Gregan Farms Limited v Waikato Regional Council
[2023] NZHC 1017
•2 May 2023
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2022-419-76
[2023] NZHC 1017
BETWEEN GREGAN FARMS LIMITED
Appellant
AND
WAIKATO REGIONAL COUNCIL
Respondent
Hearing: 28 March 2023 Appearances:
J Gurnick for Appellant
A McConachy for Respondent
Judgment:
2 May 2023
JUDGMENT OF WOOLFORD J
This judgment was delivered by me on Tuesday, 2 May 2023 at 12:30 pm.
Registrar/Deputy Registrar
Solicitors: Gordon & Pilditch (Office of the Crown Solicitor), Rotorua Counsel: J Gurnick, Hamilton
GREGAN FARMS LIMITED v WAIKATO REGIONAL COUNCIL [2023] NZHC 1017 [2 May 2023]
[1] On 7 October 2022, Gregan Farms Limited (GFL) was fined $31,500 on one charge of contravening s 13(1)(b) of the Resource Management Act 1991 (RMA) by permitting the disturbance of a bed of a river, by excavating the bed and banks. It now appeals on the basis that the fine is manifestly excessive.
Factual background
[2] GFL is the registered owner of properties located at 21 McWatt Road, Waitakaruru; 81 McWatt Road, Waitakaruru; and 874 Okaeria Road, Waitakaruru. The properties at 21 McWatt Road and 81 McWatt Road are adjoining while 874 Okaeria Road runs adjacent separated by Okaeria Road. The properties at 21 McWatt Road and 874 Okaeria Road operate as one entity supplying Fonterra Co- operative Group Limited while the property at 81 McWatt Road is run as a separate entity and supplies Open Country Dairy Limited. The properties at 21 McWatt Road and 874 Okaeria Road are registered under the same certificate of title and have a land area of 193 hectares. The property at 81 McWatt Road is on a separate title and has a land area of 116 hectares.
[3] Running through both 21 McWatt Road and 81 McWatt Road (the McWatt Road properties) is a modified watercourse (the watercourse) being an unnamed tributary stream to the Waitakaruru River. The headwater to the watercourse is located at the north-eastern end of the Maramarua forestry block and runs in a northerly direction along the western side of Okaeria Road through the McWatt Road properties, across State Highway 2 to the confluence with the Waitakaruru River at the Steen Road Quarry. The McWatt Road properties consist of reasonably flat lands with paddocks consistent with dairy pasture, except for wetland areas which branch off the edges of the watercourse forming a part of the flood plain.
[4] On 24 February 2021, in response to a complaint alleging unlawful earthworks within a stream, Waikato Regional Council (WRC) officers inspected the McWatt Road properties. An inspection of the McWatt Road properties identified an area of earthworks originating south of the Maramarua Forest extending to the intersection of State Highway 2. The length of those earthworks and the streambed disturbance is approximately 1390 metres. The watercourse upstream of the excavated area was
slightly different in nature and appearance containing thick vegetation and sediment. The newly excavated channel was approximately 1.3 metres deeper than the non- excavated. A flow of water was visibly running through the uncut watercourse and flowing into the base of the recently cut channel.
[5] To better record details of the inspection, WRC officers classified the excavated watercourse into three sections referenced as Area 1, Area 2 and Area 3.
[6] Within Area 1, at the northern most end, a contractor employed by GFL had effectively excavated a consistent V shape channel within the flow path of the watercourse. The approximate measurements along this area of the watercourse being:
(a)2.2 metres across the top;
(b)0.9 metres across the base; and
(c)1.4 metres in depth.
[7] A small amount of water, ranging between 40 – 100 mm in depth, was noted flowing through the channel. Further to the east, near Okaeria Road, a second tributary watercourse feeds into the main watercourse which had also been excavated to the same scale as the main watercourse. Approximately 350 metres of the main watercourse in Area 1 had been excavated. In addition to this, approximately 200 metres of the second tributary watercourse had also been excavated.
