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A study into the use of prosecutions under the RMA 1991, 1 May 2005 - 30 June 2008

Section 1: Executive Summary

Section 2: Introduction

Section 3: Results

Appendix 1: Numbers of Prosecutions brought by Each Local Authority for the Third Period

Appendix 2: Sentencing Options

Appendix 3: Identification of Sector for the Highest Fines 5–30 for the Third Period

Appendix 4: Appeals Against Sentence for the Third Period

Appendix 5: Prosecutions in the Third Period in which the Restorative Justice Process has been used

Section 3: Results

Methodology

The methodology for this report involved obtaining and analysing the judgements and sentencing outcomes⁶ of 260 prosecutions under the RMA for the period from 1 May 2005 to 30 June 2008.⁷ A two-stage process was used to obtain this information. A similar process was undertaken to collect prosecution data for the first and second periods.

• The first stage involved a search on two different case law databases which located 198 prosecutions.

• The second stage was contacting 30 of the 85 local authorities⁸ to locate further prosecutions. These 30 local authorities included all regional councils, the unitary authorities and most of the territorial authorities that had prosecuted in the first and second periods. 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 62 prosecutions.

An effort has been made to obtain the judgements, sentencing notes or details of all prosecutions for the third period. However, details have not been obtained for a small number of prosecutions for various reasons which include: records have not been kept by some local authorities; or the records could not be located easily; or the local authorities contacted were too busy to find the records.

The data for this report was inputted into an Excel spreadsheet using a separate row for each defendant unless two or more defendants were related and where the Court took this into consideration when sentencing (eg, a company and the director of the company). The number of prosecutions is based on this analysis of individual prosecutions and not the actual number of decisions which is a smaller number.

Data presented by general activity and sector

This report analyses the prosecutions by general activity and by sector. 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 often only convict on one charge for any given act/incident. 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 8. In the third period there were no prosecutions for breach of section 11 for restrictions on the subdivision of land.

The prosecutions analysed for the three periods are all prosecutions for offences where the maximum penalty is a fine of $200,000 or two years imprisonment. Prosecutions brought under section 338(2) and section 338(3) are minor offences and have lower maximum penalties,
eg, obstruction of an enforcement officer and contravention of an excessive noise direction. The prosecutions for these minor offences have not been included in the analyses because their inclusion, could distort the main picture of prosecution activity. In the third period there were in fact no prosecutions brought under section 338(2) and section 338(3). In the first and second periods there were a few prosecutions brought under section 338(2) and section 338(3).

Table 8: Prosecutions by RMA general activity for the third period

Note: The ‘actual figures’ do not add up to 260 because for some prosecutions there was more than one category as explained in the first paragraph under the heading 'General activity'.

The graph below shows the different activities of prosecutions over the third period as a percentage of the total number of prosecutions.

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

Sectors

Those prosecuted (defendants) have been grouped into six sectors: agricultural;⁹ industrial;¹⁰ commercial;¹¹ residential; local authority; and other.

The largest sector of prosecutions for the third period is agriculture (43%) and the second largest sector is commercial (36%). In the second period the largest sector of prosecutions was also agriculture (37%) and the second largest sector was commercial (31%). However in the first period the agriculture sector was only the third largest sector accounting for 18% of prosecutions and it was commercial that was the largest sector (41%) with industrial the second largest sector (22%).

Table 9: Prosecutions by sector

Table 10: Prosecutions by sector for third period

Figure 2: Prosecutions by sector for third period

Who is prosecuting?

All of the prosecutions in the third period have been brought by local authorities. The numbers of prosecutions brought by each local authority for the third period are listed in Appendix 1.

In all three periods, the regional councils have undertaken the majority of prosecutions although there has been some variation in the councils taking the most prosecutions. In the third period, Waikato brought 17.4% of prosecutions (45), Canterbury and Otago each brought 9.7% of prosecutions (25), Southland brought 7.7% of prosecutions (20) and Auckland brought 2.7% of prosecutions (7). In the second period, Auckland, Waikato and Southland brought 43% of prosecutions (60) whereas in the first period the same councils undertook 49% of all prosecutions.

