Liu v Auckland City
[2018] NZHC 1238
•30 May 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2017-404-444
[2018] NZHC 1238
BETWEEN DONGHUA LIU, RONCON PACIFIC HOTEL MANAGEMENT LTD, KELLY RONALD PARSONS
Appellants
AND
AUCKLAND CITY
Respondent
Hearing: 12 & 13 Februry 2018 Counsel:
F Pilditch for Appellants B Watts for Respondent
Judgment:
30 May 2018
JUDGMENT OF DUFFY J
This judgment was delivered by me on 30 May 2018 at 3.30 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Solicitors/Counsel:
Carter Atmore Law, Auckland Meredith Connell, Auckland Fletcher Pilditch, Auckland
LIU, RONCON PACIFIC & PARSONS v AUCKLAND CITY [2018] NZHC 1238 [30 May 2018]
[1] The three appellants in this case are Mr Liu, Mr Parsons and Roncon Pacific Hotel Management Ltd (Roncon). On 25 May 2017 they were convicted by Judge Kirkpatrick in the District Court under ss 9(3) and 338(1)(a) of the Resource Management Act 1991 (RMA).1 Specifically, they were found guilty of excavating holes into a basalt stone retaining wall without a resource consent in contravention of Activity Table 1 of Chapter J, Part 3 of the proposed Auckland Unitary Plan (PAUP).
Sentencing took place on 25 October 2017.2
[2] All three appellants appeal their convictions. Messrs Liu and Parsons also appeal Judge Kirkpatrick’s refusal to grant discharge without conviction.
Factual background
[3]The following facts are accepted by both parties.
[4] In March 2015, Roncon owned the property located at 76 Gillies Avenue in Newmarket, Auckland. This title had been created by a subdivision in 2002 from a larger parcel of land comprising what is now 74 and 76 Gillies Avenue.
[5] Mr Liu is one of two directors of Roncon. Mr Parsons is an independent contractor engaged by Roncon to undertake development works at 76 Gillies Avenue.
[6] Alfred Kidd House, a building of historical significance, is located at 74 Gillies Avenue. Part of Alfred Kidd House also lies within 76 Gillies Avenue. That part relates to sections of a basalt stone retaining wall (the stone wall). That is because when the larger parcel of land was subdivided, part of the boundary between 74 and 76 Gillies Avenue was drawn along this wall. 74 and part of 76 Gillies Avenue comprise a Category B historic heritage place listed in the schedule in Appendix 9 of the PAUP, which was operative at the time.
[7] As a condition of the subdivision in 2002, a restrictive covenant was executed under s 108 of the RMA and attached to the title of 76 Gillies Avenue. This covenant prohibited the disturbance or alteration of the “stone wall or steps”.
1 Auckland Council v Liu [2017] NZDC 10864.
2 Auckland Council v Liu [2017] NZDC 22882.
[8] Between 9 and 13 March 2015, Mr Parsons commenced preparation to construct a fence along the boundary between 74 and 76 Gillies Avenue. This was at Mr Liu’s request. As part of the preparation, several large holes were excavated from the stone wall. Some damage was also done to the staircase which made up part of the wall (the steps). No resource consent had been obtained for this activity.
[9] On 19 March 2015, an abatement notice was issued by the Council citing various breaches of rules under the PAUP. Work on the construction of the fence was stopped and the appellants went about replacing the stones they had excavated from the wall and repairing the steps.
[10] I shall deal with the appeal against conviction first and then with the appeal against the refusal to grant discharge without conviction separately.
PAUP – relevant sections
[11] The issue of conviction hinges on the correct interpretation of the PAUP. The following sections are relevant to the case.
[12]The following will be referred to as the heritage rule:3
The following tables specify the activity status of activities in the Historic Heritage overlay. Where there is a conflict between the activity table in the underlying zone and the activity table within the scheduled historic heritage place overlay, the activity table in the latter takes precedence.
[13] In the significant historic heritage place overlay table “modifications to buildings or structures or the fabric or features of a [Category B] place” are classed as a discretionary activity, meaning that resource consent is required.
[14]The PAUP defines “modifications” as:4
Any work that physically affects the fabric of a scheduled historic heritage place, including any features of that place.