[8] Within Area 2, the contractor had further excavated a V shape channel within the flow path of the watercourse. However, the scale of the excavation was more extensive and had increased in size. The approximate measurements along this area of watercourse being:
(a)3.0 metres across the top;
(b)1.2 metres across the base; and
(c)2.0 metres in depth.
[9] The excavation in this area had encroached into a wetland. Two small cuts had been made within the eastern bank of the main watercourse. These cuts had created channels to allow drainage from the paddock into the main watercourse. Approximately 290 metres of the watercourse in Area 2 had been excavated.
[10] Within Area 3, as with the previous areas, the excavation work had created a V shaped channel. The approximate measurements along this area of watercourse being:
(a)2.2 metres across the top;
(b)0.9 metres across the base; and
(c)1.4 metres in depth.
[11] Approximately 550 metres of the watercourse in Area 3 had been excavated and concluded just prior to State Highway 2.
[12] The earthworks and stream excavation had all been completed without any erosion or sediment controls. Some remedial work was undertaken along parts of the flood plain post excavation with spoil being power hoed and re-seeding having taken place. Along the length of excavated watercourse, WRC officers noted numerous dead eels in the paddock as well in and around the piles of material that had been removed during the excavation. The eels appeared to have been dead for a couple of days. Within the watercourse itself, WRC officers again noted numerous dead or dying eels as well as eels which appeared to be struggling to find space in the shallow ponding water. Within a straightened span of 50 metres along Area 3, 48 dead eels were counted in the water.
[13] Section 13(1)(b) of the RMA states that no person may, in relation to a river, excavate or otherwise disturb the bed unless expressly allowed by a resource consent. A river is defined in s 2 of the RMA and includes a continually or intermittently flowing body of fresh water, and also includes a stream and modified watercourse.
[14] The sole director of GFL, Mr Gregan, was spoken to and in explanation stated that he had engaged a contractor, Steve Barker Limited (SBL), to construct a farm race
and extend the culverts in the “drain” on the property. While the excavator was there, he directed SBL to clean out the “drain”. The “drain” was completely blocked and not allowing water to flow, causing extensive flooding during high rainfall. He said the grazeable pastoral land already existed, but parts became very wet and full of rushes. During the summer months the wetland dried out. He believed the watercourse to be a “drain” as it was straight and did not have continuous flow. To his knowledge the “drain” had not been cleaned out for 40 years.
District Court sentence
[15] The District Court originally gave a sentence indication dated 26 May 2022. After setting out the summary of facts and reviewing the submissions of counsel for both WRC and GFL, Judge MJL Dickey concluded on the issue of culpability:
[38] GFL as landowner has a responsibility to ensure that any works which occur on its land are undertaken lawfully. While it may contract with another to undertake works on its behalf, that responsibility remains. In determining its culpability for offending, the Court will consider the steps it took to ensure that the works were lawful. GFL hired an experienced company, SBL, whose director had been in the industry for over 40 years, to construct a farm race, extend culverts in a drain and clean out the drain. In terms of the agreed summary of facts what Mr Gregan determined to be a drain was a watercourse.
[39] The works that were undertaken adversely impacted approximately, 1,390m of the watercourse and, as I have found, had a low – moderate adverse effect on the environment.
[40] Despite engaging SBL, I find that GFL should have enquired of the Council or SBL as to the legality of the proposed works. The works were of some significance and should have triggered for GFL the need to make enquiry. I find the company was careless. I do not accept that the activity was commercially motivated as such, but note it benefitted from the improvements to its land.
[16] As to the starting point of any fine for the offending, the Judge reviewed the submissions of counsel for WRC and GFL. WRC submitted a starting point of
$65,000 was appropriate based on similar cases. Counsel for GFL submitted that the starting point proposed by WRC was manifestly excessive and consistent with a Council which was financially motivated to prosecute and strive for the highest penalty it could achieve. After reviewing various factors, the Judge noted that counsel for GFL submitted that a starting point of no more than $25,000 was justified. The Judge stated that she considered an appropriate starting point was in the range of
$40,000 to $50,000, which broadly aligned with cases to which she was referred and took into account her findings on effects and culpability. The Judge determined the appropriate starting point was $45,000. The Judge then indicated that she would adopt a discount of 10 per cent for good character. The Judge, however, said she would address any discount for a guilty plea if the sentence indication was accepted.
