Prosecution
Offences
Section 338 specifies offences against the Act, and s 339 specifies the penalties, as follows.
Section |
Offence: contravention of or permit a contravention of |
Penalty |
|---|---|---|
338(1)(1A) and (1B)
|
|
Maximum penalties: 2 years’ imprisonment or $200,000 fine and a further $10,000 per day fine if the offence continues for each day the offence continues. |
338(2) |
Maximum penalties: $10,000 fine and a further $1,000 fine per day if the offence continues for each day the offence continues. Maximum fine is $1,500. |
|
338(1) 338(2) 338(3) |
Any offence |
Section 339(4) provides that a sentence of community service may be imposed. Section 339(5) provides that the Court, instead of or in addition to imposing a fine or a term of imprisonment, may make any or all of the orders specified in s 314 (enforcement orders). |
Principal purposes of prosecution
The two principal purposes of prosecution are to punish the offender and to deter potential offenders.
Deterrence is the attempt to restrain persons from offending by the threat, or actual imposition, of punishment. The principle has a twofold aspect: it may both specifically deter the offender before the Court from re-offending (specific [special] deterrence); and generally deter other persons who may be minded to offend in a similar way (general deterrence) ... The essential distinction between the two is that the former relies on memory, the latter on imagination!
Hall's Sentencing (Lexis Nexis looseleaf edition), I.3.3 page 210,201
Standard of proof
Before prosecution can be considered as an option, the chances of success must be considered. The standard of proof is the criminal standard which is “beyond reasonable doubt” (see glossary).
Whether a defence is available under s 340 and/or s 341 should be considered. In criminal cases the burden of proof is on the prosecution to prove every essential ingredient of the offence. The defendant is deemed innocent until proven guilty. The standard of proof which is required of the defendant to establish the statutory defences provided in s 340 and s 341 is “on the balance of probabilities” (see glossary).
Continuing offence
Section 339(6) provides that the continued existence of anything, or the intermittent repetition of any actions, contrary to the RMA shall be deemed to be a continuing offence.
Case example A
Auckland Regional Council v Westgate Properties Ltd and Others
Westgate Properties (“Westgate”), WGS Construction Ltd (“WGS”) and Cato Consultants Ltd (“Cato”) pleaded guilty to informations (charges) which related to:
(a) earthworks and construction activities, and in particular the lack of suitable erosion and sediment control measures as required by conditions of a resource consent
(b) discharge of untreated sediment into a watercourse
(c) breach of two abatement notices.
The offences occurred during the construction of Westgate commercial centre on a 12-hectare site, involving a $26.5 million contract. Westgate was the principal developer and owner of the land, WGS was responsible for the construction of the complex and Cato were the surveyors and earthworks engineers on-site.
The charges related to earthworks and construction activities, and in particular the lack of suitable erosion and sediment control measures as required by the conditions of a resource consent.
Westgate pleaded guilty to three charges. Two of these charges were for contravention of abatement notices and were continuing offences for 25 days and 55 days respectively. WGS pleaded guilty to two charges, one of which was for a continuing offence for a period of 159 days.
Cato pleaded guilty to one charge for a continuing offence over a period of 159 days.
Environment Judge Whiting in sentencing the defendants factored in a sum of $100 per day for the continuing time of the offending. The total of the fines imposed was $87,800 plus prosecution costs of $16,000. The fines for the continuing offences were as follows.
(a) Westgate was fined $8,500 for breach of an abatement notice, made up of an initial fine of $6,000 plus $100 per day for 25 days.
(b) Westgate was fined $11,500 for breach of the other abatement notice, made up of an initial fine of $6,000 plus $100 per day for 55 days.
(c) WGS was fined $25,900 for breach of s 9(3), using land contrary to a rule in a regional plan, made up of an initial fine of $10,000 plus $100 per day for 159 days.
(d) Cato was fined $21,900 for permitting a breach of s 9(3) by permitting land to be used contrary to a rule in a regional plan, made up of an initial fine of $6,000 plus $100 per day for 159 days.
30/06/00, Judge Whiting, DC Auckland T300600
Information (charge)
The laying of the information (charge) is the commencement of the criminal proceedings.
Time in which the information (charge) can be laid
Subsection (4) of s 338 of the RMA provides that an information (charge) may be laid up to six months from the time when the contravention first became known, or should have become known, to the local authority. Where the offence charged is a continuing offence, time runs from each and every day the offence continues (see Northland Regional Council v Lowe Walker Dargaville Ltd 26/08/97, Judge Bollard, DC Whangarei CRN 7011003566 and 7011003684. This case was cited with approval and followed in R v Gordon, 13 October 2003, Judge McElrea, DC Auckland, T024528).
What can you lay an information (charge) for?
Except where otherwise provided in the RMA, every information (charge) must be for one offence only, with the proviso that if the Act under which the charge is brought states an alternative, an information may charge in the alternative the different matters, acts or omissions stated (s 16 of the Summary Proceedings Act 1957).
Local authorities are entitled to proceed to a hearing on prosecutions alleging the contravention of rules of an operative plan and proposed plan in respect of the same act (see Auckland City Council v Turner 8/11/95, Judge Sheppard, DC Auckland CRN 5004043191-280 and 5004043089-126. Refer chapter 11)
Charges cannot be laid for one act or default under two or more different pieces of legislation (eg, a local authority cannot prosecute for breach of the Building Act and breach of the RMA).
Where a charge is laid relying on a chain of people/companies having responsibility for the offence, it is necessary to establish beyond reasonable doubt the link between each person/company.
