Lal's Transport Ltd v Auckland Council HC Auckland CRI 2011-404-16
[2011] NZHC 1275
•10 October 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2011-404-16
BETWEEN LAL'S TRANSPORT LIMITED Appellant
ANDAUCKLAND COUNCIL Respondent
Hearing: 7 June 2011
Counsel: A S R Kashyap for Appellant
S H Smith for Respondent
Judgment: 10 October 2011
JUDGMENT OF KEANE J
This judgment was delivered by on 10 October 2011 at 4pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Date:
Solicitors:
A S R Kashyap, Auckland for Appellant
Simpson Grierson, Auckland for Respondent
LAL'S TRANSPORT LIMITED V AUCKLAND COUNCIL HC AK CRI 2011-404-16 10 October 2011
[1] In a reserved decision, dated 15 November 2010, given in the District Court, Auckland, Judge Harland, sitting as an Environment Judge in the summary criminal jurisdiction of the Court, convicted and sentenced Lal's Transport Limited, on its plea of guilty, of a continuing offence against s 338(1)(a) of the Resource Management Act 1991.
[2] LTL's offence lay in its continuing use of land at two addresses, 78 and 80
Totaravale Drive, Sunnynook, between 31 October 2009 and the date of the information, 9 August 2010. In its use of the land, as LTL accepted by its plea, it had contravened the District Plan. It had used the land, two addresses in a residential zone, as a transport depot for its CourierPost delivery business; and, as the Judge found, not merely deliberately but persistently.
[3] The Judge fined LTL $18,000 and awarded to the prosecuting authority, the Auckland Council (originally the North Shore City Council), 80 percent of the fine imposed. The Judge declined the Council's application for an enforcement order. On this appeal LTL contends on six grounds that the fine imposed is excessive.
[4] Grounds one and two are not conventional. They go to whether the Judge was entitled to conclude that LTL had, in the complete sense charged, committed the offence to which it had admitted. LTL argued that the agreed statement of facts contradicted, and amended, one particular amplifying the charge, and that the Judge also made a finding of fact inconsistent with that particular. The particular in issue asserted that LTL had operated a transport depot at both addresses.
[5] Grounds three to five are on their face, by contrast, more conventional. They go to whether the fine was excessive. Although the Judge imposed sentence on agreed facts and there was no dispute of fact identified as having to be resolved under s 24 of the Sentencing Act 2002, LTL again challenges not merely the Judge's inferences, but the primary facts on which she relied. In this LTL relies on contested affidavit evidence filed as to the need for an enforcement order.
[6] Ground six is the only ground of appeal that is truly orthodox. LTL contends that the fine imposed lay beyond LTL's means to pay and was likely to force it into liquidation. In that sense also, LTL contends, the fine imposed was manifestly excessive.
[7] Despite the unorthodox state of the primary grounds of appeal, I have concluded that it must be allowed and for a very confined reason. As a matter of law, I have concluded, the Judge could not, as she did, resolve the dispute of fact to which grounds three - five relate on the affidavits as to the need for an enforcement order. She could only do so on a full hearing of evidence under s 24 of the Sentencing Act
2002.
Evolution of case
[8] On 17 May 2010 LTL entered a not guilty plea to the charge set out in the information and Judge F W M McElrea, sitting as an Environment Judge in the summary criminal jurisdiction of the District Court, adjourned the case to 19 August
2010 for a one and a half day fixture. He directed the Council to file a statement of essential issues, LTL to file any admissions under s 9 of the Evidence Act 2006 and counsel to join in a memorandum of agreed facts and matters in dispute.
[9] On 19 August 2010, at the fixture given, LTL entered a late plea of guilty. Judge L J Newhook, also sitting as an Environment Judge in the summary jurisdiction, did not convict LTL of the offence. He adjourned the case to 13 October
2010 both for sentence, and to resolve an application the Council wished to make for an enforcement order. The Judge directed that sentencing submissions, and the application for an enforcement order and related affidavits, be filed in advance.