[17] It was accepted. At the subsequent sentencing hearing, the Judge noted that the outstanding matter was whether the full 25 per cent discount for the guilty plea should be allowed. After reviewing the procedural timeline and the submissions of counsel for WRC and GFL, the Judge noted that in Hessell1 a full 25 per cent discount for a guilty plea was generally given when a plea is entered at the first reasonable opportunity. The Judge noted that it struck her as inappropriate to give the same discount to a defendant who unconditionally pleaded guilty at the first or second appearance and to someone who elected not to enter a plea until after a sentence indication. The Judge stated that if a full 25 per cent discount is commonly allowed following sentence indications that could be viewed as having incentivised defendants and their counsel to seek sentence indications because there is no penalty for doing so by way of reduced guilty plea discount. In the circumstances, the Judge determined it was appropriate to allow a discount of 20 per cent for the guilty plea by GFL. Applying a discount of 30 per cent to the starting point (10 per cent for previous good character and 20 per cent for guilty plea), the Judge convicted GFL and imposed a fine of $31,500.
Prosecution of Steve Barker Limited (SBL)
[18] The contractor engaged by GFL to undertake the work, Steve Barker Limited, and its sole director Mr Stephen Francis Barker, were also charged with the same offence. SBL also sought a sentence indication, which Judge MJL Dickey issued on the same day as that in respect of GFL.
[19]The Judge concluded on the issue of credibility of SBL:
[38] I find that Mr Barker, the sole director of SBL, with 40 years of experience in the industry, should have known better than to undertake works
1 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
on the farm without checking if a resource consent was required. He stated that he believed the watercourse was a drain – quite simply he could have checked this point with the Council.
[39] [Counsel for SBL] submitted that the identification of what is a river distinct from a drain is not without difficulty, pointing to the analysis in the Council’s memorandum of 30 June 2021. That may be so, but it does not change the obligation to ensure that the works comply with the Waikato Regional Plan and the RMA. Mr Barker could have checked this point with Council. No enquiry was made. The company’s previous formal warning from the Council is relevant to my assessment as it related to clearance of an unnamed tributary and no adequate erosion and sediment controls being put in place. At the least, it should have alerted the company to the need for controls and the need to identify waterways. Given its experience, I find that SBL was highly careless in the way it approached the works.
[20] The Judge stated that she considered an appropriate starting point was in the range of $50,000 to $60,000, which was $10,000 more than the range determined by the Judge to be appropriate for GFL. She thought SBL should have known better. It had received a formal warning some years prior about works and tributaries. The Judge settled on a starting point of $60,000 at the higher end of the range “because of the defendant’s experience”. This was $15,000 more than the starting point adopted for GFL. She said she would address any discounts for good character and a guilty plea if the sentence indication was accepted.
[21] It was accepted. In a reserved sentencing judgment dated 7 October 2022,2 the Judge gave SBL a five per cent discount for good character, which was a reduction of five per cent on the discount which would have been available were it not for the formal warning SBL received some years previously. In addition, the Judge gave SBL a discount of 20 per cent for its guilty plea. Applying a discount of 25 per cent to the starting point (five per cent for previous good character and 20 per cent for guilty plea), the Judge convicted SBL and imposed a fine of $45,000. The charge against Mr Barker personally was withdrawn.
Appeals against sentence
[22] The test to be applied in any appeal against sentence is to ask whether there has been an error in the sentence imposed and, if so, whether a different sentence
2 Waikato Regional Council v Steve Barker Limited [2022] NZDC 19574.
should be imposed.3 In a sentence appeal, the focus is more on the end sentence. An appeal court ought not to tinker with the end sentence if the end sentence is in an appropriate range.4
Grounds of appeal
[23]In essence, the grounds of appeal are:
(a)The starting point adopted (and therefore the end sentence) was manifestly excessive.
