Banora v Auckland Council

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-422

[2019] NZHC 2545

UNDER

the Sentencing Act 2006

IN THE MATTER

of an appeal against sentence

BETWEEN

ALEXANDER BANORA

Appellant

AND

THE AUCKLAND COUNCIL

Respondent

Hearing:	8 April 2019
Appearances:	N R Woods for the Appellant S F Quinn for the Respondent
Judgment:	8 October 2019

JUDGMENT OF GAULT J

This judgment was delivered by me on 8 October 2019 at 9.00 a.m. pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Solicitors:

Mr N R Woods, Rice Craig, Papakura

Ms K Rogers and Mr S F Quinn, DLA Piper, Auckland

BANORA v THE AUCKLAND COUNCIL [2019] NZHC 2545 [8 October 2019]

Introduction

[1] Mr Banora appeals against his sentence following guilty pleas on two charges under the Building Act 2004 and two charges under the Resource Management Act 1991 (RMA). He was sentenced by Judge Harland in the Auckland District Court on 9 November 2018.1 Judge Harland imposed a total fine of $67,050.

[2]                 The charges arise from the appellant’s construction of a retaining wall without consent,2 failing to comply with a notice to fix,3 undertaking earthworks in a manner that contravened the District Plan,4 and permitting contravention of an abatement notice.5

[3]Mr Banora says the total fine imposed is manifestly excessive and should be

$7,000. The respondent says the sentence was within range and there was no error that resulted in a manifestly excessive sentence.

Factual background

[4]                   Mr Banora and his wife own a residential property on Wolverton Street, Avondale (the property). It is close to Te Whau Creek (the stream). The stream runs perpendicular to (and crosses under) Wolverton Street, and parallel to the property. Between the stream and the property is an esplanade reserve owned by the Auckland Council. On the other side of the property is a fenced public footpath.

[5]                 Part of the property is a flood plain, a flood prone area and an overland flow path. The part of the property that is next to the stream is unstable/suspected ground.

1      Auckland Council v Banora [2018] NZDC 22253.

2 Building Act 2004, s 40. Maximum penalty a fine not exceeding $200,000 and, in the case of a continuing offence, a further fine not exceeding $10,000 for every day or part of a day during which the offence has continued.

3      Section 168(2). Maximum penalty a fine not exceeding $200,000 and, in the case of a continuing offence, a further fine not exceeding $20,000 for every day or part of a day during which the offence has continued.

4      Resource Management Act 1991, ss 9(3), 338(1) and 339(1)–(2). Maximum penalty two years’ imprisonment or a fine not exceeding $300,000 and a further fine not exceeding $10,000 for every day or part of a day during which the offence has continued.

5      Sections 338(1) and 339(1)–(2). Maximum penalty two years’ imprisonment or a fine not exceeding $300,000 and a further fine…