Archer v New Zealand Historic Places Trust

[2013] NZHC 2681

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-419-0084 [2013] NZHC 2681

BETWEEN

ADAM ARCHER

Appellant

AND

NEW ZEALAND HISTORIC PLACES TRUST

Respondent

Hearing:	13 September 2013
Appearances:	M J Hammond for Appellant T J Gilbert for Respondent
Judgment:	15 October 2013

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 15 October 2013 at 3.30 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: ...................................

Solicitors:             Tompkins Wake, Hamilton

Luke Cunningham & Clere, Crown Solicitor, Wellington

ARCHER v NEW ZEALAND HISTORIC PLACES TRUST [2013] NZHC 2681 [15 October 2013]

[1] The Appellant appeals against sentence on one  count  under  s 99(1)(a) Historic Places Act 1993 (“Act”). The Appellant pleaded guilty to the offence and was ordered to pay a fine of $15,000, and to make a contribution of $2,850 towards the costs and disbursements incurred in the prosecution.1

[2]     The Judge arrived at the end sentence of $15,000 by adopting a starting point of $16,000, adding $4,000 for a relevant prior conviction, and then reducing the fine by 25 per cent to reflect the Appellant’s co-operation and guilty plea.

[3] The Appellant submits that the fine, coupled with the award of costs, was manifestly excessive. He submits that the Judge adopted too high a starting point, that the uplift of $4,000 likewise was excessive, and that the Judge erred in refusing to reduce the sentence on account of the Appellant’s good character.

Background

[4] As I have said, the Appellant was charged pursuant to s 99(1)(a) and, specifically, with damaging or modifying an archaeological site. Section 99 of the Act provides:

99Offence    of     destruction,    damage,     or     modification    of archaeological site

(1)Every   person   commits   an   offence   who,   knowing   or   having reasonable cause to suspect that a site is an archaeological site,—

(a)Destroys, damages, or modifies that archaeological site; or

(b)Causes that archaeological site to be destroyed, damaged, or modified,—

without the authority of the Trust or any person or body authorised by the Trust in that behalf.

(2)Every person who commits an offence against subsection (1) of this section is liable on … conviction,—

(a)In the case of destruction, to a fine not exceeding $100,000:

(b)In  the  case  of  damage  or  modification,  to  a  fine  not exceeding $40,000.

1 New Zealand Historic Places Trust v Archer DC Hamilton CRI-2012-019-3203, 27 November 2012.

[5] The offending occurred in February 2012 at 21 Grantham Street, that land being situated in central Hamilton on the west side of, and close to, the Waikato River. Various activities have taken place on the site since at least 1875. The site was/is the location of the old Hamilton Club, that club having been built in 1904.  It is common ground that the site is an archaeological site as defined in the Act.

[6] The owners of the site (“developers”) wished to  relocate  the  Club  to  a different part of the site and then construct an office building. It is unlawful for a person to destroy, damage or modify the whole or any part of an archaeological site, knowing or having reasonable cause to suspect that it is such a site,2 without first obtaining authority from the Respondent (“the Trust”). This prohibition is consistent with one purpose of the Act, namely the identification, protection, preservation and conservation of the historical and cultural heritage of New Zealand.

[7] If the Trust authorises works to an archaeological site, it may do so on conditions which allow the Trust to investigate the site prior to the proposed works.3 That is what occurred in this case. At the time of the offending the Trust was undertaking archaeological investigations of selected parts of the site, following which the developers would proceed with their project. Given the nature of that development, it was likely to be many years before the Trust had another opportunity

to investigate the site.

[8] The Trust’s work on the site was interrupted by bad weather one day in February 2012. The site was surrounded by a 1.8m fence with signs requiring the public to stay out. I am informed from the bar that the Appellant was passing the site when he saw that no-one was working on the site and that the gates were open. The Appellant knew of the Trust’s investigations and the proposed development. Both had been the subject of coverage by local newspapers. Also the Appellant is an antiques dealer with a special interest in bottles, and with previous experience of s 99 for that matter. The Appellant went onto the site and started digging, using a trowel or spade he keeps in his car for, I accept, unrelated reasons.

2 Historic Places Act 1993, s 10.

3 Ibid, ss 14 and 15.

[9]   At about 4.30 pm that afternoon, an employee of the developers interrupted the Appellant who then ran off. It was discovered that the Appellant had dug a hole that was approximately 80 cm long, wide and deep. The Appellant had dug up some bottles, and had disturbed others that had already been extracted or uncovered. The Appellant had pushed some bottles through the fence, presumably so that he could retrieve them later.

[10] The Appellant was charged, pleaded guilty and sentencing followed.  One of the points that the Judge made in sentencing the Appellant was that the very acts of digging and extracting items affect the Trust’s archaeological investigations because the location of an item and its relationship to others may be informative and significant. As counsel for the Trust put it before me, “context is everything”. Accordingly, irreparable damage is suffered whether or not the offender makes away with anything.