3 Proposed Auckland Unitary Plan 30 September 2013, Part 3, Chapter J2 Historic Heritage – Activity Tables J2.1.
4 Part 4, Definitions.
Includes:
· additions and alterations to buildings Excludes:
·demolition, substantial demolition, or partial demolition of a feature within a scheduled historic heritage place
·destruction of a feature within a scheduled historic heritage place
·dismantling of a feature within a scheduled historic heritage place
[15]The following will be referred to as the fencing rule:5
The following tables specifies (sic) the activity status for earthworks. For sites with one or more overlays then the more stringent activity status apply (sic). Refer to other provisions in the Unitary Plan for the activity status of the related land use activity.
[16] In the Overlays table “installation of fences, walking tracks and burial of marine mammals” is classed as a permitted activity, meaning that no resource consent is required.6
[17]The PAUP defines “earthworks” as:7
Disturbance of soil, earth or substrate land surfaces.
Includes:
·blading
·boring
·contouring
·cultivation
·cutting
·drilling
·excavation
·filling
5 Part 3, Chapter H4 Natural Resources – Earthworks H4.2, Activity table H4.2.1.
6 Overlays H4.2.1.2.
7 Part 4, Definitions.
·ripping
·moving
·placing
·removing
·replacing
·thrusting
[18]The following will be referred to as the general rule:8
1.General Rule
a.The most restrictive activity status determines the overall activity status of the proposal
2. Determining activity status where same matter is controlled by more than one rule:
a.To determine the activity status of a proposal:
i.the user must firstly review the activity status of the activity and its associated controls within the zone and any precinct, or Auckland-wide provisions applying to the site. The activity status within a precinct takes precedence over the same activity within a zone or an Auckland-wide provision, whether more restrictive or enabling.
ii.taking the activity status resulting from clause i above, the user must then review any overlays that apply to the site. If an overlay rule applies to the same matter then the most restrictive activity status will apply.
8 Part 3, Chapter G2 General rules and special information requirements – Determining activity status G2.2.1.
District Court decision - conviction
[19] Judge Kirkpatrick identified the principle issue as whether the defendants’ use of land contravened any district rule. It was accepted that:
(a)The defendants had used the land; and
(b)The district rules in effect at the time of the use of the land were those contained within the PAUP.
[20] The Judge further identified that the offences alleged were in the nature of strict liability, in accordance with s 341 of the RMA. He therefore concluded that the issue of the defendants’ intention in excavating holes from the stone wall was not material.
[21] In convicting the defendants, Judge Kirkpatrick found that the work done in furtherance of constructing the fence involved modifications to a scheduled historic heritage place in that it physically affected its structure, fabric or features. The defendants’ activity was therefore a discretionary activity under the heritage rule and required resource consent.
[22] In reaching this conclusion, the Judge found that the heritage rule took precedence over the fencing rule. This result was said to be consistent with the fundamental proposition in district planning that the more restrictive provision should apply if there is an apparent conflict.
[23] Judge Kirkpatrick conceded that it was “unhelpful” to the defendants that a boundary ran along the wall and noted their efforts to reinstate the wall and steps. However, this was held to be irrelevant with regards to the commission of the offence.
Grounds of appeal - conviction
[24] The appellants appeal their convictions on the basis that the Judge made legal errors in applying the planning rules under which the charges had been laid. Alternatively, it is submitted that the actions of the appellant did not amount to conduct which breached the planning rules.
Appellant’s submissions - conviction
[25]The appellant has three main submissions:
(a)The heritage rule should not be given primacy over the fencing rule;
(b)The heritage rule and the fencing rule are able to be read together; and
(c)Even if the heritage rule and the fencing rule conflict and the heritage rule is given primacy, the actions of the appellants did not amount to “modification” under that rule.
[26] The appellant submits that Judge Kirkpatrick erred when he cited Rule 3J.2.1.1.9 He was in fact citing Rule 3H.4.2. To this extent, it seems to be submitted that the Judge confused the rules of the PAUP.
[27] In terms of the proper interpretation of the planning rules, the appellant submits the following:
(a)Under the fencing rule, the application of “the more stringent activity status” in situations where there is more than one overlay should be read as referring solely to situations involving one or more earthworks overlays. The heritage rule is not an earthworks overlay.
