Saxton v Waikato Regional Council
[2018] NZHC 3217
•7 December 2018
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI 2018-419-0057
[2018] NZHC 3217
BETWEEN OLIVER COTHER SAXTON
Appellant
AND
WAIKATO REGIONAL COUNCIL
Respondent
Hearing: 6 December 2018 Appearances:
M J Hammond for the Appellant
J M O’Sullivan for the Respondent
Judgment:
7 December 2018
ORAL JUDGMENT OF JAGOSE J
Solicitors:
Tompkins Wake, Hamilton
Luke Cunningham Clere, Wellington
SAXTON v WAIKATO REGIONAL COUNCIL [2018] NZHC 3217 [7 December 2018]
Introduction
[1] Mr Saxton pleaded guilty to one charge of using land in a manner contravening a regional rule.1 He now appeals against the $19,800 fine consequently imposed on him in the District Court at Hamilton.2 His sole ground of appeal is the fine was manifestly excessive, in light of his $20,000 payment to the Department of Conservation (“DoC”) for mitigation planting.
Facts
[2] Mr Saxton is the director of Awaroa Lands Limited, which owns a farm on the western side of Lake Whangape, near the Tikotiko Stream and Awaroa Stream wetlands. Awaroa Lands runs a dry stock operation on the farm, with a herd of approximately 1,100 beef cattle.
[3] The lake and adjoining wetlands are identified as significant natural areas in the Waikato Regional plan, and the entire margin of Lake Whangape has been designated a Priority One Stock Exclusion Area.
[4] In 1989, Mr Saxton’s father transferred to DoC a strip of land between the farm’s northern boundary and the lake wetland area. This strip, since administered by DoC as a reserve, comprises approximately 45 hectares of land, consisting of fingers of land extending into the lake and wetland areas.
[5] On 25 August 2017, a DoC ranger visited the reserve and saw a group of approximately 30 cattle, belonging to Awaroa Limited, on the eastern side of the reserve near the Awaroa Stream. Some of the cattle were moving about on the banks of the lake. The DoC ranger then walked around the lake edge and noticed that planting near the lake had been severely damaged by stock.
[6] The offending in question relates to Mr Saxton’s unlawful use of the reserve to graze approximately 70 cattle over a period of two days. He said the stock’s breach of
1 Resource Management Act 1991 (“RMA”), s 9(2).
2 Waikato Regional Council v Saxton [2018] NZDC 19020.
a perimeter fence between the reserve and the lake edge was an unfortunate mistake. He blamed a farm worker’s inattention for that breach. He admitted the damage to the wetlands and the plantings was “not flash …”.
[7] When interviewed, Mr Saxton said it was a waste of the reserve not to use it for grazing as it was good, productive land; grazing there was too tempting; he would respect the reserve a lot more if DoC had named the reserve after his grandfather as had been agreed; and, if left ungrazed, the area would revert to blackberry and gorse, which could seriously affect his farm. If that is to characterise Mr Saxton’s approach too severely then I record also the advice of counsel for the Council, Jamie O’Sullivan, Mr Saxton can legitimately claim interest in, and contribution to, conservation.
[8] The environmental impact from the offending was difficult precisely to quantify. But the evidence showed damage to indigenous vegetation and identified stock trampling, which indicated a more than minor level of adverse ecological effects.
District Court decision
[9] Judge Harland handed down her reserved sentencing decision on 25 September 2018, after a hearing on 7 August 2018.
[10] In adopting a starting point of $30,000, the Judge assessed the gravity of Mr Saxton’s offending to be somewhere between moderate and moderately serious offending of its type. She considered the effect to the environment was likely to have been moderate, but she accepted the area is likely to be recovering. As to Mr Saxton’s culpability for the offending, she assessed it to be relatively high on the basis of the explanations he gave for the offending when he was interviewed, which were to the effect it was done deliberately for commercial gain.
