Penalties are imposed for offences in law. Penalties can be imposed either by way of prosecution under the Summary Proceedings Act 1957 (SPA) or by issuing an infringement notice under s343C of the RMA. To proceed under the SPA is to proceed 'summarily'. This means that the decision is made by a judge alone, unless the defendant elects to be tried by jury under s66 of the SPA.
The choice between prosecution and infringement is defined in s343B of the RMA:
Where any person is alleged to have committed an infringement offence, that person may either—
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Be proceeded against for the alleged offence under the Summary Proceedings Act 1957; or
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Be served with an infringement notice as provided for in s343C.
The primary purpose of a penalty is to punish the offender and to deter future offending, not only by the offender, but in the community at large. Further information on the purpose of a penalty and sentencing is set out under s7 of the Sentencing Act 2002. Prosecutions are better suited to deterrence due to the public nature of the proceedings and options available to the sentencing judge.
It is most important to remember that prosecution is not principally a tool to obtain compliance. In this sense, prosecution is not a 'last resort'. Even if the offender complied soon after detection, it might be entirely appropriate to prosecute. The key consideration in a decision to prosecute, is that the offence should have been avoided in the first place, and to leave it unpunished would be contrary to the public confidence in the laws and to their effectiveness. Examples of when it is appropriate to prosecute include where the offence was grossly negligent or caused serious avoidable harm, was for commercial gain, or was a repeat offence.
Offences
Standard of proof
When deciding to impose penalties, the enforcement officer (in relation to infringement notices) or local authority (in relation to prosecution) must be assured that all elements of the offence can be proven beyond reasonable doubt. This is a standard of proof that stipulates that a charge is not proven if the Court is not satisfied ‘beyond reasonable doubt’ that the accused committed the offence based on the evidence provided to them.
By contrast, defences need only be proven on the balance of probabilities (i.e. that the circumstances or situation on which the defence relies 'more likely than not' existed).
Strict liability
Under s341 of the RMA, the breach of s9 and s11-15 of the RMA are strict liability offences. This means that it is not necessary to prove that the defendant 'intended' to commit the offence.
Breach of an enforcement order or abatement notice, and the obstruction of an officer, are common offences that are not listed under s341 of the RMA. Arguably, this means they require proof of intention to commit the offence. However, in the absence of statutory direction, a Court may still find that an offence does not require such proof. This is referred to as 'strict liability of the Mackenzie type' (after a case of that name, being effectively a third category of liability). Refer to other enforcement guidance notes for further information.
One of the grounds on which a Court may make this classification is that the difficulties of proving intention tend to point towards strict liability.
Proving intention in terms of an enforcement order or abatement notice, would involve showing:
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knowledge of the existence of the order or notice
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intentional or deliberate conduct that is non-compliant with the order or notice.
While knowledge may be easy to prove, non-compliance with a notice or order is an omission. Actions are usually a conscious choice, but an omission may be due, for example, to factors beyond a person’s control or to the inaction of a person instructed to comply in the defendant’s absence.
This issue was highlighted in the case Waikato Regional Council v Huntley Quarries Ltd [2004] NZRMA 32, where the Court found that the breach of an abatement notice was strict liability of the Mackenzie type. In this case, the Court commented that:
If it was sufficient in an abatement notice case for a defendant merely to raise some evidence of lack of intention, and for the informant then to have to prove intention affirmatively beyond reasonable doubt, this would in my view be asking the prosecution to prove matters that are often peculiarly within the province of the defendant, and would be unrealistic. It would also serve to defeat the purpose of the legislation by making abatement notices for offences of omission very difficult to enforce.
The issue was also dealt with by the Courts in Auckland Regional Council v Biogas [1993] CRN 2048024848/49; [1993], AP 199/93; [1994] CA 526/93; [1994] CRN 2048024848/49 , where a question arose as to whether the intention to commit the offence of discharging waste to a stream could be imputed because of wording in the offence, despite s341(1) of the RMA. District and High Court conclusions that it had not been proven the person was aware of the contaminants being discharged (a test supposedly required by the wording "allowed to escape" in the s2 RMA definition of discharge) were subsequently overturned in the Court of Appeal. It is not necessary that the party have ‘control’ over the contaminated site or system at point of discharge to prove a breach of section 15 of the Resource Management Act 1991 (URS New Zealand Limited v District Court at Auckland [2009] NZRMA 529).
Multiple charges for the same conduct
One act or omission may, on its facts, constitute a number of offences specified under one or more Acts of Parliament. For example, the removal, trimming or damaging of a tree or group of trees might be a breach of one or more of the following:
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consent conditions or plan rules
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an operative or proposed plan
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the Conservation Act 1987, the Reserves Act 1977, or the QEII National Trust Act 1977.
In another example, the failure to maintain or remedy a visually objectionable building might be a breach of either:
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a notice to fix under the Building Act 2004
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an abatement notice under the RMA.
Each of these contraventions could result in separate charges.
A local authority is entitled to lay each charge, though dealing with the same act or omission, and a Court is entitled to hear each. However, conviction should occur only once in relation to the same act or omission that gave rise to charges being laid.