Points to Watch
Auckland Regional Council v Horticultural Processors Ltd
Charges were laid for discharge of a large quantity of kiwifruit waste against HPL, who operated a kiwifruit processing plant; Mr Smith, an independent cartage contractor who entered into an agreement on HPL's behalf with Mr Holst; Mr Holst, who agreed to the dumping of kiwifruit slurry into a gully on his farm; and Mr McCann, who subcontracted to transport the slurry.
Judge Kenderdine, because of the wording of the information, dismissed the charge against HPL because the ARC had not established beyond reasonable doubt a link between HPL and Mr Smith as agent or employee, at page 10 of the decision:
If the information sheet had not added ”particulars" but relied simply on a charge pursuant to s l5(1)(b) simpliciter or s l5(1)(b) and s 340 in the alternative, then I would have no hesitation in convicting the company on a charge made pursuant to s l5(1)(b). In this case however, the informant qualified the actions of the company by assuming it was carried out by Mr Smith acting as the company’s employee or agent in the discharge of the contaminant.
The Judge indicated that if during the hearing the difficulty of the wording of the charge against HPL had been apparent, the information could have been amended.
23/11/93, Judge Kenderdine, DC Henderson CRN 2090016530,
Particulars of an information (charge)
The information (charge) must contain sufficient detail so as to fairly inform the defendant of the substance of the offence for which the defendant is charged (s 17 of the Summary Proceedings Act 1957).
Where the exact date of the offence is not known, the date should be stated as being on or about a particular date, or on a day unknown between two stated dates, in order to isolate the date of the offence alleged as accurately as possible (Archbold, Criminal Pleading Evidence & Practice (ed 1995), 1/69).
Can you amend an information (charge)?
Section 162 of the Summary Proceedings Act 1957 provides that an information (charge) may be amended. However, s 162(3) provides that the Court may, at the defendant’s request, grant an adjournment if the amendment disadvantages the defendant.
Where to file the information (charge)
The information (charge) must be filed in the Court nearest to the place where the offence was alleged to have been committed, or where the informant believes the defendant may be found (s 18 of the Summary Proceedings Act).
Right to select trial by jury
Because the maximum term of imprisonment under the RMA is two years, a defendant has a right to elect trial by jury.
Points to Watch
Hutt City Council v Thomson 1/08/94
The Hutt City Council laid an information against Mr Thomson for discharge of waste material including asbestos onto land in contravention of a rule in the Hutt City transitional district plan. The information alleged a breach of s 15(2)(a). The Council, at the hearing, applied to amend the information to allege a breach of s 9(1). Section 15(2)(a) of the RMA refers to a breach of a regional plan. The Hutt City Council cannot lay a charge under s 15(2) because it is not a Regional Council. Judge Skelton refused the application to amend the information:
... especially after this length of time, I do not think this Court should encourage local authorities to commence proceedings in a way that really ought to have been seen as being defective from the start. A simple reading of section 15 of the Resource Management Act 1991 makes it quite clear that the informant in this case, could not have sustained a claim that there had been a breach of that section.
Judge Skelton also took into account that the offence was alleged to have occurred more than 12 months before and the information was withdrawn by leave. Section 66 of the Summary Proceedings Act provides that, for offences which are punishable by imprisonment for a term exceeding 3 months, the defendant has the right to elect trial by jury. District Court Judge James O’Donovan’s comment on jury trials:
Lawyers normally proceed on the basis that juries have a much higher credulity level than judges sitting alone – that a jury is more likely to accept an unlikely story than a judge. So the tendency is to recommend trial by jury in direct proportion to the lawyer’s view of the difficulty of persuading a Judge that the client is telling the truth – the more unlikely the story the more likely the need to have the matter decided by a jury.
That may seem a cynical approach but the fact is that Judges sitting alone frequently do not possess the collective wisdom, the understanding of the ways of the world, of the average jury. Judges, by their training and membership of a rather elite social group, spend their adult lives insulated from the problems which beset other groups in the community. They can be ill equipped to bring to disputed factual situations a proper understanding of how ordinary people might react in extraordinary situations – situations frequently of very considerable stress and anxiety. That is not to say that Judges are lacking in humanity and common sense, but we are all shaped by our experience of life.
Judge Skelton, DC Wellington CRN 3032012451
Fines to be paid to the local authority
Where a local authority lays an information (charge), if there is a conviction and the Court imposes a fine, the fine, less a deduction of 10% (which is credited to the Crown Bank account), is paid to the local authority: s 342(1) and s 342(2).
Under s 342(1) the Court can order that the whole fine be paid to the local authority, as was done in Franklin District Council v McCollum [1994] NZRMA 407.
Defences
Section 340(2)
Section 340 provides that a principal is liable for the acts of its employees and agents, including any contractor. In summary, a defence is available under s 340(2) if the defendant can prove that he/she:
Case example B
Auckland Regional Council v Bitumix
In Auckland Regional Council v Bitumix, the defendant unsuccessfully argued a defence under s 340. Judge Willy’s view is that s 340 is aimed at:
... the circumstances where two distinct entities are involved in the commission of the alleged acts. One, the defendant charged and two, some other person acting as an agent or employee of that defendant. In those circumstances s 340 has the effect of rendering both the principal and the agent liable for the acts complained of.
27/09/93, Judge Willy, DC Otahuhu CRN 3048009825/93.
Case example C
Wellington City Council v Shell Oil & Cudby
In Wellington City Council v Shell Oil & Cudby, a successful defence was based on s 340. Shell established that it had taken all reasonable steps to prevent an offence and could not have known that the other defendant, Cudby Motors, had deactivated all of the safety measures designed to warn of a leak of petrol. Shell, when faced with a spill of some magnitude, acted immediately to remedy the situation.
Shell was acquitted of the charge and Cudby Motors was convicted.
5/03/93, Judge Treadwell, DC Wellington CRN 2032012948/51.
