be laid under s 12, or as an infringement offence under 1999 Regulations for which the procedure is set out in s 343B. If the matter is dealt with as an infringement offence, the Crown submits that s 343B provides two options for proceeding:-
[27] If an infringement notice was not issued, then the alternative procedure of obtaining leave from the Court would be required. This however, the Crown submits does not mean that the s 12 procedure is not available to an informant as well. In other words the Crown submits that the offences set out in s 338 are not only to be treated as infringement offences for the purposes of prosecution proceedings because the Act does not specifically say that and further, the offences specified in Schedule 1 are to be infringement offences ‘for the purposes of s 343A to D of the RMA only’.
[28] To interpret the Act in any other way would, the Crown submits, result in an absurd interpretation, which would mean that:
[29] The Crown refers to the legislative history of the Amendments and refers to Hansard to provide support for the view that infringement notices were intended to deal with minor breaches of the Act. I was referred to the speech of the Honourable
Simon Upton, Minister for the Environment on the introduction of the infringement regime in the Resource Management Bill No 3:7
Finally let me make mention of a few of the other technical amendments in the Bill. Enforcement provisions, particularly for minor offences, have been strengthened...
Clause 56 introduces new provisions which allow local authorities to impose an infringement fee – or instant fine – on a person who commits an offence...
I just diverge from my notes and say that it does seem to me that this is the only sensible cost-effective way of enabling minor breaches to be dealt with swiftly. It is absurd that minor breaches have to go through the full machinations of the law at vast cost, which means they never happen – or I should say, that enforcement is never undertaken...
But I reiterate that technical or not these are important changes but they are not changes that significantly alter the thrust of the Resource Management Act. Rather, they seek to tidy up some matters that were not fully resolved in 1991 when the original Bill was enacted and they fine-tune some existing provisions based on four years of practical experience.
[30] I was also referred to Judge Smith’s Decision in Bay of Plenty Regional Council v PF Olsen Ltd8 where he referred to the report of the Planning and Development Committee on the Resource Management Amendment Bill:
Infringement notices provide for a penalty to be issued after an offence has occurred. There is a concern that the prosecution of minor offences under the Act has become cumbersome and costly. Proposed new subsections 343A and 343D are intended to rectify the situation and provide council with another enforcement tool in the Act.
[30] On the face of it therefore the intention of the legislature in introducing sections 343A to D was to provide an alternative procedure for dealing with minor breaches of the Act. This gives force to the argument that the provision of infringement offences was not intended to replace the offence provisions already provided for in the Act, which were not repealed or amended in any significant way as a result of the Amendment.
7 Hansard Parliamentary
Debates, 14 December 1995, Volume 552, 10915-10716
8
Supra at page 37
Decision
[32] In my view therefore, contraventions of s 15 are clearly able to be dealt with either under the infringement offence procedure or under s 12 of the SPA as a summary offence. I am further reinforced in this view because of the status of regulations generally. If such a significant amendment to the Act had been contemplated by Parliament, then this would not in my view been achieved by way of delegated legislation through the use of regulations, but rather would have resulted in an amendment to ss 338 and 339. Because the Regulations are delegated legislation and section 339(1) provides expressly that a person who commits an offence under section 338(1) is liable on conviction, if the Regulations are interpreted as precluding the entry of the conviction, they would possibly be contrary to the principal Act and therefore ultra vires.
[32] The fact that the RMA contains two provisions which deal with offences against s 15 is entirely permissible. Section 10(3) of the Crimes Act provides:
...
(3) Where an act or omission constitutes an offence under 2 or more provisions of this Act or of any other Act, the offender may be prosecuted and punished under any one of those provisions.
The Crown submits that s 10(3) allows a prosecution for breach of s 15 of the RMA to be brought, either as a summary offence under s 338 using s 12, or as an infringement offence under s 343B, the latter of which requires leave under s 21 only.
[32] Both the arguments presented by the Crown and for the prisoners contain difficulties. If the Crown’s version is to be accepted, then whilst there is a two stage procedure for an informant to choose (s 12 SPA procedure or the s 343B RMA procedure) the net result would be that there were in fact three ways for a person to be dealt for s 15 offending, two of which could involve the issuing of an information. It is hard to conceive of a situation where an informant would seek leave of the Court to issue an information for an infringement offence when an information could more easily be laid under s 12 of the SPA. Correspondingly there are difficulties with the
counsel for the prisoners’ argument. If the prisoner’s argument is accepted, then all offences under s 15 are categorised as infringement offences until the Court granting leave changes them into summary offences. This argument ignores the fact that s 338(1)(a) was not specifically amended by the 1999 Amendment Act and that s 339 specifically provides for severe penalties to be imposed upon conviction. This is contrary to the SPA requirement that infringement offences are ones which do not attract a conviction9. This argument also ignores the intention of Parliament to add a procedure in the 1999 Amendment Act to deal with more minor offending.
