The Queen v Gordon

[2009] NZCA 141

IN THE COURT OF APPEAL OF NEW ZEALAND

CA34/2009
[2009] NZCA 141

THE QUEEN

v

GRAHAM WILLIAM GORDON

Hearing:1 April 2009

Court:Robertson, Gendall and Keane JJ

Counsel:Appellant in person

J M Jelas for Crown

Judgment:21 April 2009 at 11 am

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Keane J)

Introduction

[1]       On 28 February 2008 Graham Gordon was convicted during trial, on his plea at the end of the Crown case, of five offences, between 23 March 2004 – 23 March 2005, against the Resource Management Act 1991.  All were committed at two properties which he owned, or in which he had an interest, 184 and 202 Shaw Road, Oratia, Waitakere.

[2]       At those properties Mr Gordon had stock piled motor vehicle bodies and parts.  He had more than one dwelling and minor household unit on each.  There were earthworks on one property and solid waste landfills on each.  His offences lay in contravening enforcement orders granted on 23 March 2004 and in acting without a resource consent under the Waitakere City District Plan.

[3]       On the date of his plea, the trial Judge, Judge Mathers, was given a sentence indication signed by Mr Gordon, by counsel for the Crown and, seemingly, by a Council officer.  The Crown undertook not to press for imprisonment if Mr Gordon entered an immediate plea, as he did, and remedied his offences.  The Council undertook to assist.  He was allowed seven months before sentence within which to make good.

[4]       On sentence, Judge Mathers said, Mr Gordon deserved to go to prison.  He had tried the patience of the Court.  He had thumbed his nose at the Council.  He had largely ignored the Resource Management Act 1991.  He had previously received a final warning for such offending.  He had elected to remedy his most recent offences only incompletely.  She nevertheless sentenced him to three months home detention, a sentence he has now served, and 270 hours community work that he has still to commence.

[5]       On this appeal against sentence, Mr Gordon does not contend that his sentence is manifestly excessive when related to the offences for which he was for sentence.  It is excessive, he contends, because the Judge failed to take into account that, in 2004, when he was sentenced to 320 hours community work for earlier such offending, that was on an incorrect footing.  In the present sentence the Judge ought to have offset that earlier sentence.

[6]       In 2004, Mr Gordon contends, as he did on sentence most recently, he was assumed to be accountable for having two illegal dwellings at 202 Shaw Road. But as the Council accepted before Judge Mathers imposed the sentence under appeal, those two dwellings were present legally.

[7]       The Crown contends, as it did on sentence, that the sentencing Judge in 2004, Judge McElrea, made no such error.  Quite apart from the two dwellings legally present at 202 Shaw Road, there were others that were illegal.  Judge Mathers, in imposing the sentence under appeal, the Crown says, made no such error either.

[8]       On this appeal Mr Gordon also raises an issue not before Judge Mathers, his state of health.  He suffers high blood pressure for which he requires medication. That precludes him, he contends, from undertaking community service.

Earlier offending

[9]       These misuses of land, resulting in Mr Gordon’s most recent convictions and sentence, are nothing new.  As early as May 1988 orders were made in the District Court, Henderson, prohibiting him from misusing 184 and 202 Shaw Road in just these ways.  The injunction extended to a third property.  Mr Gordon then held on lease 159A Scenic Drive, Titirangi, owned by his father.

[10]     Those injunctions proved ineffectual and on 18 February 1993 the Planning Tribunal issued enforcement orders, extending to all three properties, prohibiting any further misuse and requiring that all illegal dwellings and car bodies be removed. Those orders remained in force, largely uncomplied with, until November 2003, when Mr Gordon went to trial for related offences.  He was then convicted of 16 breaches of the 1993 orders, eight as to each of his two properties, and seven of undertaking activities without consent.

[11]     In sentencing Mr Gordon on 23 March 2004, Judge McElrea (the trial Judge) said that in the years since 1993 Mr Gordon had offended deliberately and persistently.  He had amassed car bodies on both properties and conducted a related business.  On both properties he had derived income from illegal accommodation.  In 2001 he had been fined for two such offences.  That had not deterred him.  He had been given four months since his trial in November 2003 to remedy his offending. There had been virtually no progress.

[12]     To Mr Gordon’s claim that he had, altruistically, employed and housed the vulnerable and the destitute, the Judge responded that, equally, he had been ‘very wilful’.  The Judge said to him ‘you … do exactly what you choose even though the law does not allow it’.  He had been unwilling to remove illegal units, moreover, the Judge said, because they were his ‘main or substantial item of income’.

[13]     Mr Gordon, the Judge concluded, was at risk of being imprisoned.  He sentenced him instead to 320 hours community work and warned him that if he were convicted of any such breach in the future he would almost certainly be sentenced to imprisonment.

[14]     The 1993 orders remained in force but the Judge made equivalent orders to give the Council a more assured means of enforcing them.  The Council elected not to rely on those powers.  When Mr Gordon failed to comply he was again prosecuted.  The outcome was his most recent trial in February 2008, his plea, and the sentence now under appeal.

Basis for appeal

[15]     Mr Gordon derives his sole ground of appeal from a concession the Council made to him in a letter dated 12 June 2008 that Judge Mathers had on sentence.

[16]     A condition of the sentence indication, dated 28 February 2008, was that Mr Gordon apply for a resource consent to make a boundary change between his property and that of his first wife at 202 Shaw Road, so that she could obtain a separate title.  Later the Council revised that.  The result would have been at least one lot size below the minimum allowed.  Instead the Council suggested lesser ways of achieving the same result and, in doing so, made this concession:

The boundary adjustment subdivision undertaken in 1993 clearly states on the approved survey plan that there are two existing dwellings located within one lot. Council therefore accepts that it is possible to retain these two dwellings within the one lot.

[17]     On sentence Mr Gordon, relying on this concession, submitted that in 2004 Judge McElrea had sentenced him assuming, incorrectly, that those two dwellings were illegally together at 202 Shaw Road.  He invited Judge Mathers to offset that earlier sentence against the sentence she was about to impose. She did not do so.

Conclusions

[18]     Judge Mathers was right not to offset that earlier sentence.  Quite apart from the fact that it was a sentence imposed for a large number of offences, only some of which concerned illegal dwellings at 202 Shaw Road, the Crown’s submission provided a complete answer.

[19]     In 2004, the evidence showed conclusively, as Judge McElrea then said, that there were more dwellings at 202 Shaw Road than the two that were there legally.  He made no error in the sentence that he imposed.  Nor did Judge Mathers make any error.  She was explicit that she did not take the two dwellings legally at 202 Shaw Road into account.

Result

[20]     The appeal will be dismissed.  Mr Gordon will now have to complete the sentence of community work.  His state of health is not a basis for setting aside a sentence that is otherwise proper.  His health will no doubt be taken into account in assigning him work that he is able to complete.

Solicitors:
Crown Law Office, Wellington