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…
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- Case
- [2019] NZHC 2545
- Decision Date
CaseChat Overview and Summary
The court considered several grounds of appeal, including whether the Judge erred in setting the starting points for the Building Act and RMA charges, and whether the Judge adequately considered the purposes and principles of sentencing, the principles of totality, and appropriate discounts for good character and the guilty plea. After reviewing the evidence and case law, the court found that while the starting points for the fines were in range, the total starting point of $80,000 was high in this unusual case due to the degree of overlap in the offending and Mr. Banora's belligerence in ignoring notices from the Council.
The court concluded that the difference between the District Court's figure of $67,050 and its figure of $44,550, being $22,500, made the sentence as a whole manifestly excessive. Therefore, the appeal was allowed, and the court substituted the District Court's sentences with the following fines:
(a) CRN ending -654 (breaching s 40 of the Building Act) – a fine of $8,072.82;
(b) CRN ending -656 (breach of the notice to fix) – a fine of $8,072.82;
(c) CRN ending -657 (breaching the abatement notice) – a fine of $11,361.74; and
(d) CRN ending -658 (breaching s 9(3) of the RMA) – a fine of $17,042.62.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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