Case example D
Northland Regional Council v Tranz Rail Ltd
The Northland Regional Council prosecuted Tranz Rail Ltd for discharge of urea formaldehyde:
(i) to land in circumstances resulting in the discharge reaching a tributary of a stream
(ii) vapour to air in consequence of the discharge to ground
(iii) from trade premises onto land.
About 14 to 15 tonnes of urea formaldehyde resin glue spilt out of a butanol bladder bag on the back of a truck trailer at the Otiria Tranz Rail railyard. Tranz Rail argued that a causal link was not adequately established between Tranz Rail and the spillage (that the Council had failed to prove beyond reasonable doubt the discharge resulted from operations that Tranz Rail was in a position to control).
Tranz Rail also argued that it did not allow the urea formaldehyde to escape, in that even if it was held that Tranz Rail was aware of the facts from which a reasonable person would conclude a spill of urea formaldehyde could occur, the evidence did not establish that Tranz Rail failed to take precautions a reasonably prudent person would take to prevent the spill.
Tranz Rail had an arrangement with Juken Nissho Ltd to deliver formaldehyde resin glue from Tauranga or New Plymouth to the Juken Nissho mill at Awanui. Tranz Rail employed Kaitaia Transport Ltd as a subcontractor to undertake the road transport phase from Otiria to Awanui. Kaitaia Transport had an arrangement with Juken Nissho to use bladder bags as containers for the glue. The glue is transferred at the Otiria railyard via hoses connected to a pump from the rail tankers to the bladders placed on the flat decks of Kaitaia Transport’s trucks and trailers.
About three months before the discharge, the Council expressed concern to Tranz Rail about a possible mishap in relation to the urea formaldehyde transportation.
The Court found, as a result, Tranz Rail was well aware of the need to take steps to guard against the spillage occurring through the urea formaldehyde transfer operations from the bulk rail tankers to the bladder bags. Tranz Rail issued instructions to its staff at Otiria, which included an instruction that a Tranz Rail employee must be in attendance at all times.
On the date of the incident the urea formaldehyde transfer operations were not properly supervised. The bladder bag leaked and then burst. The Court found that Tranz Rail knew there was a risk of spillage, but had not developed adequate steps and measures to ensure its urea formaldehyde transfer operations, which it was in a position to control, were in fact properly controlled.
Tranz Rail was convicted and fined.
15/05/96, Judge Bollard, DC Whangarei CRN 6088003518, 6088003533-3534
Case example E
Auckland Regional Council v AFFCO Allied Products Ltd
AFFCO pleaded not guilty to four offences of discharging of trade waste effluent from a hide-processing plant and fellmongery onto land (a stormwater system) in circumstances where it entered a tributary of the Puhihui Creek estuary.
AFFCO had installed a number of systems to prevent unauthorised discharge of trade waste from its plant. This included “first flush systems” (by which an initial quantity of water was directed to the trade waste sewer as a precautionary measure) from the stormwater drains. A problem occurred when a contractor cleaning out cesspits overloaded or blocked the valve diverting stormwater to trade waste, resulting in the discharge. The contractor had been discharging into the wrong manhole. The Council did not lay charges against the contractor.
AFFCO was convicted on the charge of contravention of s15(1)(b). Judge Whiting held:
AFFCO was in control of the site and in a position to control the activities of its contractor. To the extent that it could and should have controlled the activity at the point where the pollution occurred it is responsible for the pollution. The defendant company actively undertook the operations conducted at its Wiri Plant including the responsibility for the collection and disposal of waste material on site. It cannot abdicate its responsibilities simply by employing an agent to undertake that work on its behalf. It was in a position to exercise continued control of that activity and to prevent the pollution from occurring but failed to do so.
A charge had not been laid under s 340(1)(a). However, Judge Whiting held that the evidence clearly established the contractor was acting as an agent of AFFCO and therefore s 340(1)(a) applied. The Judge considered whether AFFCO could establish a defence under s 340(2) and held that it could not:
... the management of AFFCO, on any reasonable objective standard, should have known that the offence was likely to be committed. I am also satisfied on the evidence that in any event AFFCO failed to take reasonable steps to prevent the commission of the offence.
29/09/00, Judge Whiting, DC Auckland, CRN 9048006616-9
Section 340(3)
To obtain a conviction against a director or a manager of a company convicted of an offence, s 340(3) provides that the local authority must prove that:
Case example F
R v Lorenzen
The defendant was charged with altering native and exotic vegetation in contravention of the District Plan and without a resource consent. The charges were representative, and in half of them he was charged in his own right and in the other half he was charged with permitting such offences.
The defendant applied to be discharged under s 347 of the Crimes Act 1961 on the basis that it was an independent contractor who altered the land. The contractor was employed by a company who owned the land. Mr Lorenzen was the sole director and shareholder of that company. The contractor could not be found and the company was never charged. [Editor’s note: it says in the ruling of 4 September 2003 that the company was never charged and the Judge proceeded on that basis. However in the sentencing decision of 19 December 2003 Council advised that charges had been been laid but withdrawn after the company went into liquidation].
The defendant argued that as a director of the company he could only be charged pursuant to s 340(3) Resource Management Act 1991 and that his liability only arises if the company is convicted.
The Court found there was ample evidence to suggest Mr Lorenzen was in control and organising or permitting such things to happen on the land. The Court concluded at paragraph 26:
In summary the Crown here does not need to rely upon ownership of the land. It does not need to charge the company to be able to proceed against this defendant. His liability could arise either directly through s 338(1) as the person contravening the relevant provision, or permitting its contravention, or alternatively his liability could arise as a party under s 66 of the Crimes Act. There is sufficient evidence referred to in the depositions to show his personal involvement in the control of what was happening on this land and in my view a reasonable jury, properly instructed on the law, could well come to the conclusion that he is guilty of the offences charged.
