Cowley v The Queen
[2020] NZHC 638
•24 March 2020
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2020-443-005
[2020] NZHC 638
BETWEEN PETER JOHN COWLEY
Appellant
AND
THE QUEEN
Respondent
CRI-2020-443-006 BETWEEN
AMIE DEANNE COWLEY
AppellantAND
THE QUEEN
Respondent
Hearing: 18 March 2020 Counsel:
N P Bourke for appellant
A D H Colley for respondent
Judgment:
24 March 2020
RESERVED JUDGMENT OF DOBSON J
[1] The appellant, Ms Amie Cowley (Ms Cowley), owns and occupies a property in suburban New Plymouth. A neighbouring property has a very substantial Moreton Bay fig tree growing on it. The tree enjoys status as a category two notable tree, which means that any cutting of the tree is regulated pursuant to rules issued under the New Plymouth District Plan. The tree is said to be 100 years old, approximately 20 metres tall and 30 metres wide.
COWLEY v R [2020] NZHC 638 [24 March 2020]
[2] A not insubstantial part of the tree’s branches and foliage hang over Ms Cowley’s property. In the circumstances described below, she and the other appellant, her father, Mr Cowley, pleaded guilty to breaching s 9(3) of the Resource Management Act 1991 when they accepted responsibility for trimming and removing branches from the tree without the requisite permission.
[3] The appellants were sentenced in a staged process concluding on 28 January 2020 in the New Plymouth District Court, when fines totalling $18,733.50 were imposed.1 That fine was divided as to $9,166.50 to Mr Cowley and $7,275 to Ms Cowley. They have both appealed the fines imposed as being manifestly excessive.
The circumstances of the offending
[4] Ms Cowley and another person acquired the property in 2014 and subsequently built a home and a shed on it. In seeking building consent from the New Plymouth District Council (the Council), Ms Cowley represented structures not intruding under the dripline of the tree, whereas the home and shed as subsequently completed did extend under that dripline.
[5] Ms Cowley became concerned at the tree dropping branches and other material on her property and raised these concerns with appropriate personnel at the Council. The Council approves certain arborist contractors to carry out work on notable trees, and Ms Cowley engaged an approved contractor, Atawhai Industries (Atawhai), in March 2017. That work was to occur in early May 2017 and before it started the Atawhai staff, Ms Cowley and a Council representative met on site to agree the precise extent of trimming that would occur.
[6] However, prior to the maintenance taking place, Mr Price, the adjoining owner on whose property the tree is growing, intervened, strenuously remonstrating with Ms Cowley that the tree was not to be touched. In Ms Cowley’s affidavit explaining the circumstances of the offending, she deposes that it was the aggressive conduct by
1 New Plymouth District Council v Cowley [2020] NZDC 1166.
Mr Price that caused the staff from Atawhai to decline to carry out any trimming work on the tree at all.
[7] In December 2017, Ms Cowley had a further telephone conversation with the relevant employee at the Council about the rules that applied to any trimming or maintenance work on the tree. It was made clear that defined limits applied to who could do the work and the extent of work that could be done without obtaining a resource consent.
[8] On 28 February 2018, Mr Cowley, with the help of two others who remained unidentified, undertook a substantial extent of pruning of the parts of the tree hanging over Ms Cowley’s property. This had occurred without either advising or seeking permission from Mr and Mrs Price, and it was carried out by Mr Cowley and others who were not Council-approved arborist contractors. Others who observed the activity contacted the Council. Council staff arrived at Ms Cowley’s property after the pruning had ceased but the tidying up and removal of the cuttings were still taking place.
[9] The Council officer who attended spoke to Mr Cowley, informing him that the tree was protected and that, under the District Plan rules, they were not allowed to carry out work. Mr Cowley laughed at the officer’s comments and advised that they had given themselves permission to do the trimming. He stated that the Council would not take them to court and they would welcome a $10,000 fine, which he said was the amount of a fine that a friend had received from the Council. He also said that pruning activity had added $100,000 to the value of Ms Cowley’s property. Mr Cowley said to the officer that he was making a point because he was conducting a subdivision that he considered had been held up by the Council. Mr Cowley invited the officer to take as many photos as he liked and a set of photographs was produced to the District Court.
