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A Study into the use of Prosecutions under the Resource Management Act 1991 - 2001-2005

Section 1: Introduction

Section 2: Background

Section 3: Executive Summary

Section 4: Data

Appendix 1: Numbers of prosecutions brought by each local authority for the second period

Appendix 2: Sentencing options

Appendix 3: Identification of sector for the highest fines 5-30 for second period

Appendix 4: Schedule of appeals for second period

Appendix 5: Schedule of prosecutions in which the restorative justice process has been used

Section 4: Data

Total number of prosecutions

The judgements, sentencing notes or details of 171 prosecutions under the RMA for the period between 1 July 2001 and 30 April 2005 were obtained and analysed. A two-stage process was used to obtain this information.

• The first stage was a search on two different databases which located 124 prosecutions.
• The second stage was contacting 13 local authorities [Regional councils: Auckland, Bay of Plenty, Canterbury, Hawkes Bay, Manawatu-Wanganui, Northland, Otago, Southland, Taranaki, Wellington and West Coast. Territorial authorities: Auckland City, Manukau City.] to locate further prosecutions. It was not practical to contact all local authorities. The second stage was undertaken because it was apparent from the search of the databases that a number of prosecutions were not recorded on these databases. The second stage located a further 47 prosecutions.

An effort has been made to locate all prosecutions for the period. The search process was more comprehensive for the report on prosecutions for the period covering 1991-2001. However, there may be a small number of prosecutions that have not been located.

Data presented by general activity and sector

This report analyses the prosecutions in two different ways: general activity and sector categories. The data includes both successful and unsuccessful prosecutions.

General activity

The offences are categorised based on the sections under which a conviction was entered if successful and the sections under which the prosecution was brought if unsuccessful. It is not uncommon for local authorities to lay charges under a number of different subsections of the RMA (eg, 15(1)(a) and 15(1)(b)) but the court will only convict on one charge for any given act. In some cases prosecutions resulted in convictions for breach of a number of different sections and in these cases all the sections are identified eg, breach of section 9(3) for illegal earthworks and breach of section 15(1)(b) for discharge of sediment to water. The sections of the RMA that correspond to each of the general activity categories are listed in Table 3.

Table 3: Sections of the RMA corresponding to general activity categories

Graph 1: General activity categories of prosecutions for second period*

See graph at full size

Note: This graph illustrates information contained in Table 4.

* The percentages add up to 99.7% and not 100% because of rounding. The 'actual figures' do not add up to 171 because for some prosecutions there was more than one category. This is explained in the paragraph before Table 3. The largest category of prosecutions for the second period is 43% for discharge of contaminants into water either directly or indirectly under sections 15(1)(a) and 15(1)(b) of the RMA. For the first period, discharge of contaminants into water was likewise the largest category of prosecutions and comprised 47%.

Table 4: General activity categories of prosecutions for second period - figures

Sectors

Those prosecuted (defendants) have also been grouped into seven sectors: agricultural; industrial; commercial; residential; local authority; pleasure; and other. Industrial includes factories, plants and landfills. [Industrial includes all activities that come within the definition in the RMA of "industrial or trade premises" and "industrial or trade process".] Commercial includes contractors and consultants. Local authority includes a LATE (local authority trading enterprise). Pleasure includes an offence of excavation of the seabed in the coastal marine to increase the depth of water so that the defendant could fit his boat alongside the jetty. There is only one case that falls in the sector 'other' and this is an activity undertaken by a Fish & Game Council.

Graph 2: Prosecutions by sector for second period

See graph at full size

Note: This graph illustrates information contained in Table 5.

The largest sector of prosecutions for the second period is agriculture (37%). The second largest sector is commercial (31%). In the first period the agriculture sector accounted for 18% of prosecutions. For the first period, commercial was the largest sector (41%) and the second largest was industrial (22%).

Table 5: Prosecutions by sector for second period - figures

Who is prosecuting?

All but one of the prosecutions has been brought by local authorities. The Maritime Safety Authority (now Maritime New Zealand) has successfully prosecuted for discharge of oil from a commercial fishing ship. The precise numbers of prosecutions brought by each local authority for the second period are listed in Appendix 1.

Graph 3: Prosecuting bodies for second period

See graph at full size

Note: This graph illustrates information contained in Appendix 1.

