The Queen v William Victor George Conway Cash for Scrap Ltd Millennium Investments Ltd

[2004] NZCA 447

IN THE COURT OF APPEAL OF NEW ZEALAND

CA234/04

THE QUEEN

v

WILLIAM VICTOR GEORGE CONWAY CASH FOR SCRAP LTD

MILLENNIUM INVESTMENTS LTD

Hearing:         28 October 2004 Coram:  William Young J

Randerson J Heath J

Appearances: P J Kaye for Appellant

H D M Lawry and C S Knight for Crown Judgment:   28 October 2004

Reasons:         8 November 2004

REASONS FOR JUDGMENT OF THE COURT DELIVERED BY HEATH J

Introduction

[1]    Mr Conway, Cash for Scrap Ltd and Millennium Investments Ltd were each charged indictably with offences under the Resource Management Act 1991 (the Act). All three were committed for trial in the District Court at Auckland after a preliminary hearing.

R V CONWAY & ORS CA CA234/04 [28 October 2004]

[2]    The trial  was  due  to  commence  on  17  November  2003.  On  that  day  Mr Conway and Cash for Scrap each pleaded guilty to nine counts in the indictment; Millennium Investments pleaded guilty to eight counts.

[3]Mr Conway and Cash for Scrap each pleaded guilty to:

a)three charges of discharging of contaminants onto land in circumstances that may have resulted in the contaminant entering water;

b)two charges of failing to comply with abatement notices issued by the Auckland Regional Council (the Council); and

c)four charges of contravening specific terms of enforcement orders made by the Environment Court.

[4]Millennium Investments pleaded guilty to:

a)three charges of permitting the discharge of contaminants onto land in circumstances that may have resulted in the contaminant entering water;

b)one charge of failing to comply with an abatement notice; and

c)four charges of contravening enforcement orders made by the Environment Court.

[5]    The offending occurred between 1 May 2001 and 18 June 2003 at premises situated in Bairds Road, Otara.

[6]    On 27 May 2004, Judge J P Doogue sentenced Mr Conway to three months imprisonment. Cash for Scrap was fined $25,000. Millennium Investments was  fined $15,000. Under s 342 of the Act the Judge ordered that 90% of the fines be paid to the Council.

[7]    All  three  appealed  against  the  sentences  imposed  on  grounds  of manifest excess. Mr Conway was granted bail pending appeal.

[8]    We heard the appeals on 28 October 2004. After hearing from counsel, we dismissed the appeals and stated we would give our reasons for so doing later.

[9]These are our reasons for dismissing the appeals.

The facts

[10]   There was little dispute with the facts as stated by Judge Doogue in his sentencing judgment. The following summary of facts is taken largely from that judgment. We gratefully acknowledge the assistance provided to us by the clear and careful judgment under appeal.

[11]   Cash for Scrap carries on business from premises situated at 11 Bairds Road, Otara. The land is owned by Millennium Investments. Mr Conway manages the business of both Cash for Scrap and Millennium Investments.

[12]   Over the years, the Bairds Road property has been used to store and dispose of demolition materials. During the period covered by the indictment, motor  vehicles were accepted onto the land for wrecking and recycling. Although it was necessary to obtain a resource consent to operate a scrap yard, no resource consent had been obtained from the Manukau City Council.

[13]   The Judge found that the business was operated in a manner harmful to the environment. Cars had their sumps, oil filters, transmission and fuel tanks punctured and were tipped on their sides so that fluids would drain onto the ground. Even allowing for some evaporation, substantial amounts of chemicals and minerals soaked into the ground.

[14]   As the property was close to a creek which discharged into the Tamaki River, not only was the ground water in the area below the premises likely to be affected by this harmful conduct, but also contaminants were likely to find their way into a

tributary of the Tamaki Estuary. No resource consent, for discharge of contaminants into waterways, caused through the business activities, had been sought or obtained.

[15]   Although the charges of unlawful discharge of contaminants cover the period between 1 May 2001 and 18 June 2003, one particular discharge of significance occurred on 13 July 2001. On that day Mr Conway instructed an employee to puncture fourteen 200 litre drums containing oil and solvented paint washings. Their contents were discharged onto the ground at the Bairds Road premises, near the creek.

[16]   The Council received a complaint about that discharge. Because of the  danger of noxious substances entering waterways, the  Council  took  urgent remedial steps. It arranged for a vacuum loading truck to visit the site to remove waste from stormwater catch-pits, and oil and oily soil from the creek bank. Council officers estimated that the 13 July 2001 incident resulted  in  between  two  and  three tonnes of waste oil being discharged.