(b)The Judge erred by not giving the appellant full credit for its guilty plea. There is said to be a pattern emerging in the District Court presided over by Environment Court Judges where guilty plea credit is being reduced simply because a sentence indication is sought. The appellant submits that such an approach is wrong in principle.
[24] The combination of the excessive starting point and the Judge’s failure to give the appellant full credit for the guilty plea meant that the end sentence is manifestly excessive. Counsel submits that the appeal should be allowed and a fine of no more than $16,250 substituted, being a starting point of $25,000 less 35 per cent discount (10 per cent for good character and 25 per cent for guilty plea).
Starting point
[25] There is no tariff or guideline judgment for sentencing involved in this type of offending. Counsel for GFL cited three cases, which he submitted may be of some assistance in assessing what may be the appropriate starting point. These were:
3 Criminal Procedure Act 2011, s 250(2).
4 Ripia v R [2011] NZCA 101 at [15].
Waikato Regional Council v Hold the Gold Limited5
[26] In Hold the Gold the length of the stream bed affected was slightly more than the present case – at 1,510 metres. However, the prohibited disturbance took place not when the defendant was undertaking a business activity, but when he was engaged in an environmental restoration programme, which had earlier involved the Regional Council. It was, moreover, “not that the work was done per se, but rather how it was done that … caused significant adverse environmental effects”.6 Remediation planting costing over $84,000 was undertaken and a restorative justice conference was held, following which the Waikato Regional Council did not seek a fine, being content with a conviction. Nonetheless, the Judge thought a fine for the defendant’s carelessness was warranted and adopted a starting point of $30,000, which after various discounts came down to a fine of $16,875.
Otago Regional Council v MFS Ventures Limited & Nelson7
[27] In MFS Venture Limited, the length of the stream bed affected was considerably less than the present case – at 500 metres. The excavation took place while material in the watercourse, which had accumulated because of storm events earlier in the year, was being removed. The removal from waterbodies of material which has accumulated as a result of storm events is a permitted activity under the Regional Plan provided that alluvium is not removed, and a series of other conditions met. Alluvium was, however, removed as part of the process. In addition, weeds and vegetation, which formed part of the in-stream aquatic environment, were removed, which was not permitted either. The Judge commented, “this is not the worst case of offending by any stretch of imagination”8 and adopted a starting point of $20,000, which she uplifted by 10 per cent on account of a previous conviction for discharge of effluent before discounting the adjusted starting point by 25 per cent for an early guilty plea. In the end, a penalty of $16,500 was assessed as appropriate.
5 Waikato Regional Council v Hold the Gold Limited DC Hamilton CRN-14019501673, 19 December 2014.
6 At [23].
7 Otago Regional Council v MFS Ventures Limited & Nelson [2018] NZDC 11952.
8 At [17].
Waikato Regional Council v Veen9
[28] In Veen the length of the stream bed affected was considerably less than the present case – at 568 metres. Mr Veen had completed the earthworks himself for the purpose of fencing off and cleaning the waterway. He believed the waterway was a farm drain, which he could clean. Mr Veen was extremely distraught at the prospect he might receive a criminal conviction for actions he thought were commendable and in line with what he understood would benefit the environment, rather than create adverse effects. In setting a starting point of $37,000, the Judge took into account:10
(a)the extent of the earthworks;
(b)the defendant’s lack of awareness of the relevant rules;
(c)the adverse effects of the earthworks; and
(d)the adverse cumulative effects of discharges in New Zealand’s waterways.
[29] The Judge then gave a discount of 10 per cent for Mr Veen’s good character and 25 per cent for an early guilty plea, which led to an end penalty of $24,050.
[30] Counsel for GFL then referred to the cases cited at sentencing by the prosecutor, which he submitted were considerably more serious than the offending in the present case. Two of these involve starting points of $45,000 – the same starting point as was adopted in the present case.