[35] I accept that the drafting is not particularly clear and has in fact proved to be unhelpful. Because I have decided that contraventions of s 15 are not as a result of the amendment always infringement offences but can be treated under s 12, I do not need to consider in detail the very obvious and many difficulties which arise because of the lack of clarity as to what parts of the SPA infringement offence procedure apply to RMA infringement offences. In some regards the infringement offence procedure under the RMA is specified10, but on the other hand parts of the SPA and in particular aspects of s 21 of the SPA are also invoked.11 In some Acts where infringement offences have been introduced, the draftsman has sought fit to specifically dispense with the requirement for leave under s 21(4) of the SPA12, but the RMA is not one of them. If s 21(4) does apply, then there is the odd conclusion that an informant can either elect to use the section 12 procedure and issue an ordinary information, or can use the infringement offence procedure and also with leave of the Court, issue an information.
[35] I am of the view that s 15 offending can be dealt with either by an informant electing to lay an information under s 12 of the SPA or proceeding to deal with it as an infringement offence under the provisions of s 343B of the RMA. I do not agree that s 15 offending must always start out life as an infringement offence and that its status is only changed once leave of the Court is obtained to issue an information. To hold otherwise would not accord in my view with the purpose of the 1999
9
Section 78A SPA
10 Section 343C(3) and (4) RMA;
Regulation 4 1999 Regulations
11 Section 343C(4)(b)
RMA
12 Financial Reporting Act 1993 Section 41A
Fisheries Act 1996 Section 260A; Land Transport Act 1998 Section 138; Gambling
Act 2003
Section 356; Railways Act 2005 Section 98
Amendment Act which was to add another enforcement tool to deal with minor offending against s 15. In my view the provisions of s 343A to D were not intended to replace s 338(1)(a) and s 339 and if that had been intended, then amendments to those sections would have been made.
[37] Accordingly the 16 counts which deal with the offending against s 15(1)(b) and (d) in this case were able to be commenced under s 12 and leave was not required before the informations issued. This means that these counts specifically must be dealt with me in sentencing the prisoners.
DECISION ON SENTENCE
[37] Even if I am wrong on my interpretation of the statutory provisions, in my view the charges concerning the contraventions of Judge Whiting and Judge Smith’s enforcement orders enable me in any event to take into account the facts of the s 15 discharges in sentencing Mr Conway and Ms Down. This is because the contraventions of the enforcement orders include as a particular the prisoners operating a scrap metal yard without having put in place appropriate measures to prevent the unauthorised discharge of contaminants.
[37] For some time prior to the offending, a company by the name of Cash for Scrap Ltd operated a scrap metal yard at 11 Bairds Road Otara. Cash for Scrap Ltd was incorporated on 1 September 2000 and its sole director and shareholder was Ms Down. On 17 December 2007 Cash for Scrap Ltd changed its name to 1 2 3 Metals Ltd and that company went into liquidation on 23 May 2008.
[37] The resource management practices of Cash for Scrap Ltd at 11 Bairds Road came under the scrutiny of the Auckland Regional Council (“the ARC”) very early on. The company and Mr Conway and another company known as Millennium Investments Ltd pleaded guilty to a number of counts in an indictment relating to discharge of contaminants onto land and into water, failing to comply with abatement notices and contravening enforcement orders. Whilst the offending period for those matters occurred between 1 May 2001 and 24 August 2001, they were not resolved by the Court until 27 May 2004. I will return to this shortly
because Mr Conway received a term of three months imprisonment for his role in the offending.