Figure 1: Prosecuting bodies for third period

Text description of figure 1

Figure 1 identifies the number of prosecutions completed by local authorities within the study period 1 May 2005 – 30 June 2008. The number of prosecutions by regional councils is shown on the left of the dashed line with territorial authorities shown on the right of the dashed line. All regions except Wellington had more than 5 prosecutions with most ranging from 10 to 20. Waikato region had the highest number of prosecutions with 45. The number of prosecutions for territorial authority’s is lower with 14 having 5 or less prosecutions, with the remaining 7 territorial authorities ranging from 6 to 14 prosecutions with Manakau City having the highest number. The number of prosecutions by local authority is also identified in a table in Appendix 1.

Outcome of prosecutions

In the third period:

• in 91% of the prosecutions a guilty plea was entered (237 cases)

• convictions were obtained against the defendants in 93% of the prosecutions (242 cases)

• six defendants were convicted and discharged

• 16 defendants were discharged without conviction

• two prosecutions were dismissed

• one defendant received a suspended sentence.

In the second period:

• in 82% of the prosecutions a guilty plea was entered (140 cases)

• convictions 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.

In the first period:

• in 80% of the prosecutions a guilty plea was entered (300 cases)

• convictions were obtained against the defendants in 87% of the prosecutions (326 cases)

• no defendants were convicted and discharged

• 14 defendants were discharged without conviction

• no prosecutions were dismissed

• two defendants received suspended sentences.

Table 11: Outcome of prosecutions

In all three periods, the data analysed does not include any prosecutions where the charges were withdrawn because in this situation there is usually no written decision available.

In all three periods there were a number of cases where defendants were convicted and discharged where there were related defendants, eg, husband and wife or a company and its director. This has not been included in the analysis because the Court took an overall approach to sentencing, eg, Bay of Plenty Regional Council v Kelnic Farms Ltd and Kelvin Wallace¹² prosecution for discharge of dairy effluent against the farm owner, Kelnic Farms Ltd and its director, Mr Wallace. Kelnic Farms Ltd was convicted and fined $3,500 plus Council expenses of $360 and Wallace was convicted and discharged.

Sentencing

Sentencing is the process whereby a Court arrives at an appropriate penalty for offences.

The leading case on sentencing principles under the RMA is Machinery Movers Ltd v Auckland Regional Council.¹³ In that case the Court noted the legislative regime under the RMA with its higher scale of penalties in comparison to the Water and Soil Conservation Act 1967 and commented:¹⁴

“In combination, these changes constitute a clear legislative direction to the Courts to ensure that higher penalties are imposed which will have a significant deterrent quality. If fines are too low, they will be regarded as a minor licence fee for offending.”

The deterrent aspect of penalty was noted in the Court of Appeal judgment in R v Kiwi Drilling Company Ltd and Smith¹⁵ where the Court recognised the need for a sentence which is both specifically and generally deterrent. The Court held:

“However, the nature of the offending, giving rise as it does to a real and extant risk of water pollution, coupled with Mr Smith’s attitude to the offending, calls for a sentence which is specifically deterrent as well as generally deterrent. Such a sentence must be set at a level which will create a real disincentive to him and his company to ever endanger the environment again and will also affect the attitude of the public in relation to such matters.”

The principles of sentencing endorsed in Machinery Movers are generally stated as:

1. the nature of the environment affected
2. the extent of the damage
3. the deliberateness of the offence, and
4. the attitude of the defendant.

In addition to these factors, when sentencing corporations convicted of environmental offences the Court should consider the following matters:

1. the size, wealth, nature of operations and power of the corporation
2. the extent of attempts to comply
3. remorse
4. profits realised by the offence
5. criminal record or other evidence of good character.