Waikato Regional Council v Whakapona Farms Limited & Greenbank11
[31] In Greenbank the defendant was granted a resource consent subject to several conditions to establish an access road to a preferred building site following the topography of the land. The consent was supported by an earthworks plan from a survey company. Mr Greenbank went well outside the scope of the intended
9 Waikato Regional Council v Veen [2021] NZDC 23501.
10 At [55].
11 Waikato Regional Council v Whakapona Farms Limited & Greenbank [2019] NZDC 15533.
earthworks excavating large amounts of soil to achieve what he thought were more preferable gradients for the driveway. Mr Greenbank did not install any erosion or sediment controls and soil material was eroded and discharged into watercourses which became heavily silted. Mr Greenbank then excavated two watercourses below culverts he had installed to remove the sediment. Both watercourse beds and banks were excavated for about 60 metres downstream. Mr Greenbank then diverted these two watercourses to a newly formed drain and then filled in or completely excavated the original watercourses in order for the driveway to run through where they had been.
[32] In explanation, Mr Greenbank said he wanted a driveway not a ski-ramp. He also said he was not aware of the rules regarding earthworks and work within the waterways. The sentencing Judge adopted a starting point of $45,000 and gave discounts of five per cent for good character and 25 per cent for an early guilty plea. The final sentence imposed was $32,062.50.
Waikato Regional Council v Okawa Limited & Greener Earthmoving Limited12
[33]In Okawa the length of the stream bed affected was less than the present case
– at 1,063 metres. Okawa had engaged a contractor to mechanically clean the full length of the Mangakaeo Stream and tributary within its property, which included the excavation of a substantial length of the stream bank and bed. The director of Okawa referred to the stream and tributary as drains. He said he had cleaned the drains with a digger numerous times in the past to clear silt, which he believed was the result of discharge from a nearby quarry. The director acknowledged being told by the quarry’s environmental service manager that a resource consent would be required to undertake the work. He said he discounted that advice because he did not trust him.
[34] The Judge said a starting point of $65,000 to $75,000 was not untoward. She said she fell short of adopting a starting point within this range on this occasion because she was of the view that a further warning to the farming and earthmoving/contracting industry should be signalled. The Judge said:13
12 Waikato Regional Council v Okawa Ltd [2018] NZDC 7725.
13 At [63] (footnote omitted).
The opportunity to reread many of the cases provided to me reveal that the message about the need for caution when excavating waterbodies, particularly where they maybe viewed as “drains”, is still not being fully appreciated. It is somewhat concerning that the Court has been talking about these sorts of matters for many years.
[35] The Judge therefore adopted a lesser starting point of $45,000 for Okawa. She took into account the extent of the excavation, the likely impact on the environment and her findings that the offending was reckless. Discounts of five per cent for previous good character, three per cent for remorse and 25 per cent for a guilty plea were granted, which led to a fine of $31,500.
Discussion of starting point
[36] In my view, the decisions provided show that there is a range available to the Court when determining a starting point for the offending. GFL is a limited liability company and, accordingly, the maximum fine is $600,000. This can be compared to the maximum fine of $300,000 for an individual. Mr Veen was prosecuted as an individual and the starting point adopted for him was $37,000. Mr Greenbank was also prosecuted as an individual and the starting point adopted for him was $45,000. There is an argument that starting points for companies should, as a matter of principle, be greater than starting points for individuals because the maximum fine for companies is double that for individuals.
[37] Counsel for GFL urged me to, nonetheless, treat GFL in much the same way as an individual because, in effect, it was a husband and wife operation not on the scale of large commercial operations. I acknowledge that to be case and, accordingly, will not uplift what I consider to otherwise be the appropriate starting point for an individual because the appellant is a company.
[38] Of the cases cited, I am of the view that Veen and Okawa are the most similar. In Veen, however, the length of the stream affected was considerably less than the present case. A starting point of $37,000 was adopted. In Okawa, the Judge said a starting point of $65,000 to $75,000 was not untoward, but settled on a lower figure of $45,000 with a warning to the farming sector.