(b)Under the heritage rule, primacy should only be given to historic heritage overlays when they conflict with underlying zones. This does not give precedence to historic heritage overlays over other overlays such as earthworks overlays.
(c)The general rule must be read in the context of the methodology set out in paragraphs 2.a.i and 2.a.ii. This contemplates a more restrictive overlay taking precedence over a zone, precinct or Auckland-wide
9 At [59].
provision. It does not provide guidance as to the how to determine primacy in the case of two conflicting overlays.
[28] The appellants draw attention to various parts of the PAUP in support of the submission that the fencing rule should be classified as an overlay as opposed to a general rule. Linked to this submission is the argument that the PAUP does contemplate the possibility of overlays having an enabling, as opposed to a restrictive effect.
[29] The appellants’ second point of appeal is that the heritage rule and the fencing rule can be read together. This submission is based on the assumption that the drafters of the PAUP must have intended that the rules be read in a complimentary way. A purposive interpretation of PAUP should unify the two suites of rules, as opposed to placing one above the other.
[30] Specifically, such an approach would mean that the more specific fencing rule was intended to be a carve-out from the heritage rule. Reading it as subservient to the heritage rule could result in the following logical absurdities:
(a)Gardening and planting is another earthworks activity which would amount to modification under the broad definition of this word in the heritage rule insofar as it has the potential to affect the fabric of a scheduled place. It would be burdensome to require resource consent for gardening and planting.
(b)The heritage designation overlay at 74 and 76 Gillies Avenue applies to the entire site. The construction of a fence anywhere on the property would also physically affect the fabric of the place, thereby triggering the heritage rule and requiring resource consent. This conclusion would contradict the comments of Judge Kirkpatrick that the building of the fence was a permitted activity “until the point where [it] interfered with the wall and steps as structures within the extent of that place”.10
10 At [69].
[31] It is submitted that the seeming conflict in this case arises not from a logical interpretation of the rules within PAUP, but from the fact that the boundary lies on the stone wall. This is submitted to be most unusual. Boundaries do not normally lie along protected heritage features. Accordingly, the above interpretation of the heritage and fencing rules would have no adverse consequences for heritage areas under normal circumstances.
[32] Finally, the appellants submit that the term ”modification” should be more tightly defined. It is pointed out that in the activity table for significant historic heritage place overlays, the term modification lies alongside many other terms, all of which contemplate enduring change.
[33] The appellants submit that modification should therefore be regarded as entailing a similar notion of permanence. Regard is had to the regional policy statement which looks to “avoid significant adverse effects to significant historic heritage places” such as loss, destruction, demolition, substantial reduction and inappropriate modifications.11 These are also said to convey an idea of permanence.
[34] The appellants argue that the excavations into the wall did not result in permanent modification, since they were able to rectify the displaced stones and restore the wall to its “former glory”.
[35] In conclusion, the appellants remind the Court of the desirability of constructing statutes purposively and suggest that there is insufficient drafting intention to support a criminal charge. If the drafters had intended the heritage rule to supersede the fencing rule, they should have made this clearer.
Respondent’s submissions – conviction
[36]The respondents has three main submissions. They are:
11 Part 1, Chapter B4 Protecting our historic heritage, special character and natural heritage – Historic Heritage B4.1.
(a)The excavations into the stone wall are not covered by the fencing rule as they do not involve earthworks in the strict sense of that word; and in the alternative;
(b)The appellants’ arguments that the excavations did not constitute a modification of the historic heritage place have a number of logical flaws; and
(c)The heritage rule should take primacy over the fencing rule.
[37] The respondent submits that the fencing rule should not apply to the excavations into the stone wall, as they did not involve “earthworks”. Counsel points to the fact that earthworks are defined in the PAUP as “disturbance of soil, earth or substrate land surfaces”. It is submitted that a wall is none of these things, but rather is a structure. Therefore the appellants cannot invoke the fencing rule in order to argue that the excavations were a permitted activity.
[38] In the alternative, the respondent submits that the appellants nevertheless modified the wall and therefore were in breach of the heritage rule.