In relation to infringement offences, the High Court has suggested that although an infringement notice does not result in conviction, to issue more than one infringement notice would be to penalize the same act or omission multiple times. That may be unreasonable but it will depend on the circumstances of the case.
If prosecuting, the situation is different because the Court and counsel can agree during proceedings which charges to proceed with. However, care should be taken not to waste the Court’s time or put the defendant to unnecessary cost by laying charges 'just in case’. To avoid claims that the proceedings are oppressive or vexatious, there should be some good reason why the local authority has not pursued only its preferred charges from the outset. Examples include the following situations:
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where it could be reasonably argued that each charge represented significant differences in the acts or omissions subject to prosecution
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where the state of law was unclear or contentious in relation to liability or defences under the different provisions that were the subject of different charges
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where the sentencing outcomes on the different charges could be significantly different.
Some s338 offences do not match an infringement offence
Prosecution offences are set out in s338 of the RMA, and maximum penalties are stipulated in s339. Infringement offences and fines ('infringement fees') are set by regulation. Infringement offences are narrower, excluding for example the contravention of enforcement order, a breach of s15C of the RMA relating to dumping of radioactive material or storage of hazardous waste in a coastal marine area, and obstruction of an enforcement officer. The fines are also relatively small in comparison to the penalties which may be imposed in the context of prosecutions. This reflects the purpose of the infringement mechanism which is designed as a quick and efficient way of dealing with minor matters.
A limitation period of 12 months after the contravention became known, or should have become known, to the local authority applies to prosecution offences set out in s338.
The Crown can be served with infringement notices and can be prosecuted by a local authority, but as set out in sections 4(7) and 4(8) of the RMA, the Court may not sentence a Crown organisation to pay a fine in respect of an offence.
Where an offence has been committed that involves a breach of a resource consent, the Court may make an order that requires a consent authority to review a resource consent under s128(2) of the RMA. This review can be required instead of, or in addition to, the imposition of a fine and/or sentence. If as a result of a review, the authority finds that there are significant adverse effects on the environment resulting from the exercise of the consent the authority may cancel the consent under s132(4) of the RMA. The consent authority can also recover any costs associated with this review from the consent holder.
Offences, for which both the infringement offence procedure and prosecution are available, are identified below in italics. Offences not in italics are only available for prosecution.
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338. Offences against this Act— (1) Every person commits an offence against this Act who contravenes, or permits a contravention of, any of the following:
(1A) Every person commits an offence against this Act who permits a contravention of s15A or 15C (restrictions in relation to waste or other matter) (1B) Where a harmful substance or contaminant of water is discharged in the coastal marine area in breach of s15B, the following persons each commit an offence:
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In the case of a natural person, the maximum penalty for prosecution is two years imprisonment, $300,000 and $10,000 per day for a continuing offence. In the case of a person other than a natural person the maximum penalty for prosecution is $600,000 and $10,000 per day for a continuing offence. |
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(2) Every person commits an offence against this Act who contravenes, or permits a contravention of, any of the following:
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A fine not exceeding $10,000, and if the offence is a continuing one, a further fine not exceeding $1,000 every day (or part day) during which the offence continues |
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(3) Every person commits against this Act who -
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Maximum penalty for prosecution is a fine not exceeding $1,500 |
Deciding whether to prosecute or issue an infringement notice
Local authorities should consider the scale and nature of the offending when deciding whether to prosecute or to issue an infringement notice. Evidence of adverse effects and/or likely adverse effects should be collected and considered carefully. To help achieve consistency of decision-making, local authorities should put in place a policy or protocol on when infringement notices will be issued and when a prosecution is a more appropriate penalty for an offence.
The policy should consider the purposes and principles of sentencing: sentencing is the justice system’s way of determining the appropriate consequences of offending.
The purposes of sentencing generally, are broad. The Sentencing Act 2002 allows for a range of orders to rehabilitate offenders and provide restoration to victims. It also allows for consideration of any offers of amends, resulting for example from a restorative justice process.
Specifically in relation to penalties, sentencing is about punishment for an offence. As well as expressing the community's denunciation of conduct causing harm, the primary purpose of penalties is deterrence. The costs imposed through penalties are intended to make offenders specifically and the community generally internalise those costs against any perceived benefit of offending (the likelihood of detection is also a key factor in this equation).
An infringement notice imposes a relatively minor penalty and does not result in a conviction. Hence, it provides less deterrence, and should be used for less serious offending. Another reason to limit the use of infringement notices is that it reverses the usual onus on the local authority to prove the offence before a penalty is imposed. For infringement notices, the local authority’s evidence comes under scrutiny only after issuing the notice, and if the recipient requests a defended hearing. Repeat offending that results in mounting infringement fees should go before a judge instead.
The advantages of the infringement notice procedure are that it is swift, efficient and inexpensive unless challenged. However, the maximum penalty able to be imposed is still relatively small ($2,000 (for a natural person and $4,000 for other than a natural person).
Prosecution can achieve a lot more than the imposition of a higher penalty. The Court in sentencing may endeavour, through its statements that accompany conviction, to caution the community or particular groups about their present and future behaviour. Also, under the Sentencing Act 2002 the Court can:
- incorporate restorative elements that redress the harm done
- give victims and the community a chance to speak
- require efforts of the offender that go towards their rehabilitation.
