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Section 1: Executive Summary

This report relates to the judgments and sentencing outcomes of 260 prosecutions during the period 1 May 2005 to 30 June 2008 (the ‘third period’) under the Resource Management Act 1991 (RMA). This third period comprises three years and two months.

This report compares the analyses of prosecutions undertaken during the third period with analyses of prosecutions undertaken during the period 1 July 2001 to 30 April 2005 (the ‘second period’) and 1 October 1991 to 30 June 2001 (the ‘first period’).

Table 1: Analyses of prosecutions

  First period Second period Third period
Timeframe October 1991–30 June 2001
(9 years, 8 months)		 1 July 2001–30 April 2005
(3 years, 10 months)		 1 May 2005–30 June 2008
(3 years, 2 months)
Number of prosecutions analysed 375 prosecutions 171 prosecutions 260 prosecutions
Average number of prosecutions per year 39 45 82

Activity category

The largest general RMA activity category of prosecutions in the third period was 42% for discharge of contaminants into water either directly or indirectly under section 15(1)(a) and 15(1)(b) of the RMA. In both the first and second periods, this was also the largest general category of prosecutions, 47% for the first period and 43% for the second period.

Table 2: Largest activity category

  First period Second period Third period
Discharge to water, or onto land where may enter water 47% 43% 42%

Sector

The largest sector of prosecutions in the third period was agriculture at 43% (110) and the second largest sector was commercial 36% (94). In the second period, the largest sector of prosecutions was agriculture at 37% (64) and the second largest sector was commercial at 31% (53). For the first period, commercial was the largest sector at 41%, the second largest sector was industrial at 22% and agriculture was third at 18%.

In both the second and third periods, 43% of the 30 highest fines were imposed in the commercial sector. In the first period, 74% of the 30 highest fines were imposed in the commercial sector.

Table 3: Largest sector of prosecutions

  First period Second period Third period
All prosecutions within period Commercial sector 41% Agriculture sector 37% Agriculture sector 43%
Highest 30 fines within period Commercial sector 74% Commercial sector 43% Commercial sector 43%

Prosecuting bodies

For all three periods, regional councils undertook the majority of prosecutions. In the third period, Waikato undertook 17.4% of prosecutions (45), Canterbury and Otago each undertook 9.7% (25), Southland undertook 7.7% (20) and Auckland undertook 2.7% (7). For the second period, Auckland, Waikato and Southland undertook 43% of prosecutions (60) whereas for the first period the same councils undertook 49% of all prosecutions (184).

Table 4: Prosecuting bodies that have undertaken the majority of prosecutions

  First period Second period Third period
All prosecutions within period Auckland, Waikato and Southland regional councils
49%		 Auckland, Waikato and Southland regional councils
43%		 Auckland, Waikato and Southland regional councils
27.8%

Outcome of prosecutions

Table 5: Outcome of prosecutions

Outcome First period Second period Third period
Prosecutions where a guilty plea was entered 80% 82% 91%
Convictions were obtained against the defendant 87% 90% 93%
Defendants who were convicted and discharged 14 4 6
Defendants who were discharged without conviction None 5 161
Prosecutions that were dismissed None 6 2
Defendants who received suspended sentences 2 2 1
Prosecutions where an enforcement order was made 36 21 38
Sentences where imprisonment was imposed None 2 2
Sentences where periodic detention/community work was imposed 11 4 12
Highest fine imposed $50,000 $55,000 $86,500
Average individual fine imposed $4,400 $5,631 $7,221
Average total fine imposed $6,500 $8,167 $12,4632

Sentencing factors

Financial position of defendants

Section 40 of the Sentencing Act 2002 requires the Court to have regard to the financial position of an offender.

The study of prosecutions in the third period includes an analysis of the financial position of the defendant. This analysis was not undertaken in the first and second periods.

Table 6: Financial position of the defendant for the third period

Outcome Highest fine imposed Average individual fine imposed Average total fine imposed
Defendants with a good or very good financial position $86,500 $7,574 $13,322
Defendants with a poor financial position $13,500 $2,798 $3,918

Appeals

In the third period, there were nine appeals on sentence. It was found that in two cases the fines were reduced, in one case sentences of community work were vacated and fines imposed, and in four cases the Court upheld the penalty. Further to this, in one case the Court upheld the penalty and increased the reparation and in another case, where the defendants appealed both conviction and sentence, the Court held the fine was not manifestly excessive but directed that the information should be reheard in the District Court.

In the second period there were five appeals on sentence. The outcome was that two of the sentences were reduced and three upheld by the Court. In the first period there were 18 appeals on sentence. The outcome was that 10 of the sentences were reduced and eight upheld by the Court.

Restorative justice process

In the third period, the restorative justice process was used in 13 prosecutions and in the second period it was used in six prosecutions. The restorative justice process was not available under the RMA in the first period; the opportunity to use restorative justice was made possible by the introduction of the Sentencing Act in 2002.

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.

 

1 Details of the 14 cases in which the Court discharged defendants without conviction are listed in Appendix 2. Sixteen defendants were discharged without conviction in the third period in these 14 cases. In one case Canterbury Regional Council v Kerry Rush Earthmoving Ltd, Kerry Francis Rush, Ian Robin Rush, Rakanui Station Ltd and Timothy Wilding, three of the five defendants were discharged without conviction.

2 The average was calculated for the third period by dividing the total number of fines ($2,729,350) by 219 (total number of prosecutions in third period where a fine was imposed).

 

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