For both the first and second periods regional councils have undertaken the majority of prosecutions. In the second period, Auckland, Waikato and Southland regional councils laid about 43% of all prosecutions (60 of 140). See Appendix 1 for total figures. For the first period, of the prosecutions undertaken by regional councils, Auckland Regional Council undertook 33%, Waikato Regional Council undertook 9%, and Southland Regional Council undertook 7% (49% total).

Outcome of prosecutions

For the second period:

• in 82% of the prosecutions a guilty plea was entered (140 cases)
• convictions [This excludes cases where the defendant was convicted and discharged.] were obtained against the defendants in 90% of the prosecutions (154 cases)
• four defendants were convicted and discharged
• five defendants were discharged without conviction
• six prosecutions were dismissed
• two defendants received suspended sentences.

For the first period:

• in 80% of the prosecutions a guilty plea was entered (300 cases)
• convictions [This excludes cases where the defendant was convicted and discharged.] were obtained against the defendants in 87% of the prosecutions (326 cases)
• 14 defendants were discharged without conviction
• two defendants received suspended sentences.

For both the first and second periods, the data analysed does not include any prosecutions where the informations (charges) were withdrawn because in this situation there is usually no written decision available.

Sentencing

Sentencing is the process whereby a Court arrives at an appropriate penalty for offences. In addition to/instead of imposing a fine or term of imprisonment, the Court can make an enforcement order, a sentence of community service or periodic detention.

For the second period:

• in 21 prosecutions an enforcement order was made
• imprisonment was imposed in two cases. These two cases were the subject of appeals. The details are provided in Appendix 4
• in four prosecutions a sentence of community work was imposed. Details of these cases are in Appendix 2.

For the first period:

• in 36 prosecutions an enforcement order was made
• there were no terms of imprisonment imposed
• in eight prosecutions a sentence of community work was imposed. In three prosecutions a sentence of periodic detention ['Periodic detention' is now known as 'community work'.] was imposed.

Average fine

For the second period:

• the average individual fine imposed was $5,631
• the average total fine imposed under the RMA (per prosecution) was $8,167. A prosecution may consist of more than one fine. For example, in Waikato Regional Council v Valley View Ltd, [29/10/2001, Judge Thompson, DC Rotorua, CRN 0069005192, 5261, 9621, 9618.] there were four charges and a fine of $3,250 was imposed for each charge and therefore the total fine was $13,000.

For the first period:

• the average individual fine imposed was $4,400
• the average total fine imposed under the RMA (per prosecution) was $6,500.

Costs

The court can award costs to the successful party in a prosecution under section 13(3) of the Costs in Criminal Cases Act 1967. There is a maximum scale of costs in the schedule to the Costs in Criminal Cases Regulations 1987. The scale for a defended hearing is a maximum of $226 for each half-day and if the defendant pleads guilty, for each half-day the maximum
is $113.

The High Court in Interclean Industrial Services Ltd v Auckland Regional Council [HC Auckland, A 198/99, 18/04/00, Randerson J.] considered the issue of costs and held that the court on a prosecution under the RMA does not have power to order the defendant to pay the legal costs of bringing the prosecution. The High Court considered paragraph (d) of section 314(1) of the RMA and held that its purpose, as clarified by section 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 those effects. The court also held that the costs of prosecution could be taken into account in assessing the amount of the fine.

In both the first and second periods, in the majority of prosecutions costs have been awarded according to the scale. However, in a number of prosecutions during both periods an enforcement order was made requiring the defendant to pay part or all of the council's investigation costs. In the second period, the awards included sums of $7,233 in Hawkes Bay Regional Council v Rembrandt Fine Arts and $10,872 in Auckland Regional Council v Nuplex Industries Ltd.

Identification of sector for the 30 highest fines

For the second period:

• the highest fine imposed was $55,000 in Auckland Regional Council v Nuplex Industries Ltd [DC Auckland, CRN 2004066321, 18/03/2003, Judge McElrea.]
• identification of sector anddetails of the four highest fines are listed in Table 6. The next 26 highest fines are listed in Appendix 3 [There are four Auckland Regional Council cases for which there is no written sentencing decision available. The records provided by the Auckland Regional Council only include the total fines for these prosecutions. Some of these prosecutions may come within the top 30 but because records of the individual fines was not provided, these prosecutions have not been included in the top 30.] [Fine numbered 30 in Appendix 3 is $10,000. Fines of $10,000 have been imposed in a number of cases.]
• the total of the 30 highest fines was $609,200. The average of the 30 highest fines was $20,307.