Judge McElrea in Waitakere City Council v Gionis¹⁶ quoted the factors from the Machinery Movers case and noted:¹⁷

“The only gloss that I would add is that even where the defendants are individuals or partnerships and not corporations, the second list of factors of the two lists is still relevant – with the exception of the first item (size, wealth, nature of operations and power of the corporation); instead, the more general question must be dealt with of the defendant’s ability to pay a fine having regard to their net asset and income position.”

Sentencing Act 2002

The High Court in Selwyn Mews Ltd v Auckland City Council¹⁸ held that the sentencing principles established in Machinery Movers continue to have application but must now be read in light of the provisions of the Sentencing Act 2002. The High Court noted that:

“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).”

In summary, the Court said that the principles under section 8 will also be relevant particularly:

1. Section 8(a) – Gravity of the offending and the degree of culpability involved and 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.
2. Section 8(b), (c) and (d) – Seriousness of the offence and penalties.
3. Section 8(e) – Consistency in sentencing levels.
4. Section 8(f) – Effect on victims where applicable.
5. Section 8(h) and (i) – Particular circumstances of the offender.
6. Section 8(j) – Outcomes of restorative justice processes – entirely new principle. Not relevant to this case.
7. Section 8(j) and 10 are relevant where there are issues about mitigating any adverse effects on the environment such as repairing damage or clean-up work.

The High Court held that:

“aggravating and mitigating factors under s9 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: s9(4).”

Under section 9(2) of the Sentencing Act 2002, an early guilty plea, remorse and good character are also relevant. These factors are principles enunciated in Machinery Movers.

The High Court in the Selwyn Mews case held that in environmental cases, fines will most often be the appropriate penalty.

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 analysis of the prosecutions for the third period includes the financial position of the defendant. This analysis was not undertaken for the first and second periods.

In the third period, the prosecutions were divided into three categories: very good, good and poor. The category 'good' has been applied where the Court held that the defendant was in a position to pay a fine. In some cases the Court has referred to this as a 'neutral' position.

In Auckland City Council v North Power Ltd¹⁹ a prosecution for clearance of indigenous vegetation in contravention of section 9(1), his Honour Judge McElrea in sentencing the defendant held that:

“Section 40 of the Sentencing Act requires the Court to have regard to the financial position of an offender whether that has the result of increasing or decreasing the amount of any fine. The statute clearly envisages that fines should be fixed at a level which is both fair and meaningful to the particular defendant having regard to its particular financial position.”

In Waikato Regional Council v Plateau Farms Ltd,²⁰ the defendant appealed the sentence imposed in the District Court of $35,000 for discharge of dairy effluent. The High Court dismissed the appeal. One factor considered by both the District and High Courts was the financial position of the defendant.

The High Court considered the appellant’s argument that there was disparity between the fine imposed on the sharemilker of $500, who was in a poor financial position and the fine imposed on the appellant, a corporate dairy farm owner. The High Court held that in determining the amount of the fine, the financial capacity of the appellant is relevant:

“Corporate landowners will generally have a far greater financial capacity than sharemilkers. Such factors are plainly relevant in ensuring any fine is meaningful. If a fine is to provide a real deterrence, consistent with the principles of accountability, promoting a sense of responsibility and deterrence as set out in s 7(1) of the Sentencing Act, this may require the Court to make a significant distinction between defendants depending on their particular circumstances. When all relevant circumstances are considered, a disparity may be appropriate and justified. There is a risk that, if the Court did not make an appropriate distinction, either sharemilkers would be financially crippled by heavy fines, or corporate landowners would view fines as a modest tax for environmental pollution.”

Table 12: Financial position of defendants in the third period

Table 13: Financial position of defendants in each sector

Culpability

The deliberateness of the offence is one of the sentencing factors identified in the Machinery Movers case.

The analysis of the prosecutions in the third period includes the Court’s assessment of the culpability of the defendant. This analysis was not undertaken for the first and second periods.

