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Appendix 2: Sentencing Options

Sentences of community work imposed for the third period

Case Brief details Period of community work
1 North Shore City Council v Lolesio Keli 50 Two charges for destruction of trees in breach of section 9(1). Defendant was not able to pay a fine. This case was dealt with at the same time as the next one. All of the defendants were connected in that one of the defendants is the company and the other two are directors and/or employees of the company. There were three incidents. 250 hours community work.
2 Auckland City Council v Premier Tree and Lawn Services Ltd and Charlie Salelea Laulu & Lolesio Keli 51

One charge each against Keli and Laulu for destruction of trees in breach of section 9(1). Keli took part in restorative justice programme. Both defendants were unable to pay a fine.

Company was convicted and discharged and enforcement order made requiring that the company and its directors, employees, agents and any person working on its behalf cease breaching tree protection rules in Council Plan.

Keli – 100 hours community work.

Laulu – 250 hours community work.
3 Manukau City Council v Vincent Desmond Allan 52 Guilty plea. One charge of contravention of an abatement notice requiring defendant to stop using a residential property for business purposes. Defendant was not able to pay a fine. 175 hours community work.
4 Waitakere City Council v A Mackinnon 53 Guilty plea. Restorative justice conference held. Outcomes of conference – defendant agreed to planting and maintenance programme for five years but after conference decided that she wanted a different planting programme. Court had indicated that defendant would be discharged without conviction but decided to convict defendant because she had failed to abide by original agreement. 180 hours community work and enforcement order requiring implementation of original planting and maintenance programme.
5 Manukau City Council v Lois Patricia Lenaghan and Joseph Lenaghan 54 Not guilty plea. One charge of operating recycling business without consent in breach of section 9(1). Mother and son. Mother was convicted and fined $17,500. Son was unable to pay a fine. Enforcement order against both defendants requiring removal of material and cessation of operation. 350 hours community work.
6 Christchurch City Council v Bret Prangnell 55 Guilty plea. Two charges of excavation and filling work to form a track and skid pad. Defendant was not able to pay a fine. Court imposed fine of $2,000 on one charge and sentence of community work on the other charge. 200 hours community work.
7 Southland Regional Council v Marinus Frederik Antonisse 56 Guilty plea. One charge of discharge of dairy effluent in breach of section 15(1)(b). Defendant was not able to pay a fine. 100 hours community work.
8 Auckland City Council v Paul Edward McArthur 57 Guilty plea. One charge of construction of a building in breach of section 9. Defendant was able to pay fine – but to honour commitment defendant had made was ordered to do community work. 40 hours community work and fine of $4,500.
9 Waitakere City Council v Kenneth Brooks Poulton 58

Guilty plea. One charge of tree clearance on defendant’s property – 18 native trees, 10 of which were over 3 m, and several of which were over 50 years old in Protected Natural Heritage Area of Waitakere City. Clearance resulted in daylight entering area and extensive weed growth.

Defendant was remorseful and co-operative, and he was prepared to carry out the necessary remedial work. Defendant was not able to pay a fine.

 175 hours community work, Council costs of $4,000 and enforcement order requiring remedial work.
10 Manukau City Council v Niko 59 Guilty plea. One charge of undertaking vehicle repair activity in residential zone. 300 hours community work.
11 Waitakere City Council v Alice Shepherd 60 Guilty plea. One charge of contravention of abatement notice requiring removal of junk (scrap metal, car parts and tyres) at property. Defendant was not able to pay a fine and had planned to set up business at home to earn money for her family, husband was sick. 80 hours community work, Council costs of $500 and enforcement order requiring removal of junk.

 

Sentences of imprisonment imposed for the third period

Case Brief details Period of imprisonment
1 Waikato Regional Council v Michael Thomas Feeney 61 Guilty plea. Three charges of contravening an abatement notice and three charges of unlawful discharge of contaminants to air. At the time of sentencing, the defendant was serving a term of imprisonment on other charges. Six weeks imprisonment.
2 Thames-Coromandel District Council v Cameron Claude May 62 Guilty plea. One charge of illegal use of land by putting eight buildings on land in contravention of plan. Defendant was not able to pay a fine. At the time of sentencing, the defendant was serving a term of imprisonment on other charges. Eight weeks imprisonment.