For the first period:

• the highest fine imposed was $50,000 in Taranaki Regional Council v Petrocorp Exploration Ltd [DC New Plymouth, CRN 5043008689, 22/10/96, Judge Bollard.]
• the total of the 30 highest fines was $611,000. The average of the 30 highest fines was $20,367.

Table 6: The four highest fines categorised by sector for the second period

Graph 4: Prosecutions for the 30 highest fines by sector for the second period

See graph at full size

Note: This graph illustrates information contained in Table 7.

For the second period, the largest proportion of prosecutions occurred in the commercial sector, where 43% of the highest 30 fines were imposed. For the first period, the largest proportion of prosecutions occurred in the commercial sector, where 74% of the highest 30 fines were imposed.

Table 7: Prosecutions for the 30 highest fines by sector for the second period - figures

Appeals to the High Court and Court of Appeal against penalties and the outcome of the appeals

To date no local authority has appealed a penalty under the RMA.

For the second period:

• in five cases defendants appealed penalties
• in two of the appeals, the appellate Court reduced the penalties imposed, and in three of the appeals the appellate Court upheld the penalty; refer to Table 7. Refer to Appendix 4 for further details, including relevant case numbers relating to the Table. Where cases are omitted from Table 4 no monetary fine was imposed, and where they appear more than once, more than one person was charged in relation to the offence.

For the first period:

• in 18 cases defendants appealed penalties
• in 10 of the appeals, the appellate court reduced the penalties imposed, and in eight of the appeals the appellate court upheld the penalty.

Table 8: Appeals against sentence for the second period

Restorative justice

Restorative justice involves community-based processes to help empower victims to ask questions of the offender and where an offender can take responsibility for their offending, as an alternative to fines or loss of freedom. In the second period, the restorative justice process [The Role of Restorative Justice in RMA Prosecutions, Judge FWM McElrea, 27 July 2004,Resource Management Journal, Issue 3, Volume XII, November 2004.] was used in six prosecutions.

Details of these cases are in Appendix 5. The restorative justice process was not available under the RMA for the first period; the opportunity to use restorative justice was made possible by the arrival of the Sentencing Act in 2002.

Increase in penalties

During the second period, a number of judges when sentencing defendants have referred to the need to raise penalties, within the current range of tariffs, to achieve deterrence, for example:

In Auckland Regional Council v Smith [DC Auckland, CRN 2044013072, 26/09/02, Judge McElrea.] (fine of $10,000 and costs of $2,370), his Honour Judge McElrea in sentencing the defendant said:

"I have to have regard to the deterrent objectives of sentencing in this area. It is important that the farming community knows, understands and acts on its obligations not to pollute waterways of this land with dairy shed effluent. The Courts have been sending this message out for some considerable time and it is of concern that notwithstanding the fines that have been imposed new cases keep coming to light. In my view the level of total penalty here suggested by the informant is, if anything at the low end measured from the point of view of the need for an effective deterrent, and if these sort of offences continue despite the message given by the Court then the Courts will have to look at fines at a much higher level than have been imposed so far."

Judge Thompson in the BHE Farms Ltd & Holstein-Friesian Milk Co (fines of $20,000 and $15,000) reiterated the concern of Judge McElrea:

"I think I also need to say that in recent decisions, both Judge McElrea and myself have expressed concern that the general levels of fine for dairy effluent offences do not seem to have been sufficient to sustain, although they might once have been effective, the message to the industry that this is serious offending, that it is entirely within the industry's power to stop it and that if it does not then fines will have to be increased to a level where the deterrent is sufficient to make compliance commercially preferable."

Judge Thompson also noted that:

"The cumulative effects on the environment of this sort of offending is very significant and the industry must accept responsibility for it."

Judge Smith in Southland Regional Council v De Bruyn (fine of $16,000). [DC Invercargill, CRN 4025500128, 25/08/04, Judge Smith.]

"... wish to signal quite clearly that this Court may very well review the starting point for effluent discharge tariff on the next occasion it has the opportunity to do so.

What this case, and the other previous case the Court has dealt with today, signals is that the level of tariff to date has not had the impact in changing attitudes to contamination that had been anticipated by this Court when that tariff was set."