[10] On 13 October 2010, Judge Harland, the sentencing Judge, also an Environment Judge sitting in the summary jurisdiction, received the agreed summary of facts and the application and affidavits and heard the submissions. To obtain further financial information about LTL and a draft enforcement order, she adjourned sentence until 11 November 2010. On that date the Judge reserved her decision,
which she issued four days later, convicting LTL and imposing the sentence under appeal.
Sentence under appeal
[11] Judge Harland concluded in her decision under appeal that LTL had offended as charged deliberately and in an ongoing way, and had shown an 'arrogant disregard for the rights of others in the neighbourhood'. Attempts by the Council to have LTL desist, meetings, letters and several abatement and infringement notices, she held, had come to nothing. The Council had been obliged to prosecute.
[12] The Judge rejected LTL’s contention that it could not have used the two addresses in the cul-de-sac as a depot if, as was the case, it then had a depot at Highbrook and, once charged, a yet further base elsewhere. She rejected LTL’s argument that the Council had overstated the extent to which it had infringed.
[13] The Judge did not accept, as LTL contended, that a significant number of the truck movements in the cul-de-sac were legitimate. Nor did she accept that GPS devices that LTL had fixed to its trucks, after it was charged, showed that it had largely if not completely ceased to offend. As to all these issues she preferred the affidavit evidence of the Council, and the victim impact statements of, and a petition from, nearby residents.
[14] In fixing the fine, the subject of this appeal, the Judge took as a starting point
$20,000; a figure advanced by the Council that she described as conservative, indeed light, because it relied on two sentencing decisions of the District Court given before the large increase in the maximum penalty in 2009.1 (On 1 October 2009 the maximum fine for a corporate entity, as opposed to a natural person, tripled from
$200,000 to $600,000.2)
[15] In this the Judge rejected LTL’s argument that a significantly lesser fine was called for because there had not been any tangible effect on the neighbourhood. The Judge said this:
Adverse effects on residential amenity are environmental effects and it is unacceptable to assert that they are somehow less important than the physical effects of pollution. It is always a question of degree.
A fine, the Judge said also, should not simply be seen as 'a licence to offend'. Offending, she said, must carry 'some real consequences for continued breaches'.
[16] Conversely, the Judge did not, as invited by the Council, treat LTL's 'poor attitude' as an aggravating feature requiring an uplift. She had, she said, taken that into account in fixing the starting point. She allowed a 10 percent discount for LTL’s plea on the first day of the hearing; a discount she regarded as 'rather generous'. As to the issue whether LTL could afford a fine, the Judge held that it could.
[17] The Judge decided, as she said by a 'narrow margin', not to make an enforcement order against LTL. LTL, she accepted, had been 'particularly lax'. It had attempted to minimise its offending. She was satisfied, however, that the fine she imposed should prove an adequate deterrent. If LTL offended again, she said, the Council could always prosecute and seek an enforcement order then.
Appeal principles and powers
[18] LTL invokes the general right to appeal a conviction and sentence given by s
115 of the Summary Proceedings Act 1957. Such an appeal is by way of rehearing.3
[19] On an appeal this Court may make such order as it thinks fit.4 It may quash the sentence imposed and impose any, whether more or less severe, that the sentencing Court could have imposed.5 But this Court may only do so once it is satisfied that the sentence was clearly excessive or inadequate or inappropriate, or
that 'substantial facts relating to the offence or to the offender's character or personal history were not before the Court imposing sentence'.6
[20] On an appeal against sentence the Court also has the ability to 'remit the determination appealed against' to the District Court for rehearing.7
First two grounds - implicit amendment to charge
[21] LTL's first ground of appeal is that the Judge erred in fact in finding that LTL operated a courier business from the two addresses. The summary of facts agreed, LTL contended, disclosed that it had operated an office at one of those addresses only. The Judge was wrong, secondly, LTL continued, to conclude that it had operated a courier business from those addresses when, as she had accepted, it had a depot at Highbrook.
[22] Neither of these grounds for appeal withstands scrutiny, when contrasted with the charge to which LTL pleaded, which could not have been more explicit.