[10] Mr and Ms Cowley do not contest that the pruning work was done poorly. Arborists advising the Council raised a concern at the prospect of harm to regrowth and a loss of aesthetic amenity by virtue of the unbalanced shape resulting from the work. At the hearing of the appeal, Ms Colley for the Crown acknowledged there was no present suggestion that the tree will not survive.
The sentencing analysis
[11] The Judge received written submissions from counsel in advance of a sentencing hearing on 19 July 2019. The Judge indicated to counsel that the range of fines proposed in their submissions was too low and invited further submissions in light of that indication. Counsel provided further submissions on 2 and 16 August 2019 and the Judge issued a judgment on 21 November 2019 setting out the level of fines she proposed to impose.2 The Judge characterised that decision as an interim sentencing one, because the Judge sought confirmation that Mr and Ms Cowley had the financial means to pay fines at the level she had determined. Once that confirmation was received, on 28 January 2020 the Judge confirmed the total fine previously indicated, although the division of responsibility for the total sum was allocated somewhat differently as between the two defendants.
[12] The Judge assessed the effects of the tree-cutting on the environment to fall into the moderately serious category. The tree had been left misshapen, adversely affecting its enhancement of the amenities of the area, and there were risks of physiological stress with a prospect of further branches or limbs within the canopy failing. The Judge acknowledged the damage was not as significant as if the tree had been completely removed or irreparably damaged.
[13] The Judge acknowledged that Ms Cowley had not taken part in the physical activity. However, she knew from conversations and meetings with Council officers and also with her neighbours that the tree was protected and that unauthorised work could not occur. The Judge found that both defendants were highly culpable for the offending.
[14] The Judge reviewed the facts and sentences imposed in a range of other cases involving similar offending.3 Having done so, the Judge formed the view that each case had to stand on its circumstances and merits. Her Honour made specific reference
2 New Plymouth District Council v Cowley [2019] NZDC 21662.
3 Lau v R [2018] NZCA 151; Auckland Council v Andrews Housemovers Ltd [2016] NZDC 780; Tauranga City Council v Kent DC Tauranga CRI-2012-070-4916, 18 March 2013; Auckland Council v Gilinsky [2017] NZDC 24573; Auckland Council v Browne DC Auckland CRI-2014- 044-000073, 1 May 2014; Auckland City Council v McSweeney DC Auckland CRN 604031250/256, 17 October 1996; Tauranga City Council v Ly DC Tauranga CRI-2008-070-5879, 26 February 2009.
to Auckland Council v Browne where the defendant had removed a notable tree but did so in circumstances where he had not consulted the local authority, rather than a deliberate act knowing of the restriction. In that case, the Court had nominated a starting point fine of $10,000, resulting in a fine of $2,750 following a guilty plea. The Judge also drew assistance from Auckland Council v Andrews Housemovers Ltd, where the offender had felled three Pohutukawa trees in the course of relocating a house onto the property where the trees were growing. The Court in that case would have used a starting point of $33,000 had restorative justice initiatives not been undertaken.
[15] In this case, the starting points contended for after revised submissions had been received were respectively in a range between $10,000 and $20,000 on the prosecution perspective, and in a range between $5,000 and $8,000 in defence counsel’s submissions. The Judge nominated a starting point of $25,000, acknowledging that she would have adopted a higher starting point if the prosecution had not proposed a starting point in a lower range than that.
[16] The interim judgment then considered an application on behalf of Ms Cowley for discharge without conviction and recorded reasons for rejecting that.
[17] The Judge considered three aggravating factors cited on behalf of the prosecution, namely the extent of harm to the tree, the premeditation involved and the arrogance demonstrated by Mr Cowley towards the Council officer. Of those, the Judge considered that the premeditation displayed by Mr Cowley warranted an uplift of five per cent in the amount ordered against him.