[39] The respondent refutes the appellants’ submission that actions taken under the fencing rule must have been intended as a carve-out from the definition of modification under the heritage rule. Although the respondent accepts that the presence of the boundary line along a historic heritage feature is unusual, it does not agree that this should constitute an exception to the rule. The respondent points out that unusual situations should be decided having regard to the rules, not the other way around.
[40] Furthermore, the respondent submits that if the construction of a fence along a boundary constitutes an exception to the definition of modification, everything else contemplated under the fencing rule must follow suit. This would include the construction of a fence through the middle of a property, as well as the earthworks related to installation of walking tracks and the burial of marine mammals. The respondent argues that the drafters of the PAUP cannot have intended all of these
activities to be exempt from the heritage rule given the potential damage they could do to historic heritage structures.
[41] In response to the appellant’s submission that the definition of modification should be confined to acts resulting in permanent change, the respondent points out that historical heritage structures have an intangible as well as a physical value. A temporary physical change (which does not amount to modification under the appellants’ definition of that word) may do irreversible damage to the intangible value of a feature or structure.
[42] The reading of “modification” in the way submitted by the appellants, therefore, does not effectively protect historical values.
[43] Finally, the respondent submits that the heritage rule should be given primacy over the fencing rule.
[44] Regard is had to the preamble of the fencing rule, which contemplates the possibility of sites having more than one overlay. This is said to show:
(a)That the drafters did not preclude the possibility of internal conflict within the PAUP; indeed, this was how it was designed to operate; and
(b)That the drafters envisaged that the fencing rule would yield to more restrictive overlays elsewhere in the PAUP, including the heritage rule.
[45] The respondent substantiates this point by reference to the general rule and the generally accepted principle of planning law that the more restrictive rule should apply in cases of conflict.
[46] In response to the appellants’ submission that PAUP contemplates the application of enabling overlay rules, the respondent points out that in each case referenced by the appellants, the overlay rules in question are only enabling relative to non-overlay rules such as zone, precinct or Auckland-wide provisions. In the case of two conflicting overlay rules, the respondent maintains that the general principle should be followed and the more restrictive overlay rule be applied.
Approach on appeal - conviction
[47] Section 229 of the Criminal Procedure Act 2011 sets out a person’s right to appeal against conviction. Under s 230 of that Act, this is a first appeal from a Judge- alone trial.
[48] Under s 232, the High Court can only allow an appeal from a Judge-alone trial if it is satisfied that the District Court Judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason”:
232 First appeal court to determine appeal
(1)A first appeal court must determine a first appeal under this subpart in accordance with this section.
(2)The first appeal court must allow a first appeal under this subpart if satisfied that,—
(a)in the case of a jury trial, having regard to the evidence, the jury's verdict was unreasonable; or
(b)in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(c)in any case, a miscarriage of justice has occurred for any reason.
(3)The first appeal court must dismiss a first appeal under this subpart in any other case.
(4)In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a)has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.
(5)In subsection (4), trial includes a proceeding in which the appellant pleaded guilty.
[49] As s 232 makes clear, not every “error or irregularity” causes a miscarriage of justice.12 The error or irregularity must lead to either of the consequences listed in s 232(4)(a) or (b). The Court of Appeal recently confirmed that s 232 did not change the approach to appeals against conviction. The tests that applied prior to the enactment of the Criminal Procedure Act continue to apply.13
[50] A “real risk” that the outcome was affected exists when “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.14 This standard means that “an appellant does not have to establish a miscarriage in the sense that the verdict actually is unsafe” but that there is a real possibility the verdict would be unsafe.15
Discussion
[51] I accept the appellant’s submission that Judge Kirkpatrick erred insofar as he cited the preamble to the fencing rule when discussing the heritage rule. However, I do not think much depends on that.
[52] I also accept that the fencing rule should be considered an overlay. Despite it being listed in the PAUP under Chapter H (which deals with Auckland-wide rules), the preamble of that chapter makes it clear that it also contains overlays. In addition, the table in which the fencing rule is located is titled ”Overlays”.
[53] The appellants have sought to persuade me that here the fencing rule is engaged, and that it supervenes the heritage rule. I do not accept those arguments.