4/09/03, Judge McElrea, District Court, T031951
Section 341
Section 341(1) provides that an offence of contravening or permitting a contravention of sections 9, 11, 12, 13, 14 and 15 is a strict liability offence. Strict liability offences are offences in which the prosecution does not need to prove mens rea (wrongful intention) on the part of the defendant, but only the commission of the actus reus (that the defendant committed the prohibited act).
The defence of due diligence (reasonable care) is available for a strict liability offence. The defences in s 341(2) are a codification of the common law defence of due diligence.
In summary, s 341(2) provides a defence to the strict liability offences in certain emergency situations, provided the conduct was reasonable and the effects of the action or event were adequately mitigated or remedied.
Case example G
Fugle v Cowie
The High Court considered the defence of necessity under s 341(2)(a).
The Manawatu - Wanganui Regional Council prosecuted Mr Fugle and an employee, Mr Hitchman, for excavation and deposition of material within the bed of a stream in breach of s 13(1)(b) and s 13(1)(d). The defendants were convicted and fined.
The defendants appealed against the conviction and fine. The appeals were dismissed. The High Court held that the three requirements in s 341(2)(a) should not be considered in isolation and that the considerations relevant to each can overlap. The three requirements are:
The High Court held the following.
[1998] 1 NZLR 104
Case example H
Auckland Regional Council v Bitumix Ltd
In Bitumix, the defendant relied on the defence in s 341(2)(b), claiming that the failure in the valve could not reasonably have been foreseen given that it had been replaced within the last 12 months and that it was hidden behind a door.
This was not accepted by Judge Willy, who regarded the discharge to ground as the offence - not the leak from the valve:
As I have previously indicated that discharge was plain for all to see and continued for some time to the knowledge of at least some of the defendant’s servants, and without anybody taking any steps to mitigate or remedy it ... it is the defendant’s obligation, if it wishes to avail itself of the statutory defence to prove on the balance of probabilities that the flowing of the contaminant over its land and into the stormwater system was an action or event which it could not reasonably have foreseen or provided against.
27/09/93, Judge Willy, DC Otahuhu, CRN 304809825/93
Case example I
Bay of Plenty Regional Council v D’Ath
In Bay of Plenty Regional Council v D’Ath, the defendant was able to establish sabotage as a defence under s 341(2)(b). The defendant had taken steps to avoid a discharge.
23/02/95, Judge Bollard, DC Whakatane CRN 4087005973
Case example J
Auckland City Council v Selwyn Mews Ltd
The defendants faced 19 charges under the Resource Management Act 1991 and the Building Act 1991 relating to excavation works which caused subsidence of land and a loss of support for two adjoining properties. Two separate "collapses" of the property occurred. The charges related to contravention of an enforcement order to construct a retaining wall after the first "collapse".
The Court noted that s 341 applies to sections 9 and 11 to 15 and does not mention enforcement orders. The Court considered the test from Millar v Ministry of Transport [1986] 1 NZLR 660 as quoted in Tell v Maritime Safety Authority [ CA 230/02, 27 November 2002] and stated at paragraph 100:
...there must be a presumption in favour of "total absence of fault" defence, rather than absolute liability. To impose absolute liability would need clear statutory language, and that is just not present here.
On the facts of the case the defendants did not make out a defence of total absence or fault for contravening the enforcement order.
18/06/03, Judge McElrea, DC Auckland, CRN 2004 067301-19
In Waikato Regional Council v Huntly Quarries Ltd the Court found that contravening an abatement notice is a strict liability offence. The Court noted that the point in Selwyn Mews relating to enforcement orders was "conceded by Defence Counsel and there had been no argument that it should be treated as a mens rea offence".
[1986] 1 NZLR 660
Notice of defence under s 341
If a defendant intends to rely on one of the defences in s 341(2), the defendant must give written notice to the prosecutor specifying the facts that support the defence within seven days of service of summons. If the defendant fails to give notice within a seven-day period, leave of the Court must be sought for extension of time.
Points to Watch
Bay of Plenty Regional Council v Salt
the Bay of Plenty Regional Council prosecuted Mr Salt for discharging oil onto land in circumstances where the oil may have entered water. Counsel for Mr Salt sought leave at the conclusion of the prosecution’s case to advance a defence under s 341(2). Judge Bollard refused to grant leave to the defendant because notice had not been given to the prosecutor and:
On balance the prosecution's position would be prejudiced by granting leave, seeing that the prosecution's case had been prepared and presented on the footing that no notice of defence under s 341(2) had been given.
The event which the defendant wished to rely on was the unexpectedly heavy and sustained rain and Judge Bollard did not accept the event could not reasonably have been foreseen or provided against.
In Wellington Regional Council v Stuart & Race 23/11/93, Judge Skelton, DC Masterton CRN 3035003679- 82, Judge Skelton refused an application for extension of time to give notice of defence under s 341(3). The defendants were out of time by something in excess of 100 days and had legal representation for almost the whole of that time.
15/02/93, Judge Bollard, DC Tauranga CRN 2070010589,
Case example K
Auckland Regional Council v Biogas
The Auckland Regional Council prosecuted NZ Biogas Industries Ltd (“Biogas”) for discharge of a contaminant into water and onto land. A large rubber container of decomposing waste from a potato-processing factory burst, and a substantial part of its contents escaped into a stream. Biogas was charged with contravention of s 15(1)(a) for discharge of a contaminant into water and s 15(1)(b) for discharge of a contaminant onto land.