[11] The Judge then provided a five per cent discount for Mr Saxton’s previous good character, and a two per cent discount for refencing the area adjoining the reserve to prevent further intrusions by cattle. The Judge also allowed a five per cent discount for the payment by Mr Saxton to DoC for mitigation planting. This mitigation planting was described in a joint memorandum between the parties as a contribution toward remediating the damage caused and further enhancing the reserve. The Judge noted,
while it was an offer of a considerable amount, it was not sufficient to cover the cost of the least expensive quote provided to the Council for recommended replanting of the reserve. Nonetheless, in settling on the figure of five per cent, she considered that reparation in the figure of $20,000 will effectively remediate the part of the reserve impacted by the offending and will likely benefit the reserve ecologically as well.
[12] The Judge noted Mr Saxton’s offer to pay $7,500 towards the prosecution’s costs, but in light of the total costs to the Council, calculated to exceed $32,000, she considered this to be a contribution at the lower end of the scale.
[13] The Judge finally allowed a 25 per cent discount for Mr Saxton’s guilty plea. This resulted in an end fine of $19,800.
Approach on appeal
[14] I must allow Mr Saxton’s appeal against sentence if I am satisfied, for any reason, there is an error in the sentence imposed on him, and a different sentence should be imposed. In any other case, I must dismiss the appeal against sentence.3
[15] The approach previously taken by courts on sentencing appeals continues to apply,4 so the measure of error is the sentence be “manifestly excessive” – a principle “well-engrained” in the Court’s approach to sentence appeals.5
[16] I will not intervene where the sentence is within a range properly justified by accepted sentencing principles. Whether a sentence is ‘manifestly excessive’ is to be assessed by reference to the ultimate sentence given, rather than the process by which it is reached.6
Submissions for the appellant
[17] Mark Hammond, Mr Saxton’s counsel, says the key issue for determination in this appeal is whether his near $40,000 payment is manifestly excessive in all the
3 Criminal Procedure Act 2011, s 250(3).
4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
5 At [33], [35].
6 Ripia v R [2011] NZCA 101 at [15].
circumstances. He points out, had Mr Saxton not made $20,000 in amends, the Judge’s reasoning pointed to a fine of $21,300, meaning Mr Saxton would have been better off by $18,500. Mr Hammond’s written submissions contend that no fine should have been ordered, as the amends payment of $20,000 and the payment towards Council’s fees of $7,500 should have sufficed. In oral submission, he moved away from that to say the issue really was my consideration of whether amends had adequately been taken into account in arriving at the Judge’s final figure.
[18] Mr Hammond says offenders such as Mr Saxton should be encouraged to make amends by way of reparation, as consistent with both the principle in s 5(2)(c) of the RMA, which – by reference to ‘sustainable management’ – encourages remedying the adverse effects of activities on the environment, and s 10 of the Sentencing Act 2002, which requires a Court to take into account, when sentencing an offender, any offer to make amends.
Discussion
[19] I do not find the RMA breach sentencing decisions cited to me by Mr Hammond to be of particular utility. Two are distinctly distinguishable on their particular restorative justice facts,7 and the third is nothing more than illustrative of the very approach taken by the Judge here.8
[20] Offers to make amends should not result in comparable reductions from the fine that would otherwise be imposed, where the statutory sentencing purposes of denunciation, deterrence and accountability are engaged.9 An assessment of the circumstances in which such a payment is offered must be made by the Court.10 Relevant to such an assessment are the following factors:11
7 Auckland Council v Andrews Housemovers Ltd [2016] NZDC 780, and Waikato Regional Council v Hamilton City Council DC Hamilton CRI-2012-019-001097, 10 December 2012.
8 Manawatu Regional Council v Affco New Zealand Ltd DC Palmerston North CRI-2013-054- 001920, 11 June 2014.
9 Department of Labour v Hanham and Philp Contractors Ltd (2008) 6 NZELR 79 (HC) at [64], Hanham has since been superseded by Stumpmaster v Worksafe New Zealand [2018] NZHC 2020, which approved the above principle at [65] – [66]; see also PF Olsen Ltd v Bay of Plenty Regional Council [2012] NZHC 2392 at [85].