[41] No doubt because of the offending in 2001, the ARC applied for and was granted an enforcement order by Judge Whiting on 19 December 2002 which covered the property at 11 Bairds Road Otara. The order was made against Cash for Scrap Ltd, Mr Conway and Ms Down. The enforcement order was wide in its effect and became effective on 31 March 2003. In general terms it required Mr Conway and Ms Down as respondents to cease the operation of the scrap metal yard at 11 Bairds Road until measures had been put in place to prevent the unauthorised discharge of contaminants and appropriate resource consents had been obtained in relation to land use and discharge of contaminated stormwater. It required existing scrap metal be removed within one month of the order coming into effect and within one week from the order coming into effect, all existing stocks of scrap metal contaminated by oil or existing stocks of zinc metal or alloys were required to be placed under cover, and specific measures were required to be taken to prevent further discharges to ground or stormwater.
The offending
[41] The offending for which the prisoners were found guilty occurred between 5 August 2005 and 31 January 2006 at 11 and 13 Bairds Road Otara, and between 5 February and 22 March 2007 at 57 Tidal Road Mangere. The offending arose out of the operation of a scrap metal business at these addresses, which was conducted by Cash for Scrap Ltd. At the date of the offending, no resource consents had been obtained as required by Judge Whiting’s enforcement order.
[41] At the relevant times Ms Down was the sole director of Cash for Scrap Ltd and Mr Conway was the ‘man-in-charge’. Mr Conway and Ms Down were at all relevant times in a personal relationship which was described to the Court as a ‘life partnership’. There was evidence to suggest that Ms Down took over the directorship of Cash for Scrap Ltd initially when Mr Conway was prohibited from acting as a director. It needs to be stated that Mr Conway and Ms Down no longer live together, but remain friends.
undertaken at the site and on one occasion drums were observed to be in the process of being crushed with leachate from the crushed drums spilling onto the bare ground.
[48] The topography of the land was such that during rainfall events stormwater would traverse over from 13 Bairds Road onto 11 Bairds Road into catchpits. The catchpits were connected to the stormwater outlet which flowed into a stream adjacent to 11 Bairds Road, which in turn eventually flowed into the Tamaki Estuary. Following the obtaining of search warrants, the visits on 26 August and 31 January authorised the council officers to take samples from the various catchpits and certain areas where contaminants were observed to be. The sample results revealed the presence of hydrocarbons, PCBs, polychlorinated byphenyls, copper and polyurethane. The samples revealed elevated levels over recommended guidelines to the extent that there would be a concern if such material entered the stream, because of the potential effect on aquatic organisms and species.
[48] In this case there is no direct evidence of any actual contamination to the stream and the Crown case was clear that it was the potential for harm which was its focus. Inferentially however because of the stormwater design, during heavy rainfall events it was likely that contaminants which found their way into the catchpits would have been discharged into the stream. The extent of the problem this is likely to have caused is not able to be quantified. There was also evidence to suggest that other industrial sites in the vicinity might also be responsible for discharge of contaminants into the stream as well.
[48] Whilst many of the counts related to specific dates, count 16 related to a continuing breach of Judge Whiting’s enforcement order between 5 August 2005 and 31 January 2006. Accordingly by its verdict in respect of count 16, the jury accepted that there were ongoing breaches of the enforcement order.
[48] On 16 February 2006 the council applied for an enforcement order in relation to 13 Bairds Road. The order was issued by Judge Smith on 10 October 2006. This enforcement order required Cash for Scrap Ltd, Mr Conway and Ms Down to cease the operation of the scrap metal yard at 13 Bairds Road. It also required that Cash for Scrap Ltd, Mr Conway and Ms Down not commence any other recycling or
waste operation on any other site unless they had put in place appropriate measures to prevent the unauthorised discharge of contaminants and all necessary resource consents had been obtained.
[52] In October 2006 Cash for Scrap Ltd relocated its business operations from Bairds Road to 57 Tidal Road Mangere. The site at 11 and 13 Bairds Road was remediated and initially the operations at Tidal Road occurred within a roofed building that was bunded. At trial Mr Conway and Ms Down argued that a separate business, Bairds Road Scrap Ltd (‘BRS Ltd’) in fact operated the business at Tidal Road and not Cash for Scrap Ltd. The jury by its verdicts rejected this argument. Evidence was produced by the prisoners that Bairds Road Scrap Ltd entered into the lease agreement for the premises at Tidal Road, and that Mr Conway and Ms Down were paid from a bank account operated by BRS Ltd.
[52] For a while the business at Tidal Road operated successfully under cover. Unfortunately there was a fire at the premises on 5 February 2007 which significantly damaged the roof of the building at Tidal Road.