[54] First, in my view the fencing rule has no application at all. This is because I do not consider that the character of the offending interference qualifies for consideration under the fencing rule.
12 “A miscarriage is more than an inconsequential or immaterial mistake or irregularity”: Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30].
13 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [56].
14 R v Sungsuwan [2005] NZSC 57 [2006] 1 NZLR 730 at [110].
15 At [110].
[55] The fencing rule permits earthworks for installation, operation, maintenance and repair of fences.16 The damage occasioned to the stone wall is not in my view earthworks for any of those aforementioned purposes. Earthworks are described in the PAUP as the disturbance of soil, earth or substrate land surfaces including excavation. Because the wall was made of stone the appellants have sought to argue that their interference amounted to an excavation of a material that is generally associated with soil, earth or substrate land surfaces.
[56] I accept that movement of rocks that occur naturally in the soil or substrate land surfaces would, if excavated, fall within the definition of earthworks. However, the stone wall is entirely different. It is a man-made assemblage of rock shaped into the form of a wall. As such I consider the composite character of this creation to be a structure.17 There is nothing under the definition of “earthworks” or elsewhere in the fencing rule that would permit interference with a man-made structure. Accordingly, I do not consider the fencing rule applies at all.
[57] I note that “modifications” in the heritage rules include “any work that physically affects the fabric of a scheduled historic heritage place including any features of that place”. Accordingly, I consider that Judge Kirkpatrick correctly concluded that the offending interference amounted to the modification of a structure. Here the stone wall is a feature of this historic heritage place. The interference the appellants caused to the wall has affected its fabric, which necessarily means that the appellants’ actions have modified this structure. Under the PAUP modification of a structure on this historic heritage zone was discretionary and therefore resource consent was required. The interference in this case happened without resource consent, thus the offence was committed.
16 Items other than fences are also included but these are not relevant here.
17 The proposed Auckland Unitary Plan did not define “structure”. However, s 2 of the Resource Management Act 1991 relevantly defines “structure”, as meaning “any building, equipment, device, or other facility made by people and which is fixed to land; and includes any raft.” The wall can be recognised to be either a building or other facility which was made by people and which was fixed to the land, in that once placed on the land in its entirety it was immoveable. In addition, the Oxford English Dictionary (online ed, Oxford University Press 2018) defines a structure as “any framework or fabric of assembled material parts; a (typically large) man-made construction.” I also consider the wall satisfies this definition.
[58] Secondly, if I am wrong and the fencing rule does apply, I consider that here it is overtaken by the more restrictive heritage rule. Accordingly, Judge Kirkpatrick was correct to place the heritage rule above the fencing rule.
[59] There are several aspects of the PAUP which support the proposition that, in general, the more restrictive overlay should be applied over the more enabling overlay. They are these:
(a)A more restrictive earthworks overlay will be applied over a less restrictive one;
(b)If there is a conflict between any number of overlay rules and a zone, precinct, or Auckland-wide rule, the most restrictive activity status will apply; and
(c)Overlay rules are generally regarded to be more restrictive than other rules.
[60] There is a general thrust in the PAUP that the more restrictive rule should apply in the face of a conflict. As the respondent pointed out, this is in line with the general principles of planning law.18
[61] The crux of the appellants’ submissions on this topic seems to be: that nowhere in the PAUP does it explicitly say that in the case of two conflicting overlays, the more restrictive one should apply; and that conflicting overlays should therefore be treated on a level pegging. However, Judge Kirkpatrick could not apply both rules. Nor could he apply neither rule. In preferring to apply the more restrictive rule over the less restrictive rule, I do not consider that he made an error in law that resulted in a miscarriage of justice. I think that the Judge’s decision to apply the heritage rule followed a purposive approach to statutory interpretation that was in line with the general thrust of the PAUP and that area of law.
18 See, for example, Urban Auckland v Ports of Auckland [2015] NZHC 1382, (2015) 18 ELRNZ 792.
[62] Accordingly, I am satisfied that the appeal against conviction should be dismissed.
District Court decision - sentence
[63] Judge Kirkpatrick refused to accept the defendants’ submission that the gravity of their offending should be assessed against the whole range of offending. He expressed concerns that doing so would be contrary to sentencing principles by making any offence under the RMA seem less grave by comparison.