The prosecutions were divided into seven categories as set out in Table 14. In cases where there is more than one defendant, the Court often apportions responsibility. In some cases assessment of culpability for each defendant is quite different. One example is Rodney District Council v Turley Earthmoving Ltd & Brown,²¹ a prosecution for a cleanfill activity in breach of section 9(1). The earthworks contractor, Turley Earthmoving, was instructed by the property owner, Christopher Brown, to deposit fill on Brown’s property. Brown’s land and also his neighbour’s land was damaged because the work was done without proper engineering works. Judge McElrea held that culpability of Turley Earthmoving was at the top end of scale and was “serious environmental offending of a deliberate nature on a grand scale”. Turley Earthmoving was fined $35,000 and ordered to pay costs of $15,000 to Council for a report on the earthworks and reparation of $40,000 to Brown and to a neighbour. The Court held that Brown had no expertise in earthmoving and was reliant on Turley Earthmoving and had been misled by it’s Director. Brown was fined $7,500 and ordered to pay costs of $1,380.

Table 14: Culpability of prosecutions for the third period

Penalties other than fine

In addition to or instead of imposing a fine or term of imprisonment, the Court can make an enforcement order, a sentence of community service or periodic detention.²²

Table 15: Penalties other than fine

Average fine

The average fines are categorised into individual fine and total fine. That is because a prosecution may consist of more than one fine. For example, in Northland Regional Council v McBreen Jenkins Construction Ltd²³ there were two charges and a fine of $22,500 was imposed for each charge and the total fine was $45,000.

In the third period:

• the average individual fine imposed was $7,221. The average total fine imposed under the RMA (per prosecution) was $12,463.

In the second period:

• the average individual fine imposed was $5,631

• the average total fine imposed under the RMA (per prosecution) was $8,167.

In the first period:

• the average individual fine imposed was $4,400

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

Table 16: Average fine

Table 17: Prosecutions by sector for third period – average, maximum and minimum total fines²⁵

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 that can be awarded 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 a maximum of $113 for each half-day if the defendant pleads guilty.

The High Court in Interclean Industrial Services Ltd v Auckland Regional Council²⁶ 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 Auckland City Council v Brian Hudson and BH Property Investment Ltd,²⁷ Judge McElrea in sentencing the defendants said he would take the Council costs of $7,000 into account by acknowledging that approximately half of the penalty appropriate for Mr Hudson could be attributed to this element of costs. In that case the Council at the sentencing hearing had initially proposed that it wanted a separate award of costs. The Judge asked if the Council really wanted a separate award of costs and pointed out that there would be a greater deterrent value in the costs being paid as a fine rather than reducing the fine by offsetting an allowance for costs. The Council agreed with this.

In the majority of prosecutions across the three periods costs have been awarded according to the scale. For the first period, large costs awards were more frequently made and this was usually done by agreement between the prosecution and the defence. For example in the Bay of Plenty Regional Council v Tasman Pulp & Paper Company Ltd²⁸ case, Tasman Pulp was prosecuted for the discharge of sulphur compounds into the air on three dates. The defendant was convicted and fined $23,000 and by agreement was ordered to pay solicitors costs of $17,206. In the second and third periods large costs awards have only been imposed in a few cases.

In the third period, the costs awarded include the sum of $23,800 payable by each of the two defendants in Waikato Regional Council v Hydro Energy (Waipa) Ltd and Neal²⁹ and $20,000 from the Auckland Regional Council v PVL Proteins Ltd³⁰ case.

In PVL Proteins Judge McElrea said when making the $20,000 award that this was a contribution to costs actually and reasonably incurred. His Honour for the jurisdiction to make the order quoted the following paragraph from Interclean:

“In my view, each case must be considered on its own facts. I do not accept the appellant’s submission that it is necessary for the prosecutor to demonstrate the case is one of the special difficulty, complexity, or importance when compared with other prosecutions of the same type. The question is whether, having regard to the general run of criminal cases, the particular case is one of the special difficulty, complexity or importance. Just as murder trials are not necessary complex or difficult, summary cases are not always straightforward and may give rise to unusual complexity. Prosecutions under s 338 may often be of some difficulty or complexity but will not always be so.”