The District Court and the High Court held that in the definition of “discharge”, the words “allow to escape” implied awareness of the discharge and, where it was not established that the defendant was aware of the contaminants being discharged, the defendant did not “allow” the contaminant to escape.
The Court of Appeal in overturning the decision held that it was difficult to see room for any mental element in the act of discharge, but that a person could not be said to discharge the contaminant unless there is a causal connection between the person and the discharge. In each case the causal link will be an issue of fact.
The Court of Appeal found that:
... a person allows a contaminant to escape who fails to take the precautions that a reasonably prudent person in the position would take to prevent that escape ... failure to investigate and take appropriate preventive steps would amount to allowing an escape should it subsequently occur.
The Court held that the absence of engineering advice on the design, construction and testing of the rubber container constituted “allowing to escape”.
The Court allowed the appeal by the Auckland Regional Council and remitted the matter to the District Court for further consideration of the charge, because the District Court had not dealt with the statutory defences relied upon.
There are four decisions:
District Court – 5/07/93, Judge Sheppard, DC Auckland CRN 2048024848/49
High Court – 18/10/93, Temm J, HC Auckland AP 199/93
Court of Appeal – 17/05/94, Cooke P, Casey J, Gault J, McKay J, Fisher J, CA 526/93
District Court – 6/07/94, Judge Sheppard, DC Auckland CRN 2048024848/49.
Case example L
Auckland City Council v Pendergrast
The defendants did not cite evidence in defence of the charges at the hearing in December 2001. Later, in May 2002, the defendants requested a discharge without conviction and wanted to call evidence to support this. The Judge was prepared to allow evidence to be called, but as a matter of fairness to the prosecution this would require an adjournment. The Judge was not prepared to allow submissions to be made which contained disputed facts not supported by the evidence.
31/05/02, Judge McElrea, DC, Auckland, CRN 1004034048-52.
Case example M
Canterbury Regional Council v Newman
The respondent's manager started a fire to burn off vegetation. The fire spread and two neighbouring blocks owned or leased by Snowdon Station were partially burnt, causing loss. The respondent was prosecuted for permitting the spread of the fire. He raised the s 340(2)(c) defence of taking all reasonable steps to remedy adverse effects.
The Court of Appeal held the following.
[2002] 1 NZLR 289.
Sentencing
Sentencing is the process whereby a Court arrives at an appropriate punishment for offending. Sentencing is a balancing exercise in which a range of factors are weighed.
In Auckland Regional Council v Machinery Movers, [1994] 1 NZLR 492 at 501 the High Court noted that:
Like many other statutes, the RMA is silent on the matters which may be taken into account on sentencing. To a large extent, the relevant criteria must be inferred from a consideration of the broad legislative objectives.
The High Court quoted and approved of the sentencing factors in R v Bata Industries Ltd (1992) 9 OR (3d) 329 (liability); 7 CELR (NS) 293 (sentencing):
Within the subtopic of public welfare offences, environmental offences have their own set of special considerations ... The severity of the sentence should vary in accordance with several factors, including:
A. The nature of the environment affected;
B. The extent of the damage afflicted;
C. The deliberateness of the offence;
D. The attitude of the accused.
In sentencing corporations convicted of environmental offences, the Court should consider:
A. The size, wealth, nature of operations and power of the corporation;
B. The extent of attempts to comply;
C. Remorse;
D. Profits machiner by the offence;
E. Criminal record or other evidence of good character.
In the sentencing notes of almost every prosecution under the RMA since the Machinery Movers case, some or all of the sentencing factors for environmental offences as stated in the Bata decision and approved by the High Court in Machinery Movers have been referred to.
The Sentencing Act 2002 "applies to all sentencing on criminal charges including charges laid under the Building Act 1991 and the Resource Management Act” ( Selwyn Mews Ltd v Auckland City Council High Court, Auckland, CRI2003-404-159 to 161). The Sentencing Act 2002 also amended section 339 by inserting subsection (4), providing for a sentence of community work to be imposed. Sections 7, 8 and 9 of the Sentencing Act 2002 set out the purposes and principles of sentencing as follows:
7. Purposes of sentencing or otherwise dealing with offenders—
(1) The purposes for which a court may sentence or otherwise deal with an offender are—
(a) to hold the offender accountable for harm done to the victim and the community by the offending; or
(b) to promote in the offender a sense of responsibility for, and an acknowledgment of, that harm; or
(c) to provide for the interests of the victim of the offence; or
(d) to provide reparation for harm done by the offending; or
(e) to denounce the conduct in which the offender was involved; or
(f) to deter the offender or other persons from committing the same or a similar offence; or
(g) to protect the community from the offender; or
(h) to assist in the offender's rehabilitation and reintegration; or
(i) a combination of 2 or more of the purposes in paragraphs (a) to (h).
(2) To avoid doubt, nothing about the order in which the purposes appear in this section implies that any purpose referred to must be given greater weight than any other purpose referred to.
8. Principles of sentencing or otherwise dealing with offenders—
In sentencing or otherwise dealing with an offender the court—
(a) must take into account the gravity of the offending in the particular case, including the degree of culpability of the offender; and
(b) must take into account the seriousness of the type of offence in comparison with other types of offences, as indicated by the maximum penalties prescribed for the offences; and
(c) must impose the maximum penalty prescribed for the offence if the offending is within the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate; and
(d) must impose a penalty near to the maximum prescribed for the offence if the offending is near to the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate; and
(e) must take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances; and
(f) must take into account any information provided to the court concerning the effect of the offending on the victim; and
(g) must impose the least restrictive outcome that is appropriate in the circumstances; and
(h) must take into account any particular circumstances of the offender that mean that a sentence or other means of dealing with the offender that would otherwise be appropriate would, in the particular instance, be disproportionately severe; and
(i) must take into account the offender's personal, family, whanau, community, and cultural background in imposing a sentence or other means of dealing with the offender with a partly or wholly rehabilitative purpose; and
(j) must take into account any outcomes of restorative justice processes that have occurred, or that the court is satisfied are likely to occur, in relation to the particular case (including, without limitation, anything referred to in section 10).