[23] LTL's offence lay, as it necessarily accepted by its plea, in having 'used land in a manner that contravened a rule in a District Plan', an offence against s 338(1)(a) of the Resource Management Act 1991. That offence involved, as it accepted also, both the addresses specified in the charge, 78 and 80 Totaravale Drive, Sunnynook. That offence, it necessarily accepted finally, continued from 31 October 2009 until the date of the information.
[24] By its plea, moreover, LTL necessarily accepted as well that it had offended as described in the four particulars amplifying the charge. They were as follows:
1.During the relevant period the defendant operated a transport depot for CourierPost trucks at 78 and 80 Totaravale Drive, Sunnynook (Property).
2. The presence of the CourierPost trucks parked on and outside the
Property is a breach of rule 16.3.2 of the District Plan.
3.The operation of a transport depot on the Property requires resource consent under the District Plan due to non compliance with the home occupation rules in the District Plan.
4.No resource consent has been issued that would authorise the operation of a transport depot on the Property.
[25] In accepting those particulars by its plea, LTL once again necessarily accepted that it had conducted a transport depot at both the addresses in the cul de sac and that, in doing so, it had parked its fleet of trucks in varying numbers at or outside both properties.
[26] LTL cannot on this appeal deny any of these particulars because of an arguable inconsistency between them and the agreed statement of facts or any apparent finding of the Judge. They comprised part of the charge itself, their purpose being to inform LTL fairly of 'the substance of the offence'.8 To deny any of these particulars, which were consistent with and merely amplified the offence alleged in essence, LTL had either to deny the charge outright as it first did or, however optimistically, seek an amendment.9
[27] LTL chose to do neither. The Judge was right to say on sentence that, having admitted the charge, it was 'somewhat curious' that on the sentence LTL denied operating a transport depot at 80 Totaravale Drive. That has to be an understatement. The Judge was entitled to sentence LTL for the offence as amplified in the particulars.
Grounds three to five - fine excessive
[28] In its next three grounds of appeal LTL contends that the fine the Judge imposed was manifestly excessive. Essentially, LTL contends, the Judge overstated
how serious LTL's breaches of the rules were and she gave undue weight to any
8 Section 17 Summary Proceedings Act 1957; Police v Wyatt [1966] NZLR 1118, 1133; Auckland
Regional Council v URS New Zealand Ltd [2009] DCR 227 (DC).
9 Section 43 Summary Proceedings Act 1957.
resulting damage to the environment. There was no actual damage, LTL maintains. The only effect was visual.
[29] These grounds of appeal, as I said earlier, may seem conventional enough, but they arise from this; that on sentence, as a result of the way in which the case evolved, the Judge was confronted both with an ostensibly agreed statement of fact and with affidavit evidence as to the need for an enforcement order in which there was conflict as to the facts ostensibly agreed.
Agreed fact summary
[30] The agreed summary of fact on which the Judge was invited to sentence LTL was on its face comprehensive and consistent with the offence charged and admitted. It was supplemented by a selection of photographs taken by a nearby resident on which the Council relied as to the extent of LTL's continuing offending, which ostensibly were also undisputed.
[31] Under the heading 'the defendant and the locality' the summary narrated that LTL had been incorporated in 1997, that it had no previous convictions, that it owned two trucks, two vans, a 12 seat mini bus and two cars, and that Mr Lal himself owned a truck. More materially, it narrated that LTL's registered office was at 80
Totaravale Drive and that 'the offence the subject of this charge has occurred at 78 and 80 Totaravale Drive (Properties) from which the defendant operates a business'.
[32] In the next two sections 'the defendant's actions' and 'the district plan provisions', the statement narrates in greater detail the nature and extent of LTL's offence. The latter section more naturally comes first and says this:
The Properties where the defendant company operates is (sic) within the territory administered by the Council and is in the residential 4 zone.