 

Discharge without conviction for the third period

Case Brief details Decision
1 Northland Regional Council v Hepetema Hemi 63

Guilty plea. Two charges of contravention of section 12(1)(c) and (d) RMA – disturbing the foreshore and seabed of Coastal Management Area, depositing spoil and dredgings on foreshore and seabed. Defendant had been asked by representative of a group of residents to clear channels through mangroves in the estuary in order to clear flood channels. The representative, who had faced similar charges, had died in the interim.

The Court held situation where community took action on its own behalf, knowing consents were required, area affected was relatively small, no permanent damage, work was not done for personal advantage, shared responsibility which defendant alone was now carrying, and defendant had no previous convictions.

 Discharged without conviction on both charges.
2 Waikato Regional Council v Joyce and Leigh 64

Guilty plea to section 15(1)(b) charge against sharemilker (Joyce) and employee of sharemilker (Leigh). Continuing offences on dates between 26/12/04 and 19/01/2005 for Leigh and 1/12/2004 and 19/01/2005 for Joyce. History of problems with system before defendants began working at farm. Defendants asked owners to fix system. No response.

Joyce – Convicted and fined $500.

 Leigh discharged without conviction.
3 Christchurch City Council v Thomas Christopher Lewis 65 Guilty plea to section 9(1)(a) charge, earthworks which caused subsidence to neighbouring properties. Defendant reinstated right of way that earthworks had been undertaken on. Restorative justice conference outcomes – defendant apologised and confirmed he would complete work to reinstate right of way and other work. Discharged without conviction and ordered to pay costs to Council of $8,000.
4 Manukau City Council v Sanjay Ramnlal Madhav 66 Guilty plea. Two charges of contravention of section 9(1), earthworks on residential property. Contractor – without authority from the defendant who was the owner of the property – undertook earthworks much more extensive than permitted by resource consent and notified defendant after work had been done. Defendant took steps to try and stabilise land and contacted Council and obtained retrospective consent. Court said unfortunate that Council prosecuted only the owner and not contractor. Court held defendant had low level of culpability. Defendant agreed to pay $30,000 towards costs incurred by Council and had spent $178,000 on remedial work. Discharged without conviction on both charges and ordered to pay $30,000 towards Council costs under section 106(3) Sentencing Act.
5 Canterbury Regional Council v Keith Bruce Townshend, and Warren Justin Bent 67 Guilty plea by both defendants to section 14 charge. Townshend charged with permitting the taking of groundwater from a bore and allowing Bent to actually take the water. Bent charged with a single offence of taking water from the same bore for spray irrigation. Court found Townshend’s actions showed deliberateness. Bent’s actions were less culpable. Townshend was convicted and fined $12,000. Bent discharged without conviction and ordered to pay costs to Council of $2,500.
6 Auckland City Council v A1 Tree Ltd and Gittos 68 Guilty plea to section 9(1) charge by both defendants for removal of one tree and pruning of another. Gittos is director of A1 Tree Ltd. A1 Tree Ltd is in business of tree management. Successful restorative justice conference. Gittos discharged without conviction and ordered to pay costs of $2,500 jointly. A1 Tree Ltd convicted and fined $2,500. Costs ordered jointly against Mr Gittos and company by way of enforcement order of $2,500.
7 Hutt City Council v Ray Hickey 69 Guilty plea to section 9(1)(a) charge, destroying a protected kowhai tree. Defendant was project manager of a company that had been convicted and fined $14,000 for same offence. Discharged without conviction and ordered to pay costs to Council of $2,000.
8 Wairoa District Council v Peter Clennell Fenwicke Boogie S Cape Ltd and Angus Thompson70 Guilty plea by three defendants to section 9(1)(a) charge, earthmoving work undertaken at two adjoining sections. Three defendants were two employees of the company which carried out the works and the company itself. Thompson and Boogie S Cape Ltd convicted and each fined $4,000. Fenwicke discharged without conviction and ordered to pay costs to Council of $3,500.
9 Rodney District Council v Christopher Lloyd Pedersen 71

Guilty plea to two section 9(1)(a) charges, removal of vegetation and soil excavation. Work undertaken during formation of driveway.