[17]   While at the premises, the Council’s officials discovered evidence of other serious incidents that had occurred through the discharge of waste  liquids  into storm water cesspits on the property.

[18]   In addition, harmful practices were discovered, including improper storage of automotive parts and burning of scrap in the open. The former resulted in oil and other waste liquids being drained onto the ground, part of which was an unsealed surface. The latter resulted in concentrations of heavy metals finding their way into underground water and the creek. Battery acid had also been discharged.

[19]   The Council officers observed oily wastes weeping from the ground in the vicinity of the creek. Oily sheens were seen in the creek. Vegetation in the vicinity  of the creek showed signs of contamination.

[20]   On 1 and 24 August 2001 abatement notices were served on both Mr Conway and Cash for Scrap. A further abatement notice was served on Millennium

Investments on 6 September 2001. The abatement notices required steps to be taken to remedy the problem disclosed.

[21]   No appeal was lodged against the abatement notices. A right of appeal to the Environment Court is conferred by s 325 of the Act.

[22]   After service of the abatement notices Council officers continued to visit the site. They noticed some (but very few) attempts had been made to mitigate  identified problems. For example, some sawdust had been spread across the surface of the site. But little else had been done.

[23]   As a result of further inquiries, Council officers decided that insufficient progress had been made to remedy or mitigate the conduct to which the notices were directed. For example, on 25 August 2001 oil was observed weeping from shipping containers; oil was also found in storm water catch-pits. On 13 September 2001, oil was found in depressions in the yard and on geotextile cloth placed on the bank in an endeavour to prevent further discharges of oily substances into the waterway.

[24]   The Council sought enforcement orders from the Environment Court. Enforcement orders are made to compel those in breach of obligations under the Act to remedy or mitigate adverse effects on the environment caused by their conduct. Generally, see ss 314 - 321 of the Act.

[25]   The applications for enforcement orders were made on notice to Mr Conway, Cash for Scrap and Millennium Investments. They each elected to be heard, on the applications.  Evidence  was  put  before  the  Environment  Court  on  behalf  of   Mr Conway and the two companies.

[26]   An interim enforcement order was made on 4 November 2002. Another  order was made on 19 December 2002. The interim order of 4 November 2002 was made final on 17 March 2003.

[27]   By their pleas of guilty Mr Conway and the two companies accepted that the following orders of the Environment Court had been breached:

a)The interim order of 4 November  2002  requiring  Mr  Conway,  Cash for Scrap and Millenium Investments:

… by 10 January 2003 [to] remediate and restore to natural ground levels and protect from erosion those areas of the site and neighbouring property contaminated by hydrocarbon oil and/or battery acid and/or ash from open burning on the site by removal of contaminated material and reinstatement and stabilisation of the stream bank and affected batter in accordance with the abatement notice served on 14 May 2002, …

b)The interim order of 4 November  2002  requiring  Mr  Conway,  Cash for Scrap and Millenium Investments:

… by 10 January 2003 [to] remediate and restore to natural ground levels and protect from erosion, in accordance with Auckland Regional Council technical publication 90, those areas of the neighbouring property between [the Baird Road site] and the stream which have been filled with steel and building rubble;

c)The order of 19 December 2002 requiring Mr Conway, Cash  for Scrap and Millenium Investments to “cease the operation of a scrap metal yard” at the Bairds Road premises “until such time as [they]:

(a)have put in place appropriate measures to prevent the unauthorised discharge of contaminants, including engine oil, transmission lubricants, hydraulic fluid, power steering fluid, radiator fluid, suspension fluid, fuels, battery acid, and

(b)have obtained the appropriate resource consents including Land Use consent from Manukau City Council, Building Consent from Manukau City for the structure erected after 24 March 1996, and

(c)have obtained the appropriate resource consent from Auckland Regional Council to discharge contaminated stormwater in accordance with the Proposed Auckland Regional Plan: Air, Land and Water;

…

d)The order of 19 December 2002 requiring Mr Conway, Cash for Scrap and Millennium Investments to cease immediately:

… accepting scrap metal onto site and remove all existing stocks of scrap metal from the site within one month of this order coming into effect; and until that date and within one week from this order coming into effect place all existing stocks of scrap metal contaminated by oil under cover and with such measures as prevents further discharge of oil to ground and/or stormwater and further, within one week of this order coming into effect, place all existing stocks of  zinc metal or its alloys under cover and with such measures as prevents any rain flushing of that metal or its alloys to ground and/or stormwater.