[39] I am of the view that the starting point adopted of $45,000 is therefore within the range that can properly be justified by accepted sentencing principles. No error on the part of the sentencing Judge in adopting the starting point has been identified.
Discount for guilty plea
[40] Counsel for GFL submits that the Judge erred by not giving the appellant full credit for its guilty plea (25 per cent). Instead, the Judge allowed 20 per cent.
[41]The prosecution timeline is as follows:
(a)GFL was summonsed to appear in the Thames District Court on 12 October 2021.
(b)Before 12 October 2021, and without input from GFL, the Court adjourned the case to 9 November 2021.
(c)On 7 November 2021, counsel for GFL filed a memorandum seeking a sentence indication. At the time of filing, counsel understood that there was time available on 30 November 2021 for a sentence indication hearing and proposed a timetable for the filing of submissions.
(d)Sometime after 7 November 2021, and without any further input from GFL, the Court adjourned the case to 21 December 2021.
(e)On 14 December 2021, counsel for GFL requested the case be transferred to the Hamilton District Court because there was no Environment Court Judge in Thames, endeavouring to speed up the process.
(f)The Court then adjourned the case to a nominal date of 14 January 2022 in the Hamilton District Court for the Registry to identify an available sentence indication hearing date.
(g)On 14 January 2022, the Court allocated a sentence indication hearing for 8 February 2022.
(h)On 8 February 2022, a sentence indication hearing was held before Judge Dickey who reserved her decision. This was the first appearance of GFL in Court.
(i)Judge Dickey issued her sentence indication decision on 26 May 2022.
(j)GFL filed a memorandum dated 12 June 2022 accepting the sentence indication and advising that it would plead guilty.
(k)GFL entered a guilty plea by counsel on its second appearance in Court on 1 August 2022.
(l)GFL was sentenced on 7 October 2022.
[42] Subpart 4 of the Criminal Procedure Act 2011 provides for a defendant to seek a sentence indication. Section 60 provides that a sentence indication is a statement by the Court that, if the defendant pleads guilty to the offence alleged in the charge, at that time, the Court would or would not (as the case may be) be likely to impose on the defendant a sentence of a particular type or types and of a particular quantum.
[43] Counsel for GFL submits that the words “at that time” ought to be interpreted to mean when the sentence indication is requested. When considering whether the guilty plea was entered at the earliest opportunity (in which case GFL would be entitled to a full 25 per cent discount) GFL should not be disadvantaged where there is a delay in obtaining a sentence indication. In this case, the sentence indication was sought before GFL’s first appearance on 7 November 2021.
[44] The guideline decision in respect of guilty plea discounts is the Supreme Court decision in Hessell v R.14 The Supreme Court overturned the Court of Appeal decision, but made reference to it as follows:15
[19] The judgment also spelt out what the Court meant by “first reasonable opportunity” to plead guilty (generally the first or second appearance) and stipulated the date should not be extended because the defendant was engaged in plea bargaining, disputing the prosecution’s summary of facts, challenging the admissibility of evidence, or was awaiting a sentence indication. The Court also emphasised that the maximum discount was to be available only to those prepared to acknowledge their guilt at the outset.
[45] The Court went on to set out the various policy reasons behind a guilty plea discount, noting:16
[45] In the administration of criminal justice, courts give credit in sentencing for a guilty plea principally for policy reasons. The policy expressed in s 9(b) reflects the benefits that a guilty plea delivers to the administration of justice and to those who otherwise must participate in the trial process. Avoiding the need for a trial saves the government costs associated with the judiciary and providing prosecution and defence services (the latter most often through legal aid). There are also savings and fees paid to witnesses and jurors and in costs associated with the use of court facilities. Another benefit is the reduction in the backlog of trials. The number and length of criminal trials has increased, with consequent delays in persons charged facing trial. This impedes the effective operation of the system in the interests of justice. As well as such savings in public expenditure and demands on state resources, the social utility of guilty pleas includes benefits for witnesses and, in particular, victims who are speared the stress of giving evidence in the adversarial context of a criminal trial. A guilty plea often also assists victims and their families through its acknowledgement of responsibility for the offending. Even very late pleas will usually generate some of these systemic and social benefits. These considerations are based on expediency and social utility but are of importance to the effective operation of the criminal justice system. In consequence, it is now generally recognised that providing encouragement for guilty persons to admit their guilt is a necessary incident of criminal justice.