Judge McElrea then said:

“That is very helpful comment. Prosecutions under s 338 in my view are often of some difficulty and complexity, and this case is one of them. Compared to the general run of criminal cases there is much more work, much more complexity and sometimes importance to the community, in this sort of prosecution work. I think it is appropriate that some allowance be made for that.”

Identification of sector for the 30 highest fines

In the third period:

• the highest fine imposed was $86,500 in Waikato Regional Council v Hydro Energy (Waipa) Ltd and Neal³¹

• identification of sector and details of the four highest fines are listed in Table 19; the next 26 highest fines are listed in Appendix 3

• the total of the 30 highest fines was $1,114,250; the average of the 30 highest fines was $37,142.

In the second period:

• the highest fine imposed was $55,000 in Auckland Regional Council v Nuplex Industries Ltd³²

• the total of the 30 highest fines was $609,200; the average of the 30 highest fines was $20,307.

In the first period:

• the highest fine imposed was $50,000 in Taranaki Regional Council v Petrocorp Exploration Ltd³³

• the total of the 30 highest fines was $611,000; the average of the 30 highest fines was $20,367.

Table 18: Thirty highest fines

Table 19: The four highest fines categorised by sector for the third period

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

Table 20: Prosecutions for the 30 highest fines by sector for the third period

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

In the third period there were 10 appeals (refer to Appendix 4):

• In four cases defendants appealed conviction and sentence. In five cases defendants appealed sentence only. In one case Canterbury Regional Council appealed the sentence –the first time a Council has appealed a sentence under the RMA.³⁸

• In two of the appeals, the fines were reduced, in one case the High Court vacated sentences of community work and imposed fines, in four cases penalties were upheld, in one case the Court upheld the penalty and increased the reparation and in one case where the defendants appealed both conviction and sentence the Court held the fine was not manifestly excessive but directed the information should be reheard in the District Court.

In the second period there were five appeals:

• In one case the defendant appealed both conviction and sentence. In four cases defendants appealed sentence only.

• In two of the appeals, the penalties were reduced, and in three of the appeals penalties were upheld.

In the first period there were 18 appeals:

• In all 18 cases defendants appealed sentence.

• In 10 of the appeals, the penalties were reduced, and in eight of the appeals the penalties were upheld.

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 third period the restorative justice process³⁹ was used in 13 prosecutions. Details of these cases are in Appendix 5. In the second period, the restorative justice process was used in six prosecutions.

The restorative justice process was not available under the RMA for the first period (October 1991 to 30 June 2001) as the opportunity to use restorative justice was made possible by the introduction of the Sentencing Act in 2002.

In Auckland City Council v Paul Edward McArthur,⁴⁰ a prosecution for construction of a building in breach of section 9 of the RMA, the defendant claimed that it had used a restorative justice process. Judge McElrea said that a restorative justice process had not been used and explained why:

“Counsel have suggested that there has been restorative justice processes followed here, but in discussion with the Bench it is agreed that what happened cannot be said to be a restorative justice process. That process involves a meeting of parties and is described in a number of publications including the Salmon Lecture 2004 published by the Resource Management Law Association. No such meeting or process occurred here, in part because the Council officer involved could not see how it would be easy to define the parties that might attend such meeting. I have said to counsel that in future if such a process is considered and the Court is advised, the Court can assist in appointing a restorative justice facilitator with appropriate training and that person would help bring together the relevant parties.

The other benefit of the restorative justice process when it is followed is that the Court receives an authenticated report from an independent person rather than having to rely on what is said by the parties to the case about what happened.”

In Manukau City Council v Claxton Tree Services Ltd,⁴¹ Judge McElrea criticised the Council for the dominant part that its officer had taken at the restorative justice conference. The Judge said:

“(i) It is not up to the informant to run a restorative justice conference or try and dictate the agenda. Any informant that does that fails to understand the participatory nature of restorative justice. (ii) One of the real benefits of restorative justice in the RMA context is that it enables the parties directly affected by offending ... to attend a meeting and to express their views and participate in a discussion about the nature of the wrongdoing and what is required to put it right. Those, in my view, are the people whose views are most important, not the views of a Council officer.”