In relation to home occupations, the North Shore City District Plan 2002 (District Plan) provides that:
(a) Non-resident employees and visitors on the site, for the purpose of the home occupation, shall be limited to the hours 8:00am to 6:00pm Monday to Friday inclusive, and 9:00am to 6:00pm Saturday. In general, all other activities which form part of the home occupation,
including vehicle trips, shall not be permitted between 10:00pm and
8:00am. (Rule 16.6.3(2)(e));
(b) The activities shall be carried out wholly within the residential unit or within an accessory building erected or modified for that purpose, provided that in relation to an accessory building, the maximum area that may be used for this purpose is the equivalent of 25% of the gross floor area of the main residential unit. (Rule 16.6.3.2(f));
(c) There shall be no exterior storage, display or other indication of the home occupation or variation from the residential character of the site or neighbourhood, other than a sign allowed under the Plan. (rule 16.6.3.2(g));
(d) Only one non-domestic vehicle used in conjunction with the home occupation shall be stored on the site (Rule 16.6.3.2(j));
(e) All car parking requirements are complied with, including the provision of one parking space for each non-residential employee. (Rule 16.6.3.2(k));
(f) Noise levels between the hours of 8:00am to 6:00pm Monday to Friday inclusive, and 9:00am to 6:00pm Saturday shall be no more than 45dBA L10 and at all other times there shall be no audible noise. (Rule 10.5, Table 10.2C).
[33] Under the heading, 'the defendant's actions', the agreed statement was no less explicit:
The CourierPost vehicles are driven by contract drivers, including Mr Lal himself. Apart from Mr Lal and a contract driver who rents 78 Totaravale Drive, the contract drivers do not reside at the Properties.
On occasions the vehicles' engines, including a truck, have been started up as early at 2am. On some occasions the engines have been left running for approximately five minutes before the truck departs from the site. On occasions the trucks have returned as late as 11pm.
On occasions the CourierPost vehicles require minor maintenance and cleaning of the vehicles which are undertaken at the Properties. In June 2009 the cleaning of a CourierPost truck was the subject of a complaint to the Auckland Regional Council. Photographs taken as recent (sic) as 29
November 2009 show one of the CourierPost vehicles being washed.
The Council has taken various steps to address this issue with the owners of the Properties. Because of Mr Lal's role as director of Lal's Transport, the defendant knew or ought to have known of those steps and that the Council took issue with the CourierPost vehicles parked at the Properties. At times the defendant has taken steps to address the problem.
In September 2009 the Council was informed by a member of the public that the CourierPost vehicles were still being parked at the Properties. Photographs taken between 31 October 2009 and 8 August 2010 confirmed
the presence of the CourierPost vehicles. This situation has repeated on a regular basis since, a recent example of which occurred on 8 August 2010.
Since October 2009 the defendant has been in breach of the Home Occupation Rules in the District Plan. That offence occurred intermittently since and is a continuing offence pursuant to s 339(6) of the Act. The defendant says that while it has breached the District Plan Rules, that breach is only minor and technical.
[34] In the final section of the statement the Council invited the Judge to fine LTL, to direct that it receive 90 percent of the fine and costs, and to make an enforcement order under s 314 of the Resource Management Act 1991 directing 'the removal of the CourierPost vehicles from the Properties'. LTL, the statement concluded, contested that necessity for any such order.
LTL affidavit evidence
[35] In an affidavit, dated 5 October 2010, made to oppose the enforcement order applied for, Mr Lal said that LTL conducted its courier business from a Highbrook address but that he and his family lived at 80 Totaravale Road, and that he had an office there from which he controlled LTL's employees by phone and from which also he paid them their wages. He denied that this address constituted a CourierPost depot.
[36] Mr Lal denied equally that LTL kept trucks at either 78 or 80 Totaravale Road contrary to the District Plan. Two trucks, he said, were parked at the end of the working day at Highbrook. One truck, he said, had been parked at number 78 only because the driver was his tenant. The van, he said, was housed at number 80, as was the truck he himself owned. The three remaining vehicles, the mini bus and two cars, he said, were all for his family's use.