[46] The Supreme Court made it clear that the extent of any discount should remain within the sentencing court’s discretion and that Judges should have regard to the degree to which the plea of guilty facilitates the administration of the criminal justice system and the objective circumstances in which the plea of guilty was made including
14 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
15 Above n 14.
16 Footnote omitted.
whether the offender pleaded guilty at the first reasonable opportunity to do so and whether the offender had legal representation.
[47]Additionally, the Court noted:17
… if the circumstances indicate that a defendant is not fully prepared to acknowledge guilt at the outset, that must be factored into the sentence. The requirement that a defendant must always plead guilty before entering the disputed facts process to get the maximum discount is too rigid. The better course is to permit sentencing Judges to assess the value of the plea in the particular circumstances, without a rigid requirement for application of a scale of discounts (dependent on the exact timing or the plea). The same approach should apply where the defendant has exercised his or her right to challenge to the admissibility of evidence.
[48] The Supreme Court here instanced the disputed facts process or a challenge to the admissibility of evidence. It could equally have instanced the sentence indication process as the Court of Appeal did in the passage quoted by the Supreme Court.
[49] In the present case, the Judge was best placed to assess the value of the plea in the particular circumstances without a rigid requirement for application of a scale of discounts dependent on the exact timing of the plea. The fact that a sentence indication is sought before the first call should not automatically mean that a full 25 per cent discount is appropriate.
[50] The fact that a sentence indication was sought by itself set up a process that took many months, even acknowledging that GFL did not cause or contribute to those delays. The delays were systemic and costly to the community.
[51] Furthermore, the fact that in many other cases a full 25 per cent discount may be granted, for example, where a sentence indication is not sought until the case review hearing, does not mean that the Judge fell into error in granting a 20 per cent discount in this case.
[52] In any event, the difference in penalty is not so large if a 25 per cent discount had been applied that an adjustment is required. If it had been applied, it would have resulted in a fine of $29,250 rather than the $31,500 actually imposed. It should be
17 Above n 14, at [61].
remembered that the Supreme Court eschewed a rigid requirement for application of a scale of discounts. GFL has been unable to satisfy me that the Judge fell into error. The issue was fully argued and the Judge’s decision well reasoned.
Parity
[53] Section 8(e) of the Sentencing Act 2002 provides that in sentencing or otherwise dealing with an offender the Court must take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offences in similar circumstances.
[54] Here, GFL and SBL were co-offenders. GFL owned the property and engaged SBL to do the work. SBL followed GFL’s instructions without querying them. Because of SBL’s experience, the previous warning and failure to make enquiry, the Judge viewed SBL as more culpable. She therefore set the starting point for SBL at
$60,000, compared with $45,000 for GFL. It could be argued that if GFL’s fine was reduced on appeal from $31,500 to $16,250, it would no longer be consistent with the fine of $45,000 imposed on SBL. However, while consistency is a necessary value, it does not impose absolutes. In the present case, the Judge found that despite engaging SBL, GFL should also have enquired about the legality of the proposed works either from Council or SBL. The works were of “some significance and should have triggered for GFL the need to may enquiry”. The work undertaken adversely impacted approximately 1,390 metres of watercourse and had a low to moderate effect on the environment.
[55] While some disparity in the starting points is warranted because of SBL’s extensive experience in the industry and the previous warning it received, the difference in culpability would not justify such a variation in penalty.
Result
[56]The appeal is dismissed.
Woolford J
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