Increase in penalties

In Waikato Regional Council v Wallace Corporation Ltd,⁴² Justice France noted that it is apparent that there has been an upward shift in the level of some fines. Justice France referred to Auckland City Council v North Power Ltd,⁴³ a prosecution for clearance of indigenous vegetation in contravention of section 9(1), where his Honour Judge McElrea in sentencing the defendant disagreed with the submission by counsel for the defendant that the Waitakere City Council v Hertzke⁴⁴ case was a more serious case. His Honour referred to the increase in the level of fines:⁴⁵

“There is, however, a further point to be made. That decision is now nearly eight years old. The Court of Appeal had before it a list of offenders which included obvious industrial users and noted that, at that time, the fine in Machinery Movers of $25,000 ‘was about the highest yet imposed’.

Matters have moved on since 1996 when fines appear not to have exceeded 12.5% of the statutory maximum ($200,000) – ie, only the lowest one-eighth of the available range was being used. There have been, in more recent years, a considerable number of fines in excess of the Machinery Movers figure. In Auckland Regional Council v Westgate (Auckland District Court, 30 June 2000, Whiting DCJ) fines and costs amounting to $103,800 were imposed on three defendants in relation to earthworks offences. And I am aware of at least seven occasions in the last two years when fines between $25,000 and $55,000 have been imposed. On most occasions there were also other elements of penalty that were part of the sentence, including financial elements. Those fines have covered a diverse range of activities from the felling of gum trees in a subdivision area, Waitakere City Council v Adams ($35,500 and $9,962 other costs); illegal earthworks, Waitakere City Council v Gionis (total fines $38,000 plus other penalties of $3,650); the escape of industrial odours, ARC v Nuplex Industries Limited ($55,000 fine plus other penalties $10,872); another industrial odours case, ARC v United Environmental Limited ($38,000 fine, plus $2,048 other penalties); earthworks subsidence, Auckland City Council v Selwyn Mews Limited ($36,500 fines, confirmed on appeal); industrial odours, ARC v United Environmental Limited ($29,000 fines plus $1,374 in other financial penalties); and dairy farm effluent, Hawke's Bay Regional Council v BHE Farms Ltd (fines $35,000).

Even fines at these levels are (except for two) in the lowest quarter of the available range. The combined influence of ss 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.”

During the third 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 Waikato Regional Council v Plateau Farms Ltd⁴⁶ his Honour Judge Thompson in sentencing the defendant said:

“I have mentioned the issue of deterrence more than once before. What can be said with certainty in terms of sentencing levels is that of recent times, the Court has been expressing concern that the messages about environmentally responsible farming, and dairy farming in particular, do not seem to be being universally heard.

The Court is well aware that there are substantial efforts at education of farmers to their responsibilities and the major dairy companies have been very much involved in that.

The Court’s response, particularly over the last two to three years I think it is fair to say, has been an attempt to drive that message across by increasing the general level of fines imposed for significant offences, particularly where they are committed by substantial farmers.”

In Manukau City Council v Russell Lesley Heenan⁴⁷ Judge McElrea said:

“The cases referred to by both counsel are numerous and I do not intend to cite them all. However, I note that some of the cases referred to are quite old, and by that I say cases last century which is not all that long ago, but it is true that the level of fines has increased quite noticeably within Resource Management Act sentencing in different parts of the country over recent years, and some of the old cases are now quite unreliable as a guide. ... The Court has responded to a clearly expressed public concern about ongoing offending of this type and the level of fines imposed has increased considerably in recent years.”

In Auckland City Council v Rakesh Kumar Sharma and AVR Enterprises Ltd⁴⁸ Judge McElrea said:

“The cases that are canvassed by counsel point in different directions. This is partly due to the fact that the cases relied upon by defence counsel tend to be older cases, often 10 years older or more, and several Environment Judges have commented, as have a number of High Court Judges, that the overall level of fines to be expected under the Resource Management Act has increased significantly in recent years.”

 

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