[52] Counts 21, 23, 24 and 26 relate to the offending at Tidal Road. Counts 21 and 23 related to continuing offending between 5 February and 22 March 2007 in relation to contravening Judge Smith’s enforcement order and permitting the discharge of contaminants onto land from the industrial or trade premises at Tidal Road. Counts 24 and 26 deal with the specific observations of council staff relating to the defueling of motor vehicles outside the building on 22 March 2007. On 22 March 2007 staff members were observed to place a vehicle on a stand, the fuel tank being punctured with a pick-axe and a receptacle being placed underneath the tank to catch the fuel. The receptacle used did not contain all of the fuel from the fuel tank, some of which ended up in a catchpit nearby. There is no evidence to suggest that any contaminants were discharged into water, in fact the evidence is to the contrary, that the discharges were contained within the catchpits themselves.
[52] Overall the offending at Tidal Road is much less of a concern than that which occurred at Bairds Road.
Purposes and principles of sentencing
[56] The provisions of the Sentencing Act 2002 clearly apply to sentencing under the RMA13 and the approach to be adopted is that of R v Taueki.14 The well known principles outlined in Machinery Movers Ltd v Auckland Regional Council15 which include the assessment of the nature of the environment affected, the extent of the damage, the deliberateness of the offending and the attitude of the offender are all matters which must be considered.
[56] Clearly in this area the purpose of deterrence assumes some significance. In this case for Mr Conway there is a need also for specific deterrence. I need also to assess the seriousness of the offending and balance it with the need and desirability for consistency with appropriate sentencing levels in other like cases. I also need to consider the least restrictive outcome.
Aggravating and mitigating features of the offending Nature of environment affected
[56] At the Bairds Road properties the evidence suggests that contaminants discharged onto ground may have flowed into the nearby stream, which enters the upper tidal arm of the Tamaki Estuary.16 Mr Grogan from the Auckland Regional Council gave evidence that the Tamaki Estuary had suffered from ‘historical abuse’ in terms of discharges.17 Whilst it is impossible to quantify the amount of contamination which may have entered the stream from the Bairds Road site, it is reasonable to infer from the evidence that in heavy rainfall events the discharges from this site would have contributed to the gradual degradation of the stream.
13 Selwyn Mews Ltd v
Auckland City Council (HC Auckland 30 April 2004 Randerson J, CRI-2003
404-159)
14 [2005] 1 NZLR
492
15 [1994] 1 NZLR 492; (1993) 1A ELRNZ 411;
(1993) 2 NZRMA 661 (HC)
16 Note of Evidence, page
315, line 5
17 Notes of Evidence, page 315, line
29
Extent of damage caused to environment
[59] Overall I assess the extent of the damage caused to the environment from the Bairds Road site to be moderate and that from the Tidal Road site to be minimal. It must be borne in mind that the offending occurred over a period of five months, although it must be acknowledged that it occurred over spring and summer.
[59] The potential effect on the environment cannot be understated because of the cumulative effect of similar behaviour. As Judge Doogue stated in R v Conway & Others18:
...it must be an objective of sentencing to dissuade others who might cause like harm. If that is not done, then the waterways and tidal areas affected could suffer the equivalent of ‘death by a thousand cuts’. Each minor to moderate assault on the environment represents an accretion to the damage that went before and unless checked, could in the end cause irreversible harm to the environment.
The deliberateness of the offending
[59] In my view the offending on both sites was deliberate and is aggravated by the fact that at both sites Court orders were breached. There was some evidence to suggest that Mr Conway’s relationship with council officers was not positive. No doubt Mr Conway’s attitude and response to council requests was coloured by this. The reality however remains that two Judges independently had reviewed evidence placed before them and had seen fit to make enforcement orders which were required to be complied with by both Mr Conway and Ms Down. In my view the offending in this case was deliberate and ongoing and in the case of Mr Conway, was particularly serious, given that he was clearly aware of his legal obligations, given the fact that he had previously been convicted and sentenced to imprisonment for like offending.
[59] In relation to Ms Down, the situation is slightly more complicated. In my view she is less culpable than Mr Conway because she was less involved in a day-to-day sense with the operation of the business. She however allowed herself to assume
18 Auckland DC, T025869, 27 May 2004
the directorship of Cash for Scrap Ltd and the ownership of 13 Bairds Road, and therefore assumed the responsibilities commensurate with those positions. I am left with the impression that she is a person who likes to help others and that she was really foolish rather than deliberately obstinate in the way that she chose to deal with her obligations. I have no doubt that she assumed the positions she did out of a misguided sense of loyalty to Mr Conway. As against that, it must be recorded that she at the time benefitted significantly in a financial sense from her involvement. The sentence imposed on Ms Down must reflect the fact that liability cannot be avoided by dealing with those responsibilities in a passive manner.