[37] Mr Lal contended that because he and his family had lived at number 80 since 1993 and purchased number 78 shortly after, they had existing use rights when the District Plan was formulated in 2002; rights to use the office at number 80 and to park two vehicles there. The only instances, he contended, when more than one truck was parked at the property was when one had broken down and could not be taken to a garage, or when a driver visited him between pick ups.
[38] As to the issue of driving out of hours, Mr Lal conceded that his tenant at number 78 might have left earlier than 6 am to travel to the far side of the city. But that, he said, was occasional. After the complaint was made, he said, he ensured that all trucks and the van were stored at Highbrook, and he installed GPS devices to record where the trucks and van went and when. A schedule he produced showed, he said, that they were used within normal business hours.
[39] Mr Lal discounted the photographs attached to the agreed statement showing trucks and vans parked at number 80. They were not stored there normally, he said, or for long periods. At any one point there might be a number there. But that was during normal business hours. The photographs were too unsystematic to disclose any pattern. The trucks, he said, caused no damage. At most, they might have inconvenienced, at times, the neighbour who had complained and given a victim impact statement.
[40] The Council filed contrasting evidence, supporting the agreed statement of facts that was accepted by the Judge, to which I need only refer when setting out her findings.
Judge's findings
[41] Even accepting, the Judge said, that LTL had a depot at Highbrook, LTL did not dispute that drivers called at numbers 78 and 80 during the business day and parked there. They collected their wages there. Photographs showed that in 13 instances between 7 November 2009 - 8 August 2010 a number had been present. In one instance four completely dominated the cul de sac.
[42] The trucks might not, the Judge accepted, have been there for extensive periods throughout the working day. But they had been there and, though Mr Lal had provided photographs between 12 September 2008 - 24 April 2010 showing only one or two trucks there, she had no difficulty, the Judge said, in finding that the properties had been used as a transport depot. She then set out the contending assertions in the affidavits as to the extent of the offence.
[43] A Council analysis of LTL's GPS records, and affidavit evidence, she said, disclosed that between 24 April - 9 August 2010 LTL had breached the rules 42 times. As against that, she said, LTL contended that half could be attributed to a driver living in a street parallel to Totaravale Drive, Athena Drive, joined by an access way. She recorded also LTL's assertion that any remaining breaches could not have lasted more than 15 - 20 minutes. Also that Mr Lal himself was entitled to retain a truck in the cul de sac as a resident.
[44] The Judge found, nevertheless, that there had been an adverse effect on the environment. The amenity value of the neighbourhood, she found, had been adversely affected visually and as a result of out of place noise. In this the Judge drew on a victim impact statement complaining of 'the constant coming and going of the trucks at all hours of the day and night', engines revving, horns sounding and vehicles parked 'all over the cul de sac'. That neighbour, she said, was concerned about the effect of truck maintenance on weekends. Also that the trucks had rendered the cul de sac unsafe.
[45] This complaint, the Judge said, did not stand alone. It was supported by a petition of 13 residents at seven addresses in the street, who complained of 'ongoing
24 hour commercial traffic and parking with multiple trucks and courier vans in our quiet cul de sac'. On that basis the Judge concluded that LTL had offended not merely deliberately but persistently, and arrogantly, and she imposed the fine under appeal.
Jurisdiction on sentence
[46] Whether this dispute of fact should have arisen as it did, or been resolved as it was, turns on the two issues I identified at the outset, whether the Judge should have been obliged to take into account affidavit evidence when deciding the need for an enforcement order, and whether she could resolve any disputed issue of fact on sentence without hearing evidence under s 24 of the Sentencing Act 2002.
[47] The answers to these two questions, each in turn, depends first of all on which of her jurisdictions the Judge was exercising. An Environment Judge is also,
and has to be, a District Court Judge.10 Those jurisdictions may be coextensive. But they are quite distinct.
