Ba v Auckland City Council - [2015] NZHC 1639

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-130 [2015] NZHC 1639

BETWEEN
GUORONG BA

Appellant

AND

AUCKLAND CITY COUNCIL Respondent

Hearing: 6 July 2015

Appearances:

M Keall for Appellant
R Singh for Respondent

Judgment:

14 July 2015

JUDGMENT OF DAVIDSON J

This judgment was delivered by me on 14 July 2015 at 4:15 pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

BA v AUCKLAND CITY COUNCIL [2015] NZHC 1639 [14 July 2015]

Introduction

[1] On 16 April 2015 Ms Guorong Ba was convicted and sentenced on two charges brought under the Resource Management Act 1991. The District Court Judge rejected Ms Ba’s application to be discharged without conviction.1 She now appeals. The respondent, the Auckland City Council (‘the Council’), does not oppose the appeal, but neither does it support it.

Background

[2] The appellant was the managing and sole director of Lily Clinic Limited, which ran a business known as the Lily Clinic at 1069 Dominion Road. The appellant and her husband, Mr Ming Qin, owned a half share each in the company and the property. The business has since closed and they sold the property earlier this year.

[3] Following an inspection under warrant by the Council on 22 May 2014, five charges in total were laid against Ms Ba, Mr Qin, and Lily Clinic Limited. Ms Ba and Mr Qin were each charged with operating an entertainment facility, and establishing a residential unit, contrary to the District Plan.2 Lily Clinic Limited was charged with operating an entertainment facility contrary to the District Plan.

[4] Three rooms were being used by Lily Clinic for entertainment, when under an agreement reached with the Council in 2012 the use of two rooms only was permitted as a home occupation. The 2012 agreement resolved a contest reflected in an abatement notice and appeal against that. The charge of unlawfully establishing a residential unit related to the garage, which was converted into an additional bedroom later reconverted to lawful use.

[5] All those charged pleaded guilty at the earliest opportunity, and came up for sentence on 16 April 2015. The learned Judge ordered Lily Clinic Limited to pay a

1 Auckland Council v Lily Clinic Limited [2015] NZDC 6319.
2 Resource Management Act 1991, ss 9(3) and 338(1); City of Auckland – District Plan Isthmus
Section, rr 7.7.2.1 and 7.7.1.

fine and court costs of $15,130, Mr Qin to pay costs of $3,289, and Ms Ba to pay a fine of $6,000 plus court costs of $260.

[6] The Judge considered that Mr Qin had a marginal involvement in the

‘deliberateness’ of the offending and discharged him without conviction.

[7] The Judge refused to discharge Ms Ba without conviction on the charges of operating an entertainment facility, and unlawfully establishing a residential unit. This was despite the Council as prosecutor being neutral as to discharge. The Judge’s reasoning was that breach of the District Plan in the context of the 2012 agreement was deliberate, and such offending must be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NZHC 1639
Decision Date: 14 July 2015

CaseChat Overview and Summary

Guorong Ba appeals against the refusal of the District Court Judge to discharge her without conviction on two charges brought under the Resource Management Act 1991. The charges relate to Ms Ba’s involvement in the operation of the Lily Clinic, which she owned with her husband. The charges relate to the use of three rooms for entertainment purposes and the conversion of a garage into an additional bedroom, contrary to the District Plan. The charges arose from an inspection by the Auckland City Council, which found that the business was operating contrary to an agreement reached in 2012. The Council does not oppose the appeal but does not support it either.

The legal issue before the court is whether the Judge should have discharged Ms Ba without conviction on the two charges. Ms Ba submits that the Judge wrongly assessed the gravity of the offence and gave too little weight to the consequences of convictions, with the result that he erred when he assessed the proportionality as discussed further. The court must consider the gravity of the offence, the direct and indirect consequences of a conviction, and whether those consequences are out of all proportion to the gravity of the offence. In assessing the gravity of the offending, all aggravating and mitigating factors relating to the offending and the offender are relevant. All indirect and direct consequences of conviction are relevant to the proportionality assessment under s 107. The court must assess all relevant material before it, and decide on the basis of that information whether the disproportionality test is made out.

The court found that Ms Ba should have known she was operating her business in breach of the 2012 agreement, and that of itself means the offending is of consequence. The court differed from the Judge on this point as without hearing evidence it thought the breach should be treated not necessarily as the product of “a high degree of deliberateness” but possibly the result of carelessness with an unacceptable indifference to ensuring compliance. The court further found that the gravity of Ms Ba’s offending was low, or moderate if the conduct were to be taken as deliberate, and it did not consider that the offending must be marked out with a conviction. The court found that the consequences of convictions would have a disproportionate effect, particularly in relation to Ms Ba’s citizenship prospects. The court concluded that the s 107 test was met, and it was appropriate to exercise the discretion to discharge the appellant without conviction under s 106 of the Act.

The appeal against the convictions is allowed and Ms Ba is discharged without conviction on charges CRN14004504976 and CRN14004504987. The fines and costs orders are unaffected.

Orders