9. Aggravating and mitigating factors—
(1) In sentencing or otherwise dealing with an offender the court must take into account the following aggravating factors to the extent that they are applicable in the case:
(a) that the offence involved actual or threatened violence or the actual or threatened use of a weapon:
(b) that the offence involved unlawful entry into, or unlawful presence in, a dwelling place:
(c) that the offence was committed while the offender was on bail or still subject to a sentence:
(d) the extent of any loss, damage, or harm resulting from the offence:
(e) particular cruelty in the commission of the offence:
(f) that the offender was abusing a position of trust or authority in relation to the victim:
(g) that the victim was particularly vulnerable because of his or her age or health or because of any other factor known to the offender:
(h) that the offender committed the offence partly or wholly because of hostility towards a group of persons who have an enduring common characteristic such as race, colour, nationality, religion, gender identity, sexual orientation, age, or disability; and
(i) the hostility is because of the common characteristic; and
(ii) the offender believed that the victim has that characteristic:
[(ha) that the offence was committed as part of, or involves, a terrorist act (as defined in section 5(1) of the Terrorism Suppression Act 2002):]
(i) premeditation on the part of the offender and, if so, the level of premeditation involved:
(j) the number, seriousness, date, relevance, and nature of any previous convictions of the offender and of any convictions for which the offender is being sentenced or otherwise dealt with at the same time.
(2) In sentencing or otherwise dealing with an offender the court must take into account the following mitigating factors to the extent that they are applicable in the case:
(a) the age of the offender:
(b) whether and when the offender pleaded guilty:
(c) the conduct of the victim:
(d) that there was a limited involvement in the offence on the offender's part:
(e) that the offender has, or had at the time the offence was committed, diminished intellectual capacity or understanding:
(f) any remorse shown by the offender, or anything as described in section 10:
(g) any evidence of the offender's previous good character.
(3) Despite subsection (2)(e), the court must not take into account by way of mitigation the fact that the offender was, at the time of committing the offence, affected by the voluntary consumption or use of alcohol or any drug or other substance (other than a drug or other substance used for bona fide medical purposes).
(4) Nothing in subsection (1) or subsection (2)—
(a) prevents the court from taking into account any other aggravating or mitigating factor that the court thinks fit; or
(b) implies that a factor referred to in those subsections must be given greater weight than any other factor that the court might take into account.
The High Court in Selwyn Mews ( High Court, Auckland, CRI2003-404-159 to 161) said at paragraph 354 that Machinery Movers "continues to have application but must now be read in the light of the provisions of the Sentencing Act 2002".
Paragraphs 36 to 42 of that decision provide a useful summary of the principal provisions that may be relevant (See also paragraphs 40 to 43 of Waitakere City Council v Gionis, 17/12/02, Judge McElrea, DC Auckland, CRN 1090034293, 1090034295 2090007563, for comments the applicable provisions of the Sentencing Act 2002):
...It [the Sentencing Act 2002] calls for a systematic approach to sentencing, commencing with a consideration of the purposes of sentencing under s 7. Not all those purposes will always be relevant to sentencing in environmental cases. For example, in some cases the harm done may be to the community generally rather than specific members of it. Reparation to particular victims may be relevant in some cases but not others. Rehabilitation will have no relevance to corporate offenders and may not be relevant to individuals who are otherwise of good character.
[37] But many of the purposes of sentencing in s 7 will usually be relevant in environmental cases including holding the offender accountable for harm done; promoting a sense of responsibility for the harm; denunciation and deterrence (both personally and generally).
[38] The principles of sentencing in s 8 will also be relevant particularly (under s8(a)) the gravity of the offending and the degree of culpability involved. That will include the extent of any damage or adverse effects caused to the environment and the extent to which there was deliberate or reckless conduct. As well, the court will need to consider the issues of seriousness of the offence and penalties under s 8(b), (c), and (d); consistency in sentencing levels under s 8(e); the effects on victims under s 8(f) where applicable; and the particular circumstances of the offender under s 8(h) and (i). Where there are issues about mitigating any adverse effects on the environment such as repairing damage or clean up work, then s 8(j) and 10 will become relevant.
[39] Aggravating and mitigating factors under s 9 are to be considered. Although a number of these do not have particular relevance in environmental cases, the matters to be considered are not exclusive: s 9(4).
[40] In environmental cases, fines will most often be the appropriate penalty. There are a number of provisions of the Sentencing Act relevant to fines. Section 13 provides that a fine must be imposed unless any of the specified exceptions in s 13(1)(a), (b), (c), or (d) applies. Other provisions relevant to fines are s 14 and 39 to 43. Obviously, the capacity of the offender to pay a fine will be very relevant and the court has power to order an offender to make a declaration of financial capacity if necessary. That might have been a useful tool in the present case.
[41] Under the Resource Management Act, the court also has power to impose a sentence of imprisonment or community work: s 339(1) and (4). If a sentence of imprisonment is being considered, s 16 of the Sentencing Act is important. First, regard must be had to the desirability of keeping offenders in the community so far as practicable in terms of s(1). Secondly, there is a presumption against imprisonment under s 16(2). Section 8(g) is also relevant (the least restrictive outcome in the circumstances).