[48] An Environment Judge sits as a member of the Environment Court.11 The Judge is clothed with the jurisdiction of that Court; a jurisdiction conferred by the Resource Management Act 1991 and also by other statutes.12 That Court in the exercise of its jurisdiction has the powers of a District Court in the exercise of its civil jurisdiction.13
[49] Where an offence is alleged against the Resource Management Act 1991, where that is to say the offence alleged is one of those specified in s 338, an Environment Judge must normally preside at any trial or sentence unless the Chief District Court Judge decides otherwise, but he or she sits as a District Court Judge in
the criminal jurisdiction of that Court, whether at the trial or summary level.14 In this
instance the Judge was sitting in the summary jurisdiction.
Enforcement order
[50] It appears that the Judge on sentence was confronted with an application for an enforcement order and affidavit evidence because at the preceding hearing such an application had been assumed to be called for.
[51] In the Environment Court, certainly, an enforcement order can only be made on application and on notice.15 There, before any order may be made, the applicant and respondent are accorded a specific right to be heard.16 To determine the application the Judge must exercise a prescribed power of decision, which is
expressed negatively as well as positively.17 Only then may the Judge make an
10 Resource Management Act 1991, s 249, 250.
11 Section 248.
12 Section 247.
13 Section 278.
14 Section 309(3).
15 Sections 316, 317.
16 Section 318.
17 Section 319.
enforcement order in one of the forms that s 314, which defines the scope of an enforcement order, permits.
[52] When imposing sentence for an offence against s 338, however, the Judge, even if an Environment Judge, in exercise of the criminal jurisdiction of the District Court, may impose any of the penalties that s 339 prescribes. He or she may imprison, or fine, or impose any related sentence like community work; or 'instead of or in addition to imposing a fine or a term of imprisonment', make one of 'the orders
specified in section 314'.18
[53] The result is that on sentence an enforcement order is simply a penalty like any other. The Judge may impose that penalty, relying solely on the power s 339 confers. The procedure governing the making of enforcement orders in the Environment Court has no place. The Judge does not need an application or affidavit evidence. The contrary is the case. Neither has a place in the sentencing process.
[54] In the Environment Court an application for an enforcement order is a civil proceeding and the applicant carries the burden of proof to the balance of probabilities heightened on account of the coercive nature of such an order.19 That is
not the position on sentence. As to that the Sentencing Act 2002 is paramount.20
Section 24 Sentencing Act 2002
[55] Section 24 of the Sentencing Act 2002 governs 'proof of facts' on sentence, and it distinguishes between those facts on which a Judge may or must rely in imposing sentence and those which he or she may have to resolve because they are in dispute.
[56] Section 24(1) governs those facts on which a Judge may or must rely and it says this:
18 Section 339(5).
19 Christchuch CC v Ivory [1994] NZRMA 442 (PT); Marlborough DC v New Zealand Rail Ltd
[1995] NZRMA 357 (PT).
20 Selwyn Mews Ltd v Auckland City Council HC Auckland CRI 2003-404-159-161, 30 April 2004.
In determining a sentence or other disposition of the case, a court—
(a) may accept as proved any fact that was disclosed by evidence at the hearing or trial and any facts agreed on by the prosecutor and the offender; and
(b) must accept as proved all facts, express or implied, that are essential to a plea of guilty or a finding of guilt.
[57] Where facts are in dispute and they are 'relevant to the determination of ... sentence or other disposition of the case', the Judge comes under the duty imposed by s 24(2)(a), which is this:
the court must indicate to the parties the weight that it would be likely to attach to the disputed fact if it were found to exist, and its significance to the sentence or other disposition of the case:
[58] That apart, where either party wishes to rely on any disputed fact, unless the Judge considers that fact already established on evidence, or admitted by plea, that party may adduce evidence as to its existence.21 And that has to be by way of oral
evidence. Each party has the right to cross-examine any witness called by the other.22
Nothing less, moreover, could suffice because to prove a disputed fact the prosecutor must discharge a high burden. Section 24(2)(c) says this:
the prosecutor must prove beyond a reasonable doubt the existence of any disputed aggravating fact, and must negate beyond a reasonable doubt any disputed mitigating fact raised by the defence (other than a mitigating fact referred to in paragraph (d)) that is not wholly implausible or manifestly false:
[59] The defence also comes under an onus to prove to the civil standard the existence of any disputed mitigating fact. A mitigating fact is not, however, one going to the offence.23 The onus only arises as to 'the existence of any disputed mitigating fact that is not related to the nature of the offence or to the offender's part
in the offence'.24
21 Sentencing Act 2002, s 24(2)(b).
22 Section 24(2)(e).
23 Section 24(3).
24 Section 24(2)(d).
[60] Disputed hearings of fact occur in the context of prosecutions for offences against the Resource Management Act just as they do in any other. Plateau Farms Ltd v Waikato Regional Council25is a very apposite example.