Two houses on property. Defendant held a resource consent dated 2002 enabling him to build right of way to second dwelling, and requiring him to build retaining wall, he had paid $10,000 bond to Council to ensure that wall was built. As a result of variation to the District Plan, the minimum lot size on the property was reduced which enabled defendant to further subdivide. He applied for consent for a six-lot subdivision, hoping to do the work on wall at the same time as driveway for new subdivision. Council however would not wait for subdivision consent to be granted and insisted defendant build retaining wall first or forfeit bond. Defendant decided to build the authorised driveway and wall. While the machinery was on the property, he decided to clear the subdivision driveway as well, even though he had no consent for this.

Property covered in regenerating bush, but Court held damage inflicted to be seen in context of the zoning and fact that Council had, subsequent to offences, granted consent to the further subdivision. Defendant under personal and financial stress at time of offences.

 Discharged without conviction and ordered to pay costs to Council of $7,000 to be deducted from bond.
10 Manukau City Council v Claxton Tree Services Ltd 72

Guilty plea to section 9(1) charge, pruning two oak trees without resource consent. Property owners had not been prosecuted for incident but Council applied to amend other charges laid against owners. Application to amend was declined. One of property owners instructed contractor to push over tall pine tree, pine tree fell into two oak trees on neighbour’s land and caused significant damage to trees. Property owner then called defendant (arborist) to prune the trees.

Restorative justice conference held.

 Discharge without conviction.
11 Canterbury Regional Council v Kerry Rush Earthmoving Ltd, Kerry Francis Rush, Ian Robin Rush, Rakanui Station Ltd and Timothy Wilding 73

Late guilty plea to section 9(3) charges by four defendants for earthworks on large scale. Prosecution did not oppose discharge without conviction.

Defendant companies convicted, Rakanui Station Ltd fined $22,500 + solicitor’s fees of $1,456 and Kerry Rush Earthmoving Ltd fined $7,500 + solicitor’s fees of $1,456.

 The three individuals – KF Rush, IR Rush and T Wilding were discharged without conviction but ordered to pay Council’s costs plus solicitor’s fees. Wilding – $4,940 + $1,456, KF Rush $2470 + $728, IR Rush $2470 + $728.
12 Canterbury Regional Council v Takamatua West Ltd, Andrew James Tisch and Calcon Ltd 74 Three defendants, guilty plea to charge for discharge of sediment in breach of section 15(1)(b) from earthworks for subdivision and company also charged with breach of abatement notice, see Appendix 3. Tisch discharged without conviction, ordered to pay $10,000 to residents' association and $6,000 towards Council costs.
13 Otago Regional Council v Wiseman 75 One charge for discharge of dairy effluent in breach of section 15(1)(b). Poor financial position. Discharged without conviction and ordered to pay $4,000 towards Council’s costs.
14 Canterbury Regional Council v Carter Holt Harvey Ltd 76 Guilty plea to charge of discharge of factory waste water from fibreboard (MDF) plant in breach of section 15(1)(a). Partially treated waste is irrigated onto farm. Waste discharged from broken portion of irrigation system into creek, maximum of 200 m3 discharged. Short term damage, lowest end of scale of deliberateness – held that defendant should have installed isolation valve and regularly inspected irrigation line, defendant co-operated, immediately took steps to rectify position, undertook full review of operation and steps to ensure no repetition. Discharged without conviction and ordered to pay $8,000 to Council resource care section towards environmental enhancement of area and Council investigation costs of $2,643.

 

Conviction and discharge for the third period77

77
Case Brief details Decision
1 Waikato Regional Council v Paul James Thomson 78 Guilty plea by farm manger to charge of discharge of dairy effluent. Court held systemic failure, even if the pipes had been connected to pot spreader, this would have made little difference as area available for irrigation too small. Defendant was retired and had no assets. Conviction and discharge
2 Hawke's Bay Regional Council v Hastings District Council 79 Guilty plea to charge of discharge of sewage to water. District Council took prompt action to mitigate damage, damage not significant. District Council agreed to pay all costs of Regional Council. Conviction and discharge
3 Hutt City Council v Wayne Sproston 80 Restorative justice conference held – see Appendix 5 for details. Conviction and discharge
4 Manukau City Council v Lisa Cai 81 Restorative justice conference held – see Appendix 5 for details. Conviction and discharge
5 Northland Regional Council v Whangarei District Council 82 Guilty plea to charge of discharge of sewage into harbour. Agreement reached – District Council would pay $10,000 to Regional Council for assisting community groups in shellfish re-seeding projects in the harbour. Conviction and discharge
6 Wellington Regional Council v Cardno TCB Ltd 83 Guilty plea to charge of permitting the placing of pipe in the bed of tributary in course of its operations as supervising engineer of subdivision work. Cardno had agreed to pay Council $6,000 to undertake compensatory work and $4,000 as contribution to the Council’s costs. Conviction and discharge