Environment considerations

[28]   Coastal areas of the Tamaki Estuary have been identified in the Auckland Regional Plan as sensitive areas due to their importance as roosting and  feeding areas for large numbers of mainly endemic wading birds, including some threatened species. The Estuary is a tidal arm of the Hauraki Gulf Maritime Park. Efforts have been made for some time by the Council to repair damage to the waterways caused by years of pollution.

[29]   The Tamaki Estuary has also been designated as a wildlife habitat of  regional importance, specified by the Department of Conservation as “an area of significant conservation value”.

[30]   The release of  contaminants  into  a  creek  that  discharged  into  the  Tamaki River had the potential to threaten the lives of insects, birds and fish. There was a real risk that the conduct of the appellants could have introduced contaminants into the food chain, thereby causing public health and animal welfare concerns.

[31]   The Council’s assessment was that the wastes discharged had the potential to affect wide areas of inter-tidal biota, such as crabs, shellfish and marine worms. Discharges were likely to contribute to the general degradation of the marine environment. In that context, discharges of the type that occurred in this case were likely to set back efforts made to improve the environmental quality of the estuary.

The District Court’s sentencing decision

[32]   After setting out the factual background, the learned District Court Judge considered the proper approach to sentencing in an environmental case. He said:

[37]      I propose to commence with the provisions of s 8(a) of Sentencing Act 2000. That requires me to take into account the gravity of the offending and the degree of culpability of the parties.

[38]      The key issues that will be considered as part of the sentencing in this matter are first and foremost what environmental damage resulted from the various contraventions of the environmental laws by the various defendants.

[39]      The second step is to make an assessment of the parties’ culpability for creating the situation that gave rise to that harm.

[40]      The third relevant matter is the extent of the disobedience to the Abatement Notices and Enforcement Orders and their culpability in contravening the notices and the orders. A further aspect is the allocation of culpability between the parties.

[33]   After referring to the environmental effects of the offending (as to which see paras [29] - [31] above) Judge Doogue continued:

[43] For the purposes of  sentencing it  is  necessary for me  to  come  to some judgment as to the degree of severity of the impact on the environment. My review of the material provided in the summaries and annexes and the photographic evidence is that the impact was a moderate one. Most people would expect that a serious episode of environmental damage would be accompanied by dramatic and visible sequences such as widespread dying vegetation, dead fauna, major accumulations of waterborne oil etc. It has to be said, in fairness to the defendants, that none of this has been proved to in the present case. If it did occur it has not been recorded or observed. Of course, any environmental damage, particularly in sensitive areas like the Tamaki Estuary and the wider Hauraki Gulf, causes very real concern. It is possible to imagine worse damage to the environment than resulted from the actions of the accused in this case, [however] it should not be trivialised. I assess the seriousness of the offending, so far as damage to the environment is concerned, as moderate. (our emphasis)

[34]   The Judge then addressed issues of culpability.   He found that, from the   first occasion Council officers attended on site on 19 July 2001 there was no doubt that the problem was serious. Yet, neither Mr Conway nor the companies took steps to remedy the problems. Indeed, as the sentencing Judge observed, even at the date of sentencing no resource consent had been sought.

[35]   The Judge regarded the duration of offending and the disregard  of  abatement notices and two enforcement orders as aggravating features. The Judge described that disregard as “a blatant and long standing flouting of directions which were designed to stop further discharges.”

[36]   Judge Doogue found Mr Conway to be the principal human being responsible for what occurred on site. It was Mr Conway’s management of the business that led to contamination of the ground and the nearby tributary and it was he who had control  of  the  business  and   disobeyed   orders   of   the   Environment   Court.  Mr Conway’s culpability was assessed as high.

[37]In determining whether Mr Conway ought to be imprisoned the Judge said:

[66]      I have not found  this  aspect  of  the  matter  easy.  I  accept  that  Mr Conway is a man who is capable of doing good. My assessment is that Mr Conway has little time for regulations and restrictions. I believe that mistakenly saw the issue as a personal contest between himself and the ARC. It seems likely that his views which were essentially that the ARC. officers were overstating the significance of what occurred on the site at Bairds Rd; that it was only late in the day that he saw for the first time that he might have been minimising a serious situation.