[42] Under the Resource Management Act, enforcement orders under s 314 may also be made either instead of or in addition to other penalties: s 339(5). As monetary orders may be made under s 314(d), reparation under the Sentencing Act may have less relevance in environmental cases but the power exists under s 12, 14 and 32 to 38. Where a monetary order is not made under s 314(d), attention must be given to s 12 Sentencing Act which requires a reparation order to be made where a victim has suffered loss or damage to property unless it would create undue hardship or there are other special circumstances rendering such an order inappropriate.
Points to Watch
Auckland City Council v North Power Ltd
The defendant had pleaded guilty to two charges under s 338(1)(a) for clearing indigenous vegetation without a resource consent in contravention of the District Plan.
Approximately 72 informations (charges) had been laid by the informant Council. Discussions between the parties resulted in an agreement whereby all but two of the charges were withdrawn and the defendant would elect summary jurisdiction and would plead guilty. The Council then said that it was not seeking any fine in addition to the enforcement order (which would cover remediation work and the recovery of some costs). Given all these factors the District Court said at paragraph 23:
Counsel must anticipate that the Court is likely to view this as an abuse of the process of the Court. Criminal proceedings should not be used as a means of achieving civil remedies. Reparation for harm done is certainly one of the purposes of sentencing under s 7 of the Sentencing Act 2002, but it sits alongside purposes such as accountability, denunciation and deterrence – the last of these being particularly important in the RMA context as Machinery Movers makes clear.
The Court was also “surprised” that there was no victim impact statement, which prosecutors are obliged to put before the Court (s 17 Victim's Rights Act 2002). The Court considered that the difficulty in assessing the land owners' losses in a sentencing hearing was a "special circumstance" which would make imposing a sentence of reparation inappropriate.
In relation to fines, the Court said at paragraph 67:
The combined influence of s 8 and 40 (2) of the Sentencing Act 2002 may mean that further upward movement in the level of fines can be expected. Certainly earlier levels of fines cannot be taken as a reliable guide.
The defendant was ordered to pay a fine, and an enforcement order was made to require remediation work to be done.
[2004] NZRMA 354
Costs
The Court can award costs against the unsuccessful party in a prosecution.
Costs awarded to a local authority
Section 4 of the Costs in Criminal Cases Act 1967 authorises the Court, when a defendant is convicted subject to any regulations made under the Act, to order the defendant to pay such sum as it thinks just and reasonable towards the costs of the prosecution.
There is a maximum scale of costs in the schedule to the Costs in Criminal Cases Regulations 1987. The scale in the schedule for conducting a prosecution for each half-day or part half-day is a maximum of $226. If the defendant pleads guilty, for each half-day or part half-day the maximum is $113.
There is power under s 13(3) of the Costs in Criminal Cases Act for the Court to make an order for the payment of costs in excess of the scale if the Court is “satisfied that, having regard to the special difficulty, complexity, or importance of the case, the payment of greater costs is desirable”.
Case example N
Interclean Industrial Services Ltd v Auckland Regional Council
Interclean pleaded guilty to contravention of s 15(1)(b) and contravention of an abatement notice.
Environment Court Judge Treadwell fined Interclean $7,500 for each charge and in addition ordered it to pay solicitors’ costs of $7,500 and analysts’ fees of $5,508.09 The total costs of the solicitor acting for the Auckland Regional Council was $10,861. The evidence of one of the principal witnesses for the Council had to be taken before a court registrar because the witness was about to leave New Zealand on a permanent basis.
Judge Treadwell found that about $3,000 of the legal costs incurred was attributable to the taking of this witness’s evidence and there was no reason why Interclean should pay for the Council ’s costs for the taking of this evidence. Judge Treadwell ordered Interclean to pay the balance costs of $7,500.
Interclean appealed and sought variation of the sentence to impose an order for scale costs in substitution for the award of $7,500.
In the High Court, Justice Randerson considered whether the legal costs of prosecution can be regarded as a cost or expense incurred in “avoiding, remedying or mitigating adverse effects on the environment” in terms of s 314(1)(d). The Council argued that the prosecution could be regarded as part of the overall enforcement regime adopted by the RMA and the prosecution “avoids” adverse effects on the environment by its deterrent effect on Interclean, as well as others. The Council also relied on Machinery Movers as authority for the proposition that an innovative approach should be taken to sentencing, not only to punish offenders but also to achieve economic and educative goals, and the Court should ensure that as far as practicable the costs of pollution are borne by the polluter and not by the community at large.
Randerson J held that the Court on a prosecution under the RMA does not have the power by the combined operation of s 339(5) and s 314(1)(d) to order the defendant to pay the legal costs of bringing the prosecution because:
(a) the focus of s 314(1)(d) is on the recovery of costs and expenses incurred in avoiding, remedying or mitigating adverse effects on the environment where there has been a failure to comply (inter alia) with an abatement notice or other obligations under the Act
(b) the purpose of s 314(1)(d), as clarified by s 314(2), is the recovery of the direct costs of avoiding, remedying or mitigating the adverse effects as well as the indirect costs of investigation, supervision and monitoring of those effects
(c) orders made under s 314(1)(d) are intended to be compensatory, and the deterrent effect of the sentence flows principally from the penalties imposed under s 339
(d) the Costs in Criminal Cases Act applies to RMA prosecutions.
The Council receives 90% of the fine to help cover the costs of the prosecution.
Randerson J also considered whether the case justified an award of costs beyond the scale prescribed by the Costs in Criminal Cases Regulations and found that it did not. Because there was a clear relationship between the disputed costs and the level of fines imposed, Randerson J remitted the matter to the District Court for determination of the issue as to whether the fines should be increased as a result of the High Court decision.
In the District Court, Judge Treadwell increased the fine by $2,000 on each charge and was not prepared to increase the fines any further because the case had gone to appeal and had been remitted back.
