Davis v Far North District Council

[2014] NZHC 3250

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2014-488-000047 [2014] NZHC 3250

BETWEEN

KARAMEA TENETI DAVIS

Appellant

AND

FAR NORTH DISTRICT COUNCIL Respondent

Hearing:	16 December 2014
Appearances:	Mr Davis, Appellant in person D R James for Respondent
Judgment:	17 December 2014

(RESERVED) JUDGMENT OF ANDREWS J [Appeal against sentence]

This judgment is delivered by me on 17 December 2014 at 4 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

DAVIS v FAR NORTH DISTRICT COUNCIL [2014] NZHC 3250 [17 December 2014]

Introduction

[1]      On 24 June 2014 Mr Davis was found guilty in the District Court at Kaikohe on  three  charges  laid  by  the  Far  North  District  Council  (“the  Council”)  under s 23(1)(c) of the Forest  and Rural Fires Act 1977 (“the Act”) of setting fire to vegetation in open air, during a prohibited fire season, without a fire permit, and one charge under s 26 of the Act of wilfully or negligently leaving a burning substance in

the open air, so as to cause a fire hazard.1     On 30 October 2014 Mr Davis was

convicted and ordered to come up if called upon in respect of the first charge under s 23(1)(c), and fined $800 and ordered to pay $200 towards the costs of prosecution on each of the remaining three charges.  Mr Davis was also ordered to pay the costs of the Northern Rural Fire Authority of $8,108.83.2

[2]      Mr Davis has appealed against his sentence on the grounds that the fines imposed were excessive, and that the prosecution falsely reported to the Court that the fires were in close proximity to exotic forest, which had an adverse affect on the sentencing decision.

Background

[3]      A prohibited fire season was declared in the area of the Far North District

Council on 30 January 2013, pursuant to s 22 of the Act.  It applied until 17 April

2013. As a result, all outdoor fires were prohibited, and any existing permits to light fires were cancelled.  During a prohibited fire season, it is an offence to light a fire in the open air, except pursuant to a special permit given under s 24 of the Act.  The prohibited fire season was widely advertised as a “Total Fire Ban in Northland”.

[4]      Mr Davis’ property is within the area of the total fire ban. He lit fires on his property on 21 March 2013, 28 March 2013, and on 3 April 2013.  On 3 April, he left the fire burning in the open air.  The fire service attended the fires on 28 March and 3 April.  Mr Davis did not have a special permit in respect of any of the fires. When he was spoken to by Rural Fire Officers, Mr Davis admitted lighting each of

the fires, and leaving his property on 3 April while the fire was still burning.  He said

1      FNDC v Davis DC Kaikohe CRI 2014-027-178, 25 June 2014.

2      FNDC v Davis DC Kaikohe CRI 2014-027-178, 30 October 2014.

that a fire was lit on 21 March to deter a weasel, and the fire on 28 March was to dispose of a litter of stillborn piglets.   On 19 April 2013, Mr Davis wrote a letter offering his “unreserved apology in regards to my irresponsible behaviour in for lighting fires on my property.”

[5]      Mr Davis first appeared in Court on 4 April 2014, and entered pleas of not guilty to all four charges.  He was remanded to appear in Court for a case review hearing on 13 May 2014, but failed to appear on that date. The charges were then set down for hearing by way of formal proof.

[6]       At the formal proof hearing on 24 June 2014, Judge de Ridder held that the offences under s 23(1)(c) of the Act are strict liability offences.  The Judge then held that the Council had proved that a prohibited fire season was in effect at the time of each of the three fires, Mr Davis had not applied for or been issued any permit to light a fire in the open, and that he had, on the three alleged occasions, set fire to vegetation in the open air, without any permit.  The Judge also found that on 3 April

2014, Mr Davis had left the fire he had lit, it constituted a fire hazard to vegetation, and that he had failed to take all reasonable steps to extinguish it.  Accordingly, the Judge found all four charges proved.

District Court sentencing decision

[7]      Judge  de  Ridder  sentenced  Mr  Davis  on  30  October  2014.    Mr  Davis appeared at the sentencing hearing.   The Judge recorded that at the time the fires were lit, Northland was experiencing its driest period in 60 years with record low rainfall and higher than average temperatures.  The Judge accepted the prosecution’s submission that the offending was serious, in particular, the offending on 3 April

2013, when Mr Davis lit a fire then left the area, exposing his property and a nearby exotic forest to risk of fire. As a result, the fire authority had to take considerable steps to contain and extinguish the fire.