[18] As to mitigating factors, the Judge allowed three per cent because both defendants had no previous convictions, and the guilty pleas at the earliest opportunity entitled them to a further discount of 25 per cent. The amended arithmetic in the final decision allocated the fine of $18,733.50 unequally as detailed in [3] above.
Grounds of appeal
Starting point too high
[19] For the appellants, Mr Bourke submitted that the starting point was outside the available range and was manifestly excessive. He made the point that the Judge had set a starting point that was higher than both defence and prosecution had contended for, even after the Judge had invited counsel to reconsider upwards their suggested levels of fine. Mr Bourke likened the present case to Auckland Council v Browne, where a notable tree had been completely removed, in circumstances where the degree of deliberateness of the offending was at the very lowest end. That was reflected in a starting point of $10,000.
[20]Mr Bourke also invited comparison with Auckland City Council v McSweeney
where the defendant had unlawfully cut a tree on his own property.4 Fines totalling
$1,400 were imposed on two charges. I agree with Ms Colley that the sentencing norms for such offending have moved on since that decision in 1996 so that it is not a useful comparator in the present circumstances.
[21] Mr Bourke referred to the 2011 decision in Auckland City Council v Roe, which was similar in that the defendant was charged with pruning a tree growing in the property adjacent to his own.5 The activity continued after the defendant was told by a Council officer to stop. The branches removed did not significantly impact on the health of the tree and it was not destroyed to an extent where its shape was unable to be restored over time. The Judge in that case imposed a fine of $750.
[22] In Tauranga City Council v Ly, the defendant did relatively substantial damage to a protected tree on his own property.6 In setting the starting point, the Judge took into account the local amenity value of the tree, the extent of the damage (which was reasonably significant) and that the owner’s actions were deliberate in the sense that he did intend to harm the tree. The starting point was a fine of $9,000.
4 Auckland City Council v McSweeney, above n 3.
5 Auckland City Council v Roe DC Auckland CRN 0004055083, 9 July 2001.
6 Tauranga City Council v Ly, above n 3.
[23] For the respondent, Ms Colley drew different features from some of the cases Mr Bourke raised, in terms of ranking their relative seriousness against the present offending. She also relied on Andrews Housemovers where a fine would have been
$33,000 had restorative justice not been undertaken, and a District Court decision in Queenstown Lakes District Council v Spijkerbosch,7 which involved the complete removal of a 50 year old eucalyptus tree in the Arrowtown historic management zone, without resource consent. The owner was on notice that a resource consent was required but proceeded without one. The Judge in that case had adopted a starting point of a $30,000 fine. The fine was reduced to $20,000 for a guilty plea and then commuted to 180 hours’ community work.
[24] Ms Colley submitted that the relative seriousness of the present case when compared with others meant that the starting point of $25,000 was within the range available to the Judge.
[25] I agree with the sentencing Judge that all cases of this type have to be determined on their own facts.
[26] I would rank the offending by reference to the extent of harm caused as a low to medium level of seriousness. In terms of the intentional and deliberate nature of the offending, Mr Cowley must accept a high level of culpability for the manner in which he flouted his breach of the law. His culpability is increased by the fact that the tree belonged to a third party neighbour, who had signalled his strong opposition to any pruning. This contrasts with some of the other cases where the owners of trees did the damage.
[27] Overall, I am not satisfied that the features of the offending warranted a starting point of a total of more than a $20,000 fine.