Conclusions
[61] In this instance, as I have found already, the Judge was obliged to sentence LTL on all the facts as set out in the charge, to which LTL acceded by its plea. But those facts, though they establish LTL's offence, are not enough to establish how serious relatively that offence was.
[62] The Judge was also entitled, indeed obliged, to sentence LTL on the facts set out in the agreed fact summary to the extent that they were undisputed. To the extent that they were disputed, however, and as the contrast between the affidavits and the agreed statement shows they were almost completely disputed, the Judge could only resolve what facts were secure on a hearing of disputed fact under s 24. She could only sentence LTL on disputed facts advanced by the Council, once satisfied, on admissible evidence, and beyond reasonable doubt, that those facts were truly secure.
[63] The Judge was not entitled to sentence LTL relying on the affidavits filed for and against the making of an enforcement order. Nor was she entitled to rely on the victim impact statement, which was relevant to sentence only once the facts were secure.26 Nor was she entitled to rely on the neighbourhood petition; a hearsay
collective expression of lay opinion on the primary issue in dispute.
25 Plateau Farms Ltd v Waikato Regional Council HC Rotorua CRI 2007-463-16, 17 September
2007.
26 Law Commission Report 76, Proof of Disputed Facts on Sentence at [23].
Sixth ground - ability to pay fine
[64] Finally, LTL contends, in its sixth ground of appeal, the Judge erred in law in holding that the fine she imposed was within its means to pay and that she was not imposing on LTL a liability that would render it insolvent.
[65] The issue to which this ground of appeal gives rise is whether the Judge was right to conclude by looking beyond LTL's cashflow to its overall position that it could meet the fine and its then outstanding debts, a tax debt principally, either by selling assets or by the shareholders reducing their drawings or injecting equity.
[66] The Judge was right to resolve this issue under s 40 of the Sentencing Act
2002, which required her when fixing the fine to 'take into account in addition to the provisions of ss 7 - 10, the financial capacity of the offender' and to do so whether the effect was to increase or reduce the amount of the fine.
[67] The Judge could, had she chosen, and if 'uncertain about the offender's ability to pay the fine', have directed LTL to make a declaration as to financial capacity.27 (A declaration must be comprehensive of all sources of income, assets, liabilities and outgoings28 and the making of a false or misleading declaration is itself an offence.29) She could equally, as she did, rely on some other source that she was satisfied was reliable.30
[68] The Judge was entitled, finally, as she did, to take a broad perspective; to look past LTL's present assets and income to its likely future position.31 She was entitled to 'look at the economic realities by lifting the corporate veil as far as is necessary to ensure that justice is administered justly and accurately'.32 That, of
course, is the ultimate issue.
27 Sentencing Act 2002, s 41(2).
28 Section 42.
29 Section 43.
30 Section 41(3).
31 R v Briggs CA323/84, 9 May 1985.
32 East Bay Heli Services Ltd v R HC Rotorua AP53/03, 13 November 2003 at [45].
[69] This is an issue that will have to be revisited as a result of the decision on this appeal that I am about to give. I express no view about the merit of the point as to which there is likely now to be more contemporary evidence.
Outcome
[70] The sentence under appeal was imposed by a process inconsistent with s 24 of the Sentencing Act 2002 and for that reason alone must be set aside. I am unable myself to sentence LTL on the papers as they are because the dispute of fact that must be resolved can only be answered by a full hearing of evidence. I quash the
sentence and remit the case to the District Court for sentence to be reimposed.
P.J. Keane J
0
0
1