 

77 This table does not include cases where related defendants were both sentenced and where Court took global approach and one defendant was fined and another was convicted and discharged, eg, Taranaki Regional Council v Bruce Gordon Cudby & HG Cudby Ltd, see Appendix 3.

50 7/06/2005, Judge McElrea, DC Auckland, CRN 04004502284 and 0500500029.

51 7/06/2005, Judge McElrea, DC Auckland, CRN 04004502289 and 2253.

52 13/03/2006, Judge McElrea, DC Auckland, CRN 06004500372.

53 13/10/2006, Judge McElrea, DC Auckland. Written sentencing notes not available. Details provided by Waitakere City Council.

54 2/04/2007, Judge Dwyer, DC Auckland, CRI-2006-092-003441.

55 22/08/2007, Judge Smith, DC Christchurch, CRN 7009502066 and 2067.

56 21/02/2008, Judge Newhook, DC Invercargill, CRI-2007-025-00850.

57 31/03/2008, Judge McElrea, DC Auckland, CRI-2007-004-014372.

58 4/04/2008, Judge McElrea, DC Auckland, CRI-2007-090-9589.

59 5/05/2008, DC Auckland. Written sentencing notes not available. Details provided by Manukau City Council.

60 16/06/2008, Judge McElrea, DC Auckland, CRI-2007-090-012008.

61 7/04/2008, Judge Harland, DC Hamilton, CRI – 2006-019-6265.

62 5/06/2008, Judge Newhook, DC Auckland, CRI-2008-004-007940.

63 22/11/2005, Judge Thompson; DC Kaikohe, CRN05027500229 and 0230.

64 13/03/2006, Judge Thompson; DC Taupo, CRN 2005-069-1589.

65 24/05/2006, Judge Smith, DC Christchurch, CRN 05009504494.

66 13/10/2006, Judge McElrea, DC Auckland, CRI-2005-092-014415.

67 1/11/2006, Judge Smith, DC Christchurch, CRN 06003500115 to 117.

68 22/01/2007, Judge McElrea, DC Auckland, CRI-2006-004-018850 and 021361.

69 2/04/2007, Judge Thompson, DC Wellington, C06176.

70 5/04/2007, Judge Thompson, DC Napier, CRN06082500038 to 041.

71 21/08/2007, Judge Whiting, DC Auckland, CRI-2006-044-8202.

72 3/09/2007, Judge McElrea, DC Auckland, CRI -2006-092-012322.

73 17/03/2008, Judge Moore, DC Rangiora, CRI – 2006-028-000074 to 78.

74 4/04/2008, Judge Smith, DC Christchurch, CRI-2007-009-004858-60-66.

75 10/04/2008, Judge Smith – sentencing notes not available. Details provided by Otago Regional Council.

76 18/06/2008, Judge Smith, DC Auckland, CRI-2008-061-000319.

77 This table does not include cases where related defendants were both sentenced and where Court took global approach and one defendant was fined and another was convicted and discharged, eg, Taranaki Regional Council v Bruce Gordon Cudby & HG Cudby Ltd, see Appendix 3.

77 This table does not include cases where related defendants were both sentenced and where Court took global approach and one defendant was fined and another was convicted and discharged, eg, Taranaki Regional Council v Bruce Gordon Cudby & HG Cudby Ltd, see Appendix 3.

78 29/09/2005, Judge Smith, DC Hamilton, CRN.

79 4/05/2006, Judge Thompson; DC Hastings, CRN 05020500421.

80 17/05/2007, Judge Whiting, DC Wellington, CRI-2006-032-000564.

81 25/07/2007, Judge McElrea, DC Auckland, CRI -2006-092-016504.

82 19/11/2007, Judge Newhook, DC Auckland, CRN06088500911.

83 11/04/2008, Judge Thompson; DC Wellington, CRI-2007-085-7324.

 

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