[64] The Judge assessed the gravity of the offending by reference to the statute that created it rather than to other statues. Taking this approach, he found the offending to be of moderate gravity, referring to the wider social and cultural effects that can be caused by the destruction of protected heritage items.
[65] In relation to the remediation work done by the appellants, the Judge commented that it went some way to addressing the loss to the intangible element of the wall, but did not remedy it entirely. I agree with that view. A restored wall is different from an original heritage wall.
[66] When discussing the consequences of conviction for the appellants, Judge Kirkpatrick noted that there would be somewhat of a “sting” and also a stigma in the eyes of the community. However, the Judge went on to say that this was inherent in the principles set out in the Sentencing Act 2002, namely accountability, denunciation and deterrence.
[67] In relation to the travel difficulties faced by the appellants on account of their convictions, the Judge was unmoved. He noted that some countries require disclosure of charges as opposed to convictions, and questioned whether a conviction under the RMA could be said to involve a degree of “moral turpitude”, which he saw to be the critical factor when crossing into the United States.
Grounds of appeal - sentence
[68] The appellants appeal Judge Kirkpatrick’s decision not to grant discharge without conviction on the basis that he erred in law when assessing the gravity of their offending. They also appeal on the basis that he failed to consider matters which were relevant to that assessment.
Appellants’ submissions - sentence
[69] The appellants’ main submissions with respect to the Judge’s refusal to grant discharge without conviction are that:
(a)The Judge erred in assessing the gravity of the offending in relation to other RMA offending as opposed to in relation to all offending;
(b)The Judge failed to consider the appellants’ efforts in repairing the stone wall and the position of the boundary along the wall when assessing the gravity of the offending; and
(c)In proportion to the low seriousness of the offending, the consequences of conviction for each appellant are severe.
[70] The appellants submit that the operative provisions in the exercise of a discretion to grant discharge without conviction relate to all types of offending.19 There is a need, therefore, to assess the gravity of the current offending in the context of all types of offending.
[71] The appellants submit that the gravity of the regulatory offending in general is low. They point to the lack of moral turpitude, the relatively low maximum penalties and sentence start-points, and the fact that it is often categorised as a strict liability offence.
19 Sentencing Act 2002, ss 106 and 107.
[72] The appellants also draw attention to the comments of the Court of Appeal in Underwood v R.20 It is submitted that the approach taken by the Court in assessing the seriousness of an offence under s 30 of the Evidence Act 2006 could shed light on the assessment of the gravity of the current offending.
[73] Specifically, it is submitted that the penalty of an offence may not always be the most accurate guide as to its seriousness. Regard should also be had to the following factors: the scale or extent of the offending, threats to public safety, perniciousness, actual and potential harm to victims and the use of violence.
[74] The appellants further submit that the $10,000 sentence starting point imposed by Judge Kirkpatrick amounts to 3% of the maximum financial penalty available under the RMA. His assessment that the appellants’ offending was “moderate” or “mid- range” is therefore brought into question.
[75] Second, the appellants submit that Judge Kirkpatrick failed to give credit for the cost incurred in their efforts to repair the wall. This was undertaken voluntarily and should have formed part of the assessment of the appellants’ overall culpability.
[76]$45,566.11 was spent by the appellants in addressing the Council’s concerns.
$5,384.50 of this was paid to the Council for a resource consent which, the appellants claim, was not even required. Despite believing they were legally entitled to excavate into the wall as they did, the appellants immediately ceased when the Council’s concerns became known and began repairing the wall.
[77] The appellants also submit that although Judge Kirkpatrick acknowledged that the location of the boundary between 74 and 76 Gillies Avenue “contributed most unhelpfully to the circumstances”, this did not factor into his ultimate assessment of the gravity of the offending.
[78] In addition, the appellants submit that the Judge should have considered the following:
20 Underwood v R [2016] NZCA 312, [2017] 2 NZLR 433.
(a)Mr Liu does not speak English well, and he received advice from several sources including a surveyor that it was okay to erect the fence;
(b)The stone wall is located at the back of 74 Gillies Avenue and is obscured by vegetation, limiting its historic value with respect to the general public; and
(c)Roncon has since purchased 74 Gillies Avenue.