[67]      In the end, though, I think the Crown submission that imprisonment is the correct sentence for Mr Conway is correct. Even although the gravity of the offending in terms of its effect on the environment might be described as moderate, the additional feature of the long standing disregard of Abatement Notices and Enforcement Orders points towards imprisonment being the appropriate sentence. As well there are the requirements of deterrence for both Mr Conway and other persons. My impression is that such co-operation that has been achieved so far has been grudging and has owed more to the impending sentencing than to  a  proper  realisation  on  Mr Conway’s part that what he has been doing is wholly unacceptable and wrong. Unless a deterrent sentence is imposed I foresee that apparently ingrained habits of acting with disregard to the physical environment will re-emerge.

[68]      I have not overlooked Mr Kaye’s submission that a s 8(g) of the Sentencing Act requires me to impose the least restrictive outcome that is appropriate in the circumstances. Having done so, I remain firmly of the view  that  purposes  of  this  sentencing  in  this  case  including  holding  Mr Conway accountable for harm done to the community (s 7(1)(a)), and denunciation of the conduct (s 7(1)(e)) and the requirements of  deterrence  (s 7(1)(f))  require  that   a   sentence   of   imprisonment   be   imposed.   (our emphasis)

[38]   As to the two companies, the Judge distinguished the roles  of  Cash  for Scrap Ltd and Millennium Investments. Cash for Scrap was the trading entity carrying on business at the premises and party to actual discharge of contaminants. Millennium Investments Ltd was the owner of the premises, playing a passive role by permitting discharge of contaminants. The Judge found that Millennium’s culpability was less than that of Cash for Scrap.

[39]After considering relevant factors the Judge said:

[87] The maximum fines for the offences charged are $200,000. My conclusion is that in the case of CFS the appropriate fine is $25,000 and in the case of MIL $15,000. In each case I direct that 90% of the fine is to be paid to the Auckland Regional Council under s 342 RMA.  In  imposing these  penalties  I  have  also  had  regard  to  the   fact   that   some   financial detriment will be caused, at least to CFSL, through not having the services of Mr Conway for a short time because of the sentence I have imposed on him.

Grounds of appeal

[40]   Mr Kaye, for the appellants, submitted that Mr Conway ought to have been sentenced to community work rather than imprisonment. He submits further that Cash for Scrap and Millennium Investments ought to have been sentenced to pay fines at a lower level than those imposed. For those reasons he submitted that the sentences imposed were manifestly excessive.

[41]   Mr Lawry, for the Crown, submitted that the sentences were within the range available to the Judge. In respect of Mr Conway’s offending, he submitted that imprisonment was the only option having regard to the duration and nature of the offending, including his failure to take steps to rectify the position after service of abatement notices and enforcement orders.

Analysis of points raised on appeal

Mr Conway

[42]   Mr Kaye approached this issue in two ways. First, he attempted to deconstruct the analysis undertaken by Judge Doogue (on the basis of the totality of offending) in an attempt to persuade us that individual factors on which the Judge relied to impose a sentence of imprisonment were undeserving of the weight attributed to them. Second, he submitted that even if we were to come to the conclusion that a term of imprisonment could have been imposed, a sentence of community work (perhaps in conjunction with a fine) was more appropriate and the one that best accorded with s 8(g) of the Sentencing Act 2002.

[43]   In our view, Judge Doogue was right to approach the sentencing by reference to the totality of offending. In doing so, he followed the requirements of s 85 of the Sentencing Act. Unless the Judge had sentenced on that basis, the true culpability of Mr Conway over an extended period of time could not properly have been assessed. There is no basis on which the Judge’s approach to sentencing in that regard can be impugned.

[44]   The next, and more difficult, question however is whether it was appropriate for the Judge to impose a sentence of imprisonment. That question requires a more extensive consideration of s 339 of the Act and ss 16 and 56 of  the  Sentencing    Act 2002.

[45]   The general principle is  that  a  non-custodial  sentence,  such  as  community work, ought to be regarded as a real and effective alternative to imprisonment. We refer, in particular, to R v Burton [1982] 1 NZLR 602 (CA) at 604-605 and R v Minto [1982] 1 NZLR 606 (CA) at 607. Both of those cases arose from protests against the 1981 Springbok tour of New Zealand. In each case this Court quashed sentences of imprisonment and, instead, imposed sentences of community service and periodic detention respectively in conjunction with a fine. The sentencing options of community service and periodic detention have now been

elided into the single sentence of community work: see ss  55 - 69  of  the  Sentencing Act.

[46]   Judge Doogue regarded a sentence of imprisonment as necessary to meet the sentencing goals set out in s 7(1)(a), (e) and (f) of the Sentencing Act, namely to hold Mr Conway accountable for harm done to the community, to denounce his conduct and to deter Mr Conway and others of like mind from offending in this way.