Failure to accept mitigating circumstances
[28] In support of her application for discharge without conviction, and to place mitigating circumstances before the Court in a verified way, Ms Cowley completed an
7 Queenstown Lakes District Council v Spijkerbosch DC Queenstown CRI-2010-059-335, 30 July 2010.
affidavit in July 2019. Drawing on that, and other factual matters that were understood not to be contested by the prosecution, Mr Bourke submitted at sentencing that, among other factors in mitigation, Ms Cowley pursued pruning of the tree because she was concerned at the danger created, in particular for her young son, by the weight of branches falling on her property in windy conditions. Although not justifying the action, it did provide an explanation that might arguably have been seen as reducing the level of her culpability. She deposed that she had become frustrated at the delays in progressing issues constructively with the Council. However, the work was then initiated by her father without discussion with her. She also stated:
I want to be clear that at no stage throughout this ordeal have I ever wanted the tree to be harmed or damaged in any way. It is a magnificent tree and a key part of the mana of my surrounding home and area. As a professional in the architectural industry, I have a duty of care to regularly provide opinion on similar matters for many developments across our city and so I appreciate the importance of trees such as this one.
[29] The Judge rejected the claim of frustration and that a reason for the work was Ms Cowley’s concerns over safety, on the ground that those matters were not referred to in the summary of facts.8 The Judge’s sentencing analysis proceeded on the basis that the summary of facts had not referred to any explanation from Ms Cowley for the offending.
[30] Mr Bourke had prepared his sentencing submissions on the conventional basis that mitigating factors such as these did not have to be in the summary of facts and could be conveyed by other means to the Court. If and to the extent the Crown disputed the accuracy of such matters raised in mitigation, s 24 of the Sentencing Act 2002 would apply, raising the prospect of the need for a disputed facts hearing. Mr Bourke is correct that, in a context such as the present, mitigating circumstances may be raised without being acknowledged in the summary of facts.
[31] If the Judge was going to reject Mr Bourke’s submission that Ms Cowley was motivated by safety concerns and that the work occurred after a period of frustration at the lack of progress with the Council, then reasons for rejecting those matters
8 New Plymouth District Council v Cowley, above n 2, at [49], [50].
deposed to in her affidavit should have gone beyond the absence of reference to such matters in the summary of facts.
[32] As Ms Colley pointed out, subsequent parts of the interim sentencing decision do touch upon the content of Ms Cowley’s affidavit and one filed in partial response for the Council by Mr Paice. Those passages do not address reasons for rejecting what the Crown accepts were uncontested aspects of Ms Cowley’s explanations.
[33] I accept that the Judge erred in her approach to the assessment of mitigating factors legitimately raised on behalf of Ms Cowley. Given the different view I have reached on the appropriate starting point, the appropriate course is to undertake my own assessment of the relevance and extent of mitigating factors that ought to have been taken into account. I return to that analysis below.
Inadequate credit for previous good character
[34] The next ground of appeal was that the Judge gave inadequate credit for the previous good character of Mr and Ms Cowley, as reflected in the absence of previous convictions for either of them. Mr Bourke contended that an appropriate discount would have been in the vicinity of 15 to 20 per cent.
[35] In limiting a discount for previous good character to three per cent, the Judge rejected any discount for their willingness to engage in restorative justice, which they had sought to initiate but which was declined by the Council.
[36] Ms Colley submitted that discounts as modest as this were appropriate where good character is reflected merely in the absence of previous convictions, and the defendant could not claim particular positive contributions made to society.9
[37] I accept that the discount of three per cent risked appearing token as an aspect of the sentencing reasoning. Even without grounds for additional credit for good work in the community, the absence of previous convictions justified somewhat more.
9 Ms Colley cited B (CA182/2018) v R [2019] NZCA 18 at [72] and Britow v R [2017] NZCA 229 at [10]–[11].
Delay
[38] The last ground raised was the Judge’s failure to give additional credit for the delay that occurred in the sentencing process, without any fault attributable to the Cowleys. There had been a delay of over 41 weeks between the entry of their guilty pleas and the final imposition of sentence. Mr Bourke submitted that it was the Court, rather than the Crown, that caused the delays and that their extent breached the rights of defendants under s 25(b) the New Zealand Bill of Rights Act 1990 (NZBORA) to be tried without undue delay. He cited Tunstall v Police, where a delay of 42 weeks between trial and decision was sufficient to quash conviction and sentence,10 and Williams v R, in which a discount of 25 per cent on sentence for delays was not disturbed by the Supreme Court.11
[39] Mr Bourke submitted that the extent of the delay had caused significant stress to Mr and Ms Cowley. There had been relatively prominent reporting of the matter in terms critical of their conduct, where the implication could arise that they were dragging their heels.
