Lau v R - [2018] NZCA 151

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA69/2018
[2018] NZCA 151

BETWEEN	EE KUOH LAU Appellant
AND	THE QUEEN Respondent

Hearing:	16 April 2018
Court:	Cooper, Dobson and Toogood JJ
Counsel:	A S R Kashyap for Appellant A J Ewing for Respondent
Judgment:	16 May 2018 at 10 am

JUDGMENT OF THE COURT

AThe appeal against sentence is dismissed.
BThe appellant is to surrender himself to the Registrar at the Auckland District Court (Criminal Counter, Level 1, 65–69 Albert Street) no later than 10.00 am on Friday 18 May 2018 to resume his sentence of imprisonment.

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REASONS OF THE COURT

(Given by Toogood J)

Ee Kuoh Lau (also known as Augustine Lau) is a property developer and the sole director of a company which had a lease over the rural property at 18 Weranui Road, Waiwera. The property features areas of pasture and substantial areas of regenerating and remnant coastal forest said to be of significant ecological value. Mr Lau appeals against a sentence of two months and two weeks’ imprisonment imposed by Judge Kellar in the District Court at Auckland on 24 January 2018[1] after he had pleaded guilty to a charge that he had contravened or permitted a contravention of the Resource Management Act 1991 (the Act) by damaging six pōhutukawa trees and one tōtara tree on the site.[2]
[1][R] v Lau [2018] NZDC 1133.
[2]Resource Management Act 1991, ss 9(2), 9(3) and 338(1)(a).
At first sight, a sentence of imprisonment for any period in response to the destruction of seven trees may seem unjustifiably heavy-handed, particularly given the availability of alternatives to imprisonment in community-based sentences such as community service, community detention and home detention. And, as sentencing judges and counsel involved in criminal cases well know, an important sentencing principle requires the court to “impose the least restrictive outcome that is appropriate in the circumstances, in accordance with the hierarchy of sentences and orders” set out in the Sentencing Act 2002.[3] As is invariably the case, however, an understanding of the sentence imposed and the issues arising on the appeal from it requires attention to the details of the offending and the offender.
[3]Sentencing Act, ss 8(g) and 10A.
The procedural history of the case is somewhat unusual in that Mr Lau was on trial by a jury for the offending when he pleaded guilty just as Judge Kellar was about to sum up to the jury. As a result, the Judge had a good understanding of the facts and we draw on his account in summarising them.
Between March 2013 and June 2014 Auckland Council officers visited the site over 20 times to inspect site works being managed by Mr Lau. They told him on numerous occasions to stop felling native trees at the site. A resource consent to fell some of the trees was applied for but never granted and tree felling works continued. In February 2014, Mr Lau lodged a submission on the proposed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lau v R

Details

AGLC: Lau v R [2018] NZCA 151
Case: [2018] NZCA 151
Decision Date: 16 May 2018 at 10 am

CaseChat Overview and Summary

In Lau v R, Ee Kuoh Lau appeals against a sentence of two months and two weeks' imprisonment imposed by Judge Kellar in the District Court at Auckland, following his conviction for damaging six pōhutukawa trees and one tōtara tree on a site. The trees were protected by the Operative Auckland Council District Plan and five of them were also protected by the Auckland Unitary Plan. Lau pleaded guilty just as Judge Kellar was about to sum up to the jury. Lau argued that the sentence was wrong in principle and excessive, relying on cases where sentences or penalties other than imprisonment were imposed for similar offending. Lau's counsel submitted that a sentence of community work would have been appropriate. However, the Court of Appeal found that the sentence imposed was stern but justified, and dismissed the appeal against sentence. The appellant is to surrender himself to the Registrar at the Auckland District Court (Criminal Counter, Level 1, 65–69 Albert Street) no later than 10.00 am on Friday 18 May 2018 to resume his sentence of imprisonment.

Orders