10 At [64].
11 At [64].
(a)the desirability of encouraging payment by way of reparation;
(b)the need to give significant weight to denunciation, deterrence and accountability;
(c)the financial resources of the offender;
(d)the need to impose an effective penalty which will be more than a mere licence fee;
(e)the extent to which the reparation ordered will make good the harm that has occurred;
(f)the extent to which the offer of reparation demonstrates remorse on the part of the offender.
[21] Too great a discount for payments made in amends encourages environmental risk taking, and undermines the purposes of both the RMA and the Sentencing Act 2002, particularly where the offending has been deliberate. If an offender can breach its obligations under the RMA deliberately in pursuit of financial gain, as appears to be the case here, but then avoid a fine by making an offer of reparation similar to the fine to be imposed, there will be little incentive to comply with its obligations under the RMA.
[22] The Supreme Court in Osborne v Worksafe recently reinforced, although a sentencing court is obliged to consider any attempt by an offender to make amends:12
… when considering the impact of reparations on sentencing following a guilty plea or conviction, the courts discount amends which do not appear to reflect acceptance of responsibility and remorse for what has been done.
I take those to be reflections of sentencing principle.
[23] This is consistent with Brewer J’s approach in PF Olsen Ltd v Bay of Plenty Regional Council. In that case a reduction of 30 per cent was allowed on appeal, where the starting point for the two fines globally was $130,000, and the remediation work
12 Osborne v Worksafe [2017] NZSC 175, [2018] 1 NZLR 447 at [77].
undertaken was approximately $250,000. His Honour noted, while credit must be given, an offender cannot be seen to extinguish or greatly reduce its liability by spending money.13 In that appellant’s favour was the large amount of expenditure, but those costs were also well within its means.14 Ultimately, a discount of 30 per cent from the global starting point was granted, being $39,000 or roughly 15 per cent of the appellant’s remediation expenditure.
[24] It is also relevant, as Ms O’Sullivan points out, it might have been open to the Judge, in accordance with s 339(5)(a) of the RMA, additionally to make orders against Mr Saxton requiring remediation of the damaged area. His offer of amends was not particularly large – slightly less than the fine imposed, and less than the cheapest quote provided by the Council for the required remediation work. Unlike PF Olsen Ltd, where the expenditure on remediation was almost twice the starting point, here it was
$10,000 less than the starting point adopted by the Judge. Moreover, as I have noted, such remediation could have been ordered against Mr Saxton in any event.
[25] In the circumstances the payment of amends was not an entirely genuine reflection of remorse and contrition. Mr Saxton’s discount suggests the payment was motivated by desire to reduce the financial burden of his fine, rather than to make amends for the harm caused by deliberate breach of the RMA.
[26] Considering Mr Saxton’s offending involved a deliberate breach of restrictions imposed by the RMA, undertaken for personal gain and with disregard for the preservation of the reserve, the sentencing objectives of accountability, deterrence and denunciation clearly are engaged. Too large a deduction from the starting point to reflect such a payment, as Mr Saxton seeks, diminish sentencing’s purposes.
[27] Standing back, I do not consider any other sentence should have been imposed. The end sentence of $19,800 is not manifestly excessive. The Judge has allowed a deduction of approximately a third from her uncontested starting point, appropriately recognising a range of factors. Although the bulk of that was made up of the 25 per
13 At [85]; see also Osborne v Worksafe at [73] where the Supreme Court stated that “The rule of law is undermined if accountability and punishment for public wrongs turns on the means of the defendant.”
14 At [86] – [87].
cent guilty plea discount, that was generous in the circumstances. As I said, sentencing appeals are not to focus on the individual discounts, but the ultimate position. The Judge’s sentence is within range.
Result
[28]The appeal is dismissed.
0
4
0