[47]   In fixing the term of imprisonment the Judge had regard to the following factors:

a)The pleas of guilty entered by Mr Conway to the charges.

b)Mr Conway’s personal circumstances, including the state of his health.

c)The fact that some credit ought to be allowed for the limited steps taken to undo the harm done by paying for remedial work.

d)Material placed before the Judge of Mr Conway’s good character.

e)The maximum period of  imprisonment  available  under  the  Act (two years).

The length of the term of imprisonment was shaped by two factors:

a)First, the Judge’s view that anything less than three months imprisonment would serve very little practical purpose.

b)Second, his view that the requirements of justice would be met by imposing a short term of imprisonment.

[48]   Mr Kaye noted that the only previous case in which a person had been sentenced to imprisonment for breaches of the Act was R v Borrett [2004] NZRMA

248 (CA). In that case Mr Borrett had been charged  with  breaches  of  the Waitakere City Council Proposed District Plan and an interim enforcement order made by the Environment Court. Mr Borrett was sentenced in the District Court to a term of imprisonment of 20 weeks and ordered to pay costs of $5000. This Court allowed his appeal against sentence, substituting a sentence of 12 weeks’ imprisonment and quashing the order for costs.

[49]   The judgment of the Court was delivered by Salmon J. After describing the factual background, the Court concluded that there had been extensive  deposits of fill on portions of the site and a significant removal of trees. The main affected area was shown as having a variety of types of fill and significance weed infestation. Substantial cut and fill, in converting what was previously a steep walking track into a four or five metre wide metalled road of lesser gradient, was also apparent. That metalled road had been cut through native bush.

[50]   The Court referred to Mr Borrett’s view that he was entitled to do what he liked on his own land and that what he did, did not impact on the wider environment. The Court said he was wrong on both those points. For the Court, Salmon J added,  at 252, para [18]:

The Resource Management Act recognises that the rights of a land owner are subject to broader public considerations. As to the wider environment, it can be destroyed by incremental activities such as those undertaken by the appellant.

[51]   This Court, in Borrett, took the view that a significant penalty had to be imposed for the offending because the history of activity on the site was one of contempt for both the provisions of the Act and orders of the Environment Court. Nevertheless, the Court took the view that a short prison sentence was sufficient to make it clear to Mr Borrett that Courts would not countenance behaviour such as his. In order to impose the least restrictive outcome, the sentence of 20 weeks’ imprisonment was quashed and substituted by one of 12 weeks’ imprisonment.

[52]   Mr Kaye sought to distinguish Borrett in the following respects.  First, Borrett did not involve a plea of guilty prior to jury trial. Second, the charges involved illegal earthworks and illegal clearance of native vegetation, said, by

Mr Kaye, to be worse than the conduct in this case. Third, Mr Borrett had previous convictions  for  offences  under  the  Act,   therefore,   differentiating   him   from Mr Conway. Thus, Mr Kaye argued a sentence of imprisonment of three months, being the same as that imposed upon Mr Borrett, should be viewed as manifestly excessive.

[53]Section 16(1) and (2) of the Sentencing Act 2002 provide:

16 Sentence of imprisonment

(1)        When considering the imposition of a sentence of imprisonment for any particular offence, the court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.

(2)        The court must not impose a sentence of imprisonment unless it is satisfied that,—

(a)        a sentence is being imposed for all or any of the purposes in section 7(1)(a) to (c), (e), (f), or (g); and

(b)        those purposes cannot be achieved by a sentence other than imprisonment; and

(c)        no other sentence would be consistent with the application of the principles in section 8 to the particular case.

[54]   In contrast, s 56 of the same Act, setting out guidance on the use of the sentence of community work, provides:

56 Guidance on use of sentence of community work

(1)        In considering whether to impose a sentence of community work, the court must give particular consideration to—

(a)        whether the nature and circumstances of the offending make it appropriate for the offender to make compensation to the community in the form of work, in addition to, or instead of, making reparation to any person in respect of the offending; and

(b)        whether the sentence is appropriate having regard to the offender's character and personal history, and to any other relevant circumstances.

(2)        A sentence of community work is inappropriate if the court is satisfied that—

(a)        the offender has alcohol, drug, psychiatric, or intellectual problems that indicate that it is unlikely that he or she would complete a sentence of community work; or

(b)        for any other reason it is unlikely that the offender would complete a sentence of community work.

(3)        The court may assume that suitable work is available for the offender to perform under the sentence unless the court is