18/04/00, Randerson J, HC Auckland A198/99
Case example O
Auckland Regional Council v Haines House Removals Ltd
Haines House Removals pleaded guilty to contravention of subsections 12(1)(c) and (e). Haines had cleared a path across a reef on the foreshore adjacent to a property in Milford to facilitate the removal of a house by barge for transportation to Northland.
The costs sought by the Council included an order of costs above-scale in terms of s 13(3) of the Costs in Criminal Cases Act on the grounds that the case was of special importance because of the severity and calculated nature of the unlawful act.
Environment Court Judge Whiting accepted that the case was of some importance but not of special importance, and that there was no jurisdiction to make an award greater than the scale allowed in the Costs in Criminal Cases Regulations.
The Council also sought costs of approximately $7,000 for staff time under s 314(1)(d). Judge Whiting determined on the basis of the High Court decision in Interclean that he had no jurisdiction to award costs for expenses incurred by a local authority in respect of its officers engaged in preparing for a prosecution.
Judge Whiting, however, took into account the costs of prosecution in assessing the amount of the fine, and noted that this was the principle that caused Justice Randerson to remit Interclean back to the District Court.
11/08/00, Judge Whiting, DC Auckland CRN 9044013674-5
Costs awarded to the defendant
Section 5 of the Costs in Criminal Cases Act authorises the Court, when any defendant is acquitted of an offence or where the information charging the defendant with an offence is dismissed or withdrawn, whether upon the merits or otherwise, subject to any regulations made under the Act, to order that the defendant be paid such sum as it thinks just and reasonable towards the costs of the defence.
The schedule to the Costs in Criminal Cases Regulations referred to in 7.9.1 above applies and s 13 of the Costs in Criminal Cases Act, which allows the scale to be exceeded if the Court is “satisfied that, having regard to the special difficulty, complexity, or importance of the case, the payment of greater costs is desirable”, also applies.
Section 5 of the Costs in Criminal Cases Act provides that the Court, in deciding whether to grant costs and the amount of any costs, shall have regard to all relevant circumstances and in particular, where appropriate, to whether:
- the prosecution acted in good faith in bringing and continuing the proceedings
- at the commencement of the proceedings the prosecution had sufficient evidence to support the conviction of the defendant in the absence of contrary evidence
- the prosecution took proper steps to investigate any matter coming into its hands which suggested the defendant might not be guilty
- generally the investigation into the offence was conducted in a reasonable and proper manner
- the evidence as a whole would support a finding of guilt but the information (charge) was dismissed on a technical point
- the information (charge) was dismissed because the defendant established (either by the evidence of witnesses called by the defendant or by the cross-examination of witnesses for the prosecution or otherwise) that he or she was not guilty
- the behaviour of the defendant in relation to the acts or omissions on which the charge was based and to the investigation and proceedings was such that a sum should be paid towards the costs of his or her defence.
Points to watch
Auckland Regional Council v Horticultural Processors Ltd and Others
Judge Kenderdine dismissed the charges against three of the four defendants in Auckland Regional Council v Horticultural Processors Ltd and Others. Mr Smith, a defendant who had had the charges against him dismissed, sought costs. Mr Smith argued that there should be payment of costs in excess of the scale pursuant to s 13 of the Costs in Criminal Cases Act 1967 because of the special difficulties, complexity and importance of the case.
Judge Kenderdine found that the prosecution had acted in good faith in bringing the proceedings. However, Judge Kenderdine stated, at page 10:
I have grave concern that he [Mr Smith] is now bearing the costs of a criminal prosecution from a council concerned about the toxic effects of the discharge which they deliberately allowed to continue for at least five days after it was brought to their attention – merely in order to press home the charges to HPL. If the slurry was so dangerous it does not seem reasonable that the Council allowed it to be dumped for so long and then proceed to charge Mr Smith with an offence of strict liability.
Judge Kenderdine awarded Mr Smith costs of $4,000 plus GST.
6/10/94, Judge Kenderdine, DC Henderson CRN 2090016530
Points to watch
Otago Regional Council v Meadow Fresh Foods (Otago) Ltd
Meadow Fresh Foods operates a milk factory in Dunedin. The Otago Regional Council prosecuted Meadow Fresh Foods for discharge of caustic soda into a stream.
A 200-litre drum of caustic soda solution was delivered to the Meadow Fresh Foods premises by truck. The drum was dropped during unloading and caustic soda was released and began to flow towards an open stormwater drain (which runs alongside an internal road to a mud-trap and to a stream). Meadow Fresh Foods staff collected the spilt material behind an improvised dam. The Fire Service arrived within minutes of having been called and assumed control of the site. The City Council dangerous goods inspector also arrived, and discussions took place between the dangerous goods inspector and the Fire Service about disposal of the spilt material.
The Court held that the actual cause of the discharge was the Fire Service’s act of putting water on the spilt material, which caused the dam that had been containing the material to fail and allowed the material in a diluted form to enter the stormwater drain and then the stream. The charges were dismissed.
The Court held that the disposal of the spilt material, which had been effectively contained by the actions of a company employee, was taken out of his hands. He had been ordered to leave and there was evidence he was not consulted about what should be done. He deferred to the authority of those who assumed control and appeared to know what to do. It was not a case of a passive failure to act.
Meadow Fresh Foods applied for costs against the Council. Its total solicitor and client costs and disbursements came to approximately $17,500. The Court ordered the Council to pay $14,000 costs.
The Court in awarding costs against the Council held that the Council did not take proper steps to investigate, and a more thorough investigation would have revealed that those responsible for the discharge were either the New Zealand Fire Service or the Dunedin City Council dangerous goods inspector.
The case highlights the importance of thorough investigation.
15/11/94, Judge Skelton, DC Dunedin CRN 40120100711, 0712