[79] Finally, it is submitted that although no charge was filed for the damage done by the appellants to the stone staircase, Judge Kirkpatrick nevertheless seemed to hold to the appellants accountable for that along with the excavations into the wall.
[80] Having regard to what the appellants term the relatively low seriousness of the offending, it is submitted that the consequences brought by a criminal conviction for each appellant would be out of proportion.
[81] The appellants submit that a criminal conviction would have the following consequences for Mr Liu:
(a)The attendant obligation to explain the nature of the convictions, and
(b)The recommencement of the seven-year waiting period under the Criminal Records (Clean Slate) Act 2004, resulting in a delay in the resumption of Mr Liu’s Asia-Pacific Economic Cooperation forum (APEC) membership and his ability to hold a Business Travellers Card with them; this in turn would oblige him to obtain a visa when travelling to China, which he does frequently for work.
[82]With respect to Mr Parsons, the consequences are said to be as follows:
(a)The need to disclose and explain the convictions might problematise his ability to travel to the United States, something which he must do on a semi-regular basis on account of his wife being American; and
(b)The undermining of his reputation as a builder and the likely effects this will have on his career.
[83] Overall, the appellants submit that the severity of the above consequences would be out of all proportion to the gravity of the offending which was relatively low.
Respondent’s submissions - sentence
[84] The respondent submits that Judge Kirkpatrick was correct in his assessment of the current offending as “moderate”.
[85] It is submitted that the fact that a fine was imposed does not necessarily mean that the gravity of the offending was low. Rather, a fine is generally regarded as an appropriate response to breaches of the RMA due to the offsetting of the financial gain usually associated with such breaches.
[86] Similarly, the respondent submits that assessing the gravity of the offending by calculating the fine as a percentage of the maximum penalty is reductive. This submission is based on the argument that fines imposed for breaches of the RMA tend to be clustered around the lower end of the spectrum.
[87] Overall, the respondent expresses concern that if the appellants’ argument is taken to its logical conclusion, breaches of the RMA would rarely result in a conviction. This would compromise the integrity of local government by making it difficult to enforce planning rules.
[88] Attention is drawn to the following factors which are said to increase the gravity of the offending:
(a)The appellants’ efforts to repair the wall, while worthy of some credit, could not address the damage done to its historical value which to a certain extent is irreparable;
(b)The value of the wall is intrinsic; the fact that the public cannot see it, therefore, does not mitigate the offending;
(c)The restrictive covenant on the Certificate of Title refers to not disturbing the stone wall or steps; the appellants’ failure to verify whether there were restrictions on their ability to carry out works on the land shows a distinct lack of care; and
(d)Mr Liu was expressly warned by the District Court in 2014 of the need to personally understand and comply with the rules of property development;21 he therefore cannot use the fact that he has limited English and is forced to rely upon the advice of others to mitigate his offending in this case.
[89] In terms of the consequences of conviction for Mr Liu, the respondent points out that he is already ineligible for an APEC business travel card. This is due to an earlier conviction. The current conviction merely extends his period of ineligibility by a further three years.
[90] The respondent submits that the result is an inconvenience for Mr Liu not at all out of proportion with the gravity of his offending. Mr Liu will still be able to travel to and from China for business purposes. He will simply need to apply for an entry visa, which appears to require a small fee and four working days’ processing.
[91] In the case of Mr Parsons, the respondent questions what effect an RMA conviction would have upon his ability to travel to the United States. The respondent refers the Court to a number of authorities concerning requests to grant discharge without conviction on the basis that a conviction would prevent the applicant from travelling.22 Put plainly, it seems that such an application will only succeed where there is firm evidence that the applicant will travel to a country where he or she, but for the conviction, would be admitted. Speculative or tentative travel plans are considered to have little weight in such an assessment, as well as cases where the conviction may impede but not altogether prevent entry.
21 Auckland Council v Liu DC Auckland CRI-2014-004-5460, 2 October 2014.
22 Edwards v R [2015] NZCA 583; Brunton v Police [2012] NZHC 1197.
[92]The respondent points out that:
(a)Mr Parsons does not know specifically what effect an RMA conviction would have on his ability to travel to the United States;
(b)He already appears able to travel to the United States despite having a drink-driving conviction; and
(c)His plans to travel to and live in the United States are merely speculative at this stage.