[8]      For the 21 March 2013 charge, Judge de Ridder convicted Mr Davis and ordered him to come up for sentence if called upon in 12 months.  For each of the

28 March and 3 April 2013 charges of lighting a fire, Mr Davis was convicted and

fined $800 and ordered to pay $200 towards the cost of the prosecution in respect of each.  For the second 3 April 2013 charge, Mr Davis was convicted and fined $800, ordered to pay $200 toward the prosecution’s costs and ordered to pay the costs of the Northern Rural Fire authority of $8,108.83.

Submissions

[9]      In a written submission, Mr Davis submitted that the sentence was excessive because he is elderly (75), and has bad eyesight.   He has a glass eye and wears glasses and said that just because the signs about fire bans were visible to younger people did not mean he saw them.  He asked that this Court impose a fine of $200 per offence and abolish the order to pay $600 toward prosecution costs.  He accepted the order to pay the costs of the Fire Service.  He asked the Court to issue an order to the Fire Service to attend his property when a fire ban is in force and notify him in person of the fire ban.

[10]     Mr Davis also made oral submissions at the appeal hearing.   He submitted that the evidence of the Fire Service officers was lies, that the fires posed no danger to other native or exotic forests, and that he did not know of the fire ban.   He acknowledged  that  he had  not  attended  at  the  District  Court  on  13  May 2014, although he had attended at the previous hearing when that date was set.

[11]     Mr James  relied  on  his  submissions  before the  District  Court,  where  he submitted that the gravity of Mr Davis’ offending, and his culpability, was high.  He submitted that, as indicated by the maximum penalty of two months’ imprisonment or a fine of up to $1,500, offending under s 23(1)(c) and s 26 of the Forest and Rural Fires Act is at the less serious end of the spectrum of criminal offending.  However, Mr Davis’ offending was at the serious end of offending under the Act, and required a fine of just over half the maximum.  Mr James submitted that a fine was the least restrictive outcome appropriate in the circumstances.

Approach on appeal

[12]     There  is  no  specific  right  of  appeal  in  the  Forest  and  Rural  Fires Act. Section 115 Summary Proceedings Act 1957 applies, giving Mr Davis a general right of appeal.

[13]     An  appeal  against  a  sentence  is  a  general  appeal  which  is  by  way  of rehearing.   Section 121(3)(b) of the Summary Proceedings Act provides that the High Court may quash or vary a sentence where it is “clearly excessive or inadequate or inappropriate” or if the Court is “satisfied that substantial facts relating to the offence or the offender’s character or personal history were not before the Court imposing sentence”.

[14]     The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.  The appeal court cannot simply substitute a sentence for that imposed in the lower court.  The appellant must establish that there has been an error at sentencing, such that the sentence is clearly excessive or inappropriate.

Relevant law

[15]     There is, as Mr James submitted in the District Court, a lack of relevant sentencing authorities on the provisions of the Forest and Rural Fires Act.  I note that s 40(1) of the Sentencing Act 2002 provides that the court must take into account the financial capacity of the offender in determining the amount of the fine.  Mr James’ submissions in the District Court covered this, noting that the only information the Council had was that Mr Davis owns the 98 hectare property on which the fires were lit.  Mr James also noted that a fine may be paid in instalments.  No new information has been provided to me on appeal.

[16]     I note Mr Davis’ submissions as to his bad eyesight, and the placing of the signs advertising the fire ban.   However, because the offences are strict liability offences, that is not relevant.   Where an offence is a strict liability offence, the prosecution does not have to prove that the person charged knew of the total fire ban. All that needed to be proved in this case was that a fire was lit, in an area where there

was a declared prohibited fire season.   In any event, even if Mr Davis could have said he had a defence in that he was not aware of the ban when he lit the first fire (in respect of which no fine was imposed), he was well aware of it after that.3

[17]     The fines imposed were clearly open to the Judge, as were the orders for Court costs and prosecution costs.  The order for payment to the Rural Fire Authority was available to the Judge under s 61 of the Act, which expressly provides for an order  for  payment  of  the  costs  and   expenses  relating  to  fire-fighting  and investigation.  The Judge had full information supporting this claim before him at sentencing.

Result

[18]     Mr Davis has not identified an error vitiating the lower Court’s sentencing

discretion. The appeal against sentence is dismissed.

Andrews  J

3      See Department of Conservation v Smythe HC Whangarei CRI-2008-488-4, 21 August 2008.