[63] There was evidence at the trial that Ms Down received assistance from Mr Moorhead, the company accountant and Mr Jacobsen, a self-styled planning consultant. Clearly Mr Jacobsen’s advice in relation to some planning matters was wrong and the attitude he displayed when giving evidence indicated to me that his approach to these complicated and difficult matters was less than helpful. The reality is however that Ms Down was personally obliged under the enforcement orders to ensure that they were complied with and insufficient steps were taken by her to ensure that they were.
Remediation of Bairds Road sites
[63] Counsel for the prisoners submit that the site at Bairds Road was cleaned up in October 2006 and this is a factor which must be taken into account as a mitigating feature relating to the offending itself. The Crown submits that it cannot, because the clean-up occurred some nine months after the charge period and the motivation for it was to ensure the property could be sold rather than any concern to comply with the 2002 enforcement order, or to remediate the discharge of contaminants.
[63] In my view the fact of remediation of the Bairds Road site can and should be taken into account regardless of the motivation for it. The weight given to this factor however must be tempered by the fact that it occurred nine months after the offending in circumstances where the enforcement order impliedly required it anyway.
Starting point
[66] The Crown submits that Mr Conway’s culpability is high and that the principles and purposes of sentencing will not be met by anything short of a term of imprisonment. The Crown submits that a starting point of six to seven months imprisonment would meet this objective. Given Mr Conway’s previous conviction for like offending and the sentence of imprisonment he received, the Crown submits that the principle of deterrence would not be met if a sentence short of imprisonment is imposed. Mr Brown submits that a sentence of community work and community detention should be the starting point, but in the event that imprisonment is determined by the Court to be the starting point, he submits that home detention should be the appropriate outcome.
Crown submissions
[66] In support of its nominated starting point, the Crown refers to R v Conway19, R v Borrett20, R v Gordon21, and R v Campbell22.
[66] The Crown submits and refers to Mr Conway’s previous case for like offending and in particular refers to the Court of Appeal decision where Mr Conway’s appeal against sentence was declined. At page 65 the Court held:
In our view the Judge was right to choose the sentencing option that best met the goals of accountability, denunciation and deterrence...A short sentence of imprisonment may well deter Mr Conway from behaving in this way again. He will realise that further offending of this type is likely to result in a longer period of imprisonment. Equally it may well deter other members of the community of a similar mind to Mr Conway, from ignoring or deliberately flouting the provisions of the Act or orders of the Environment Court.
[66] Whilst not intending any disrespect to counsel, the other decisions referred to are helpful but are clearly distinguishable on their facts.
19 2005, NZRMA
274
20 CA422/03, December
2003
21 DC Auckland, CRI-2006-004-11931, 19 December
2008, Mathers DCJ
22 DC Hamilton, T032376, 17
December 2004, Doogue DCJ
Defence submissions
[70] Mr Brown submits that the offending on this occasion was less serious than the offending which was before Judge Doogue in 2004. On that occasion Mr Brown submits that no attempt had been made to obtain resource consent and there were deliberate acts of ‘vandalism’, because Mr Conway had specifically instructed employees to discharge contaminants directly onto land. In addition, Mr Brown submits that that case concerned actual evidence of contamination of the stream and the vegetation surrounding the stream, as well as rubble from the site being dumped on the stream banks.
[70] Mr Brown submits that there were attempts in this case to obtain a resource consent, albeit he concedes that they were half-hearted attempts. Mr Brown submits that Mr Conway failed to oversee staff properly and did not do enough to solve the problems, but he submits, it is not a case of Mr Conway doing nothing at all. He submits that efforts were made to try and train staff in the use of spillsorb material, which was to be used in the event of contaminants spilling onto the ground. Whilst conceding that what was done may have been inadequate, he distinguishes this from a total failure to do anything at all.