[93] The respondent also contests whether a conviction would have a significant adverse effect on Mr Parson’s career as a builder. It is submitted that there is no obligation on him to disclose his conviction to potential customers or that they would refuse his services if they did learn of his conviction.
Approach on appeal - sentence
[94] An appeal against a refusal of discharge is by way of rehearing. The Court hearing the appeal makes a new assessment in accordance with its own opinion.23 The Court of Appeal in R v Hughes concluded that as the s 107 test is not discretionary, an appeal against the Court’s decision on this matter is not an appeal against discretion.24 A discharge without conviction is available under s 106 of the Sentencing Act. Section 107 guides the application of s 106 and provides:
107 Guidance for discharge without conviction
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
For the Court to be satisfied, there only needs to be a “real and appreciable” risk that the contended consequences will occur.25
23 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11].
24 At [11].
25 Papuni v Police [2013] NZHC 1958 at [12]
[95] The approach to be followed in applying the s 107 test is set out in Z v R where Arnold J held:26
[27] ...[w]hen considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender; the court should then identify the direct and indirect consequences of conviction for the offender and consider whether those consequences are out of all proportion to the gravity of the offence; if the court determines that they are out of all proportion, it must still consider whether it should exercise its residual discretion to grant a discharge...
[96]This approach was subsequently approved in DC v R.27
[97] This is a factual inquiry which requires the Court to consider all relevant circumstances of the offence, offending and the offender, as well as the wider interests of the community.28
[98] If the s 107 test is met, then the Court has a discretion to discharge without conviction as per s 106. In determining whether to exercise that discretion the Court should take into account the factors listed in ss 7, 8, 9, 9A and 10 of the Sentencing Act 2002.29
Discussion
[99] I am satisfied this was moderately serious offending. The level of fine imposed does not serve to reduce the seriousness of this offending. The fine reflects the end sentence reached by the Judge after taking into account mitigating factors. Those factors whilst relevant to the end sentence cannot detract from the seriousness of the offending.
[100] Parliament has chosen to protect heritage sites from interference by imposing criminal liability on such interference. Despite the wall being located at the back of the site it is part of an area that enjoys heritage protection, which is to be respected by those with the means to interfere with this property.
26 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142.
27 DC (CA47/2013) v R [2013] NZCA 255, [2013] NZAR 142 at [35].
28 R v Hughes at [41].
29 Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [12].
[101] Furthermore, the explanation that the interference was unintentional is not influential here. The offence is one of strict liability. Parliament has chosen to impose criminal liability for this type of offending when the conduct concerned has not been intentional. It follows that occasionally when such offences are committed they will be unintentional. Moreover, here Mr Liu was on notice because the wall’s protected status was covered by the restrictive covenant registered on the certificate of title of the subject land.
[102] The consequences of conviction that Mr Liu and Mr Parsons have outlined seem to me to be no more than the consequences that are typically attendant on conviction. There is nothing about the severity of those consequences that appears to me to be out of all proportion to the gravity of their offending.
[103] In terms of the travel inconvenience a conviction will create, they each face this already, as each has a past criminal conviction.
[104] In terms of the adverse effect of the present conviction on Mr Liu’s ability to hold and use a business travel card issued by APEC he is already similarly affected by the convictions he received in 2014. All the present conviction will do is to extend the length of this disability. The present existence of this disability should have made him more alert to the consequences if he acquired a further criminal conviction, and therefore made him more alert to the need to avoid an additional conviction.
[105] Regarding the impact of an RMA conviction on Mr Parsons’ business I accept the respondent’s submission that the presence of the conviction is not something he is required to disclose to prospective clients. Certainly, he has not identified any legal requirement for him to make such disclosure.
[106] I have carefully considered the submissions advanced by Mr Liu and Mr Parsons. Nothing that either has said persuades me that they should be discharged without conviction.
Result
[107]The appeal against conviction is dismissed.
[108]The appeal against the refusal to discharge without conviction is dismissed.
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