[40] Ms Colley acknowledged that the delay would have caused stress for the appellants. She submitted the delay in the case was not an undue one and the discounts allowed in the circumstances that applied in Williams were not warranted here. That case involved cumulative delays of some five years between original arrest and conviction of Mr Williams on charges of manufacturing methamphetamine. The Supreme Court treated undue delay as synonymous with unjustifiable delay. The circumstances of each case where the issue is raised need to be considered in their own context. Ms Colley submitted that the circumstances here did not reflect any unjustifiable delay. The causes of it were explicable, and it was within the Judge’s discretion to not provide any additional discount for those delays.
Reconsideration of the sentencing in light of the grounds advanced
[41] I am satisfied that the Judge adopted too high a starting point and that her Honour approached the assessment of mitigating factors available to Ms Cowley
10 Tunstall v Police [2003] 7 HRNZ 205 (HC).
11 Williams v R [2009] NZSC 41, [2009] 2 NZLR 750. It was described as “generous”.
on an inadequate basis. It follows that I accept there was an error in at least one of the sentences imposed and accordingly undertake a fresh analysis of the appropriate levels of fine that should have been imposed for this offending.
[42] I set the starting figure for the total fines at $20,000. Apportioning that between Mr Cowley and Ms Cowley I would attribute two thirds ($13,330) to Mr Cowley and one third ($6,670) to Ms Cowley. Whilst it is Ms Cowley’s property that benefits from the removal of overhanging branches, a consideration of the summary of facts in light of the content of Ms Cowley’s affidavit and that in reply from Mr Paice leads me to the view that a starting point attributing two thirds/one third responsibility to the two of them is appropriate.
[43] From the starting point of $13,330 for Mr Cowley, I consider the absence of previous convictions warrants a five per cent discount, reducing his fine to $12,663.50. From that, I allow the 25 per cent discount for his early guilty plea, resulting in an end fine imposed on Mr Cowley of $9,497.62.
[44] Ms Cowley is to be assessed separately. In addition to the five per cent discount to which she is entitled for lack of previous convictions, the attitude reflected in her affidavit and which has not been challenged by the Crown warrants a further modest reduction. In particular:
· she had made attempts to deal with the Council about the problem;
· she perceived a danger to her infant son, which provided an explanation but not an excuse for pursuing the trimming of the tree; and
· she appreciated the importance of the tree and provided an assurance that she did not intend that it should be harmed in any way.
[45] Combined with the discount for lack of previous convictions, I would attribute these personal circumstances as entitling her to a further five per cent discount. This combined 10 per cent discount reduces the starting point for Ms Cowley from $6,670
to $6,003. From that amount, she is also entitled to the full 25 per cent for her guilty plea, resulting in a fine of $4,502.25.
[46] Both in terms of relativity between the two appellants, and the relativity of the total fines imposed on them against those imposed in other cases, I am satisfied that this would be an appropriate outcome.
[47] However, the greater allocation of responsibility for the fine to Mr Cowley would result in an increase in his sentence. That contingency was not contemplated in the submissions for either the appellants or for the respondent. In the absence of a cross-appeal seeking an increase in the punishment for Mr Cowley in the event I was persuaded a reallocation was required, I am not in a position to produce an outcome that increases the penalty ordered against him.
[48] The outcome is that I allow Ms Cowley’s appeal and reduce the fine imposed on her from $7,275 to $4,502.25.
[49] Although I would arrive at the calculation of Mr Cowley’s liability by application of different factors to arrive at a modestly increased amount, it follows that I cannot find that the fine imposed on him was manifestly excessive and his appeal is accordingly dismissed.
Dobson J
Solicitors/Counsel:
Nathan Bourke, New Plymouth for appellant Crown Law, Wellington for respondent