Decision on starting point – Mr Conway
[70] I accept that in respect of Mr Conway the offending on this occasion was less brazen than the offending which was dealt with by Judge Doogue. There were efforts made to try and deal with the possibility of discharge of contaminants but these steps were woefully inadequate. The evidence suggests that Mr Conway was on site most days at least at Bairds Road. On the days that counsel staff inspected the site, it was obvious that any steps taken to contain contaminants were inadequate. When confronted with the issue, despite his knowledge of the Court’s response to such things, and despite the existence of Judge Whiting’s enforcement order, Mr Conway did very little if anything to try and deal with the matter in an immediate way. His approach to council staff was confrontational. Mr Conway’s response cannot be seen to have been immediate or contrite. Whilst the effects on the actual
environment might have been less than previously, an important aspect in this sentencing is the need to emphasise the importance of compliance with Court orders. In my view a starting point of imprisonment for Mr Conway is warranted to achieve the sentencing purposes of denunciation and deterrence.
[73] Mr Conway received an end term of imprisonment of three months in respect of nine charges, three of which related to the discharge of contaminants into water, two related to contravening an abatement notice and four related to breaching Judge Whiting’s enforcement order. On that occasion he pleaded guilty. The starting point for Judge Doogue must therefore have been a term of imprisonment of between six to eight months. This is evident because the guilty pleas, health issues and Mr Conway’s previous good character were taken into account before the end term was imposed.
[73] In my view the offending on this occasion should attract a starting point of six months imprisonment. Whilst the effect on the environment may have been less than on the previous occasion, the starting point reflects the fact that the offending occurred over a period of five months and involved breaches of Judge Whiting’s enforcement order. Remediation occurred, but some nine months after the offending period.
Starting point – Ms Down
[73] Ms Down’s culpability is much less than that of Mr Conway. A term of imprisonment to reflect the need for deterrence and denunciation is not necessary in her case. A term of community work would meet those objectives.
Aggravating factors relating to Mr Conway
[73] Mr Conway has previous convictions. The convictions invoked a stern response from the Court which was upheld on appeal. This offending occurred some 15 months after Mr Conway’s conviction and imprisonment for similar offending.
[77] In my view an uplift to reflect Mr Conway’s previous offending is required. I assess this at one month’s imprisonment. Accordingly the starting point from six months is uplifted by one month to seven months.
Mitigating factors – Mr Conway
[77] Mr Conway has health problems. These are referred to in the pre-sentence report but were also apparent when he was previously sentenced to imprisonment. Mr Conway has fallen upon hard times. He is now living in rental accommodation and trying to operate certain business activities from his base in Orewa. He has not been involved in the scrap metal industry it would seem for a period of time. The factors to which I have referred in my view warrant a deduction of two weeks.
[77] The end sentence for Mr Conway is therefore one of six and a half months imprisonment.
[77] I then need to consider whether home detention will meet the purposes of sentencing and in particular whether it is the least restrictive outcome. A home detention report appendix has been prepared. It raises concerns about the suitability of Mr Conway’s address and about his ability to comply with such a sentence. I refer in particular to page one of the Appendix, paragraph three, which states:
Although there are no issues with the mobile phone coverage to the building the capacity to adequately and appropriately monitor Mr Conway is reduced by the inability to impose a physical boundary around his personal living quarters. For this reason, Community Probation and Psychological Services would have grave concerns regarding the feasibility of such an address; therefore, with this as the solely proposed address, the author cannot in good judgement support the imposition of an electronically monitored sentence.
The report writer also had concerns about Mr Conway’s attitude and ability to comply with the sentence of home detention. These are outlined in paragraph one at page four of the report. The report recommended community work, but it must be noted that the report writer did not have in front of her, Mr Conway’s previous convictions for offending of a similar nature.
[81] I am left with the view that home detention is not an option which is able to be properly considered by this Court.
Mitigation – Ms Down
[81] Ms Down is 61 years of age. She has not previously appeared before the Court. She is entitled to a discount to reflect her previous good character. Ms Down has also fallen upon hard times. She was bankrupted in May 2009, largely as a result of her involving herself in Mr Conway’s business affairs. She is to face charges of fraud which I have been advised, again result out of the failed business venture involving Mr Conway.
[81] The Crown submits that a stern sentence of community work near the upper end of the range is required. Mr Banbrook submits that 150 hours community work would properly reflect all matters.
[81] In my view a starting point of 300 hours community work is warranted. Bearing in mind mitigating matters, in my view a sentence of 250 hours community work is the end sentence.
M Harland
District Court Judge
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URL: http://www.nzlii.org/nz/cases/NZDC/2010/2109.html