Discussion

[11] Part 5 of the Act creates offences for failing to comply with provisions of the Act.   The maximum penalties which may be imposed vary.  A maximum fine of

$2,500 may be imposed for offences such as refusing access to an archaeological site or historic place (see s 101(a)) or the unauthorised entry upon any land or historic place vested in or under the control of the Trust (see s 104(a)). The amount of the maximum fine then increases to $40,000 for damaging or modifying what may loosely be described as a protected site, or $100,000 in the case of destruction.

[12] I understand from counsel that this is the first time the High Court has had to determine an appeal against sentence imposed under s 99. I have been assisted by the sentencing notes of several District Court Judges to which counsel referred me.4 Prior to 2002, those Judges fixed sentence on the basis of four matters set out in Machinery Movers v Auckland Regional Council.5

4 New Zealand Historic Places Trust v Northern Projects DC Auckland CRN9027009942, 13 June 2000; New Zealand Historic Places Trust v Crook DC Thames CRN0075003741, 2 August 2000; New Zealand Historic Places Trust v Archer DC Hamilton CRN0019018065, 22 February 2001; and New Zealand Historic Places Trust v Wilson DC New Plymouth CRN1043008189, 14 August 2001; New Zealand Historic Places Trust v Glass Earth (New Zealand) ltd DC Alexandra CRI-2012-002-035, 3 May 2012; and New Zealand Historic Places Trust v Remarkable Wines Ltd [2013] DCR 13 (DC).

5 Machinery Movers Ltd v Auckland Regional Council [1994] 1 NZLR 492.

[13] Machinery Movers was an appeal to the High Court against sentence imposed under s 339 Resource Management Act 1991 (“RMA”). The High Court concluded that sentences for breach of s 339 RMA should reflect four matters first indentified in a Canadian case, R v Bata Industries Ltd.6 The criteria were the nature of the environment affected; the extent of the damage caused; the deliberateness of the offence; and the attitude of the accused.

[14] Since 2002, and as Judge Burnett recognised in the present case, sentencing for offences under the Act has been governed by the Sentencing Act 2002 (“Sentencing Act”) and, since 2005, by the Court of Appeal’s decision in R v Taueki.7 That said, the factors identified in Machinery Movers remain relevant because each has their place in the application of ss 8 and 9 Sentencing Act.

Grounds of appeal Starting point

[15] The Appellant submits that the starting point of $16,000 selected by the Judge was not aligned to the gravity of the offending assessed against the four factors identified in Machinery Movers.

[16] As I have said, the Machinery Movers criteria can no longer be considered determinative. I take the Appellant’s point to be, however, that the starting point did not reflect the intrinsic culpability of the offending, as it should.

[17] As the Judge said, the purposes of sentencing the Appellant were to hold the Appellant accountable for the harm that he had done, to promote a sense of responsibility in him for that harm, to denounce his conduct, and specific and general deterrence.8 In terms of specific deterrence, the sentence to be imposed had to be sufficient to bring home to the Appellant that he was required to observe and comply with the Act. The sentence also had to be sufficient to underline to the public the importance which the legislature has attached to giving the Trust the first opportunity to investigate an archaeological site.

6 R v Bata Industries Ltd (1992) 9 OR (3d) 329; 70 CCC (3d) 394.

7 R v Taueki [2005] 3 NZLR 372.

8 Sentencing Act 2002, ss 7(1)(a), 7(1)(b), 7(1)(e), 7(1)(f), and 7(1)(g).

[18] The Judge then turned to the principles of sentencing in s 8 Sentencing Act. The Judge identified the following as of particular relevance to the Appellant’s offending: the gravity of the offending; the seriousness of the type of offence; and the desirability of consistency as between sentences for similar offending.9

[19] Specifically, the Judge took into account that the site was ready for investigation following the Trust’s preparatory work for the same. That investigation had not commenced to any great extent as to the time of the offending. Before me, and before the Judge, counsel for the Appellant submitted that the site was not pristine, and that it had already been substantially bulldozed and despoiled. I accept the submission for the Trust, however, that inevitably some preliminary works must be undertaken before a site can be investigated by the Trust, including matters such as removal of any tar-sealing or equivalent. With respect to counsel for the Appellant, I do not consider that in this particular case it is appropriate for the Appellant to quibble as to the works that had been done or the significance of the site in which the Appellant was digging. The Appellant is required to comply with the Act and not just in respect of sites or parts of site that he considers significant.

[20] The Judge also took into account that this was a well known historic site, as indeed it was, and the nature of the damage caused by the Appellant.10  The Appellant had dug up various bottles and interfered with works the Trust was proposing to undertake. I accept, however, that the area of damage was confined.

[21]   The Judge also took into account the degree of deliberation or premeditation in the Appellant’s offending.11 Although the Appellant was passing the site for unrelated reasons, he knew its significance. Counsel for the Appellant submitted to me that the offending was unpremeditated, spontaneous and without subterfuge, and was motivated out of a concern to preserve what the Appellant considered was likely to be destroyed or damaged.   In my view, the Judge was correct to conclude that

there was a degree of deliberation in the offending. That is because the Appellant knew that he should not be on the site, whatever his motivation.

9 Ibid, ss 8(a), 8(b) and 8(e).

10 Sentencing Act 2002, s 9(1)(d).

11 Ibid, s 9(1)(i).

[22] In so far as concerns consistency in sentencing levels, counsel referred me to the six cases referred to in [12]  above. Of those six cases Glass Earth (New Zealand) Ltd and Remarkable Wines Ltd post date the Sentencing Act.

[23]    The salient points of each case may be summarised as follows.

[24] In Northern Projects (2000), a pa was located on the site, which site was also considered wahi tapu. Some 50 per cent of the site and its features had been damaged and parts destroyed. The Court considered that the offending had been committed knowing the significance of the site. The offender had taken some steps to make amends and had pleaded guilty. The Court imposed a fine of $15,000.

[25] In Crook (2000), the affected site was a “significant and important” pa. An area of 30 x 12 metres had been damaged, permanently. The offending was considered to have arisen out of a misjudgement rather than to have been deliberate. The offender was considered to be remorseful and had pleaded guilty. The Court imposed a fine of $4,000.

[26] In Wilson (2001), the site had been a pa and had later become the most “important military establishment” of the Taranaki wars. The offenders likewise were in search of bottles, had planned their work and had undertaken the same at night with shovels.  They pleaded guilty and the Court imposed fines of $5,500 and

$4,500.

[27] In Glass Earth (2012), the site was an historic gold mine. The harm caused was assessed as being at the “lower end of the scale”, despite it having been caused by earthworks. The Court concluded that there was a degree of wilful blindness in the offending. The Court adopted a starting point of $12,000, gave a 25 per cent discount to reflect the offender’s remorse, guilty plea and lack of previous convictions, arriving at an end sentence of $9,000. The Court also ordered the offender to pay costs and disbursements to the Trust of more than $3,300.

[28]   In Remarkable Wines (2012), the offender had excavated a substantial portion of an historic gold mining site.  The Court noted that, as a result, the opportunity to

undertake a proper analysis of the affected part of the site had been lost forever. The Court described the breach as flagrant and adopted a starting point of $14,000. The offender pleaded guilty. The Court imposed a fine of $10,000 and the offender was ordered to pay the Trust costs and disbursements of $6,300.

[29] In Archer (2001), this being the Appellant’s prior offending, the site was residential and not considered unique or of particular distinction. On this occasion, too, the Appellant was in search of bottles. The Court assessed the damage caused by the Appellant as being at the “higher end of the scale” and the site was assessed as being of no further archaeological use as a result of the Appellant’s offending. The Court considered that the Appellant had been either deliberately or wilfully blind to the consequences of his actions. The Appellant was convicted following a defended hearing. The Court said it would have imposed a fine of not less than $10,000 but it reduced the same to $6,000 on account of the Appellant’s financial position. The Court also ordered the Appellant to pay costs of $1,000 plus witness expenses.

[30] Taking into account all of the matters to which I have referred from [17] onwards, and particularly the desirability of consistency and the confined nature of the damage, I have come to the conclusion that the starting point that the Judge adopted was manifestly excessive. The Appellant submitted that the starting point of

$10,000 to $12,000 was consistent with the Appellant’s level of culpability. I accept that submission.

Private property

[31] Counsel for the Trust submitted to me that the offending in this case was aggravated by the fact that the Appellant had entered onto private property. I do not consider that matter affects sentencing in this case. This was a commercial site. It was open to the developers to take action against the Appellant if they chose to do so.

Uplift

[32] The Appellant submits that the uplift of $4,000 that the Judge imposed in respect of his earlier offending was excessive.

[33] I am satisfied that an uplift was required.  The Appellant’s prior offending was similar in nature. It was material because it revealed the need for a greater deterrent response.

[34] An uplift for prior offending must be proportionate. In this case, the Judge applied an uplift of 25 per cent to the starting point. I am not satisfied that percentage uplift was in error or excessive. The amount of the uplift will reduce in real terms, however, because of the reduction in the starting point. I am satisfied that an uplift of $2,500 would be appropriate.

Good character

[35] The Appellant submitted that the Judge erred in not allowing any discount for good character. Before me, the Appellant submitted that he had been a conscientious and careful contributor to New Zealand’s archaeological heritage, and that he had proffered evidence to the Judge in support of the same submission.

[36] I am not satisfied that the Judge erred in any way in declining a deduction for good character. I accept the Trust’s submission that the nature of the previous offending precluded any such deduction.

Result

[37] Taking a starting point of $11,000, adding an uplift of $2,500, and leaving in place the 25 per cent reduction for the Appellant’s guilty plea brings the end sentence to $10,125, say $10,000.

[38] I quash the fine imposed by the Judge and substitute a fine of $10,000. All other orders made by the Judge are to stand.

[39]    Costs on the appeal are to lie where they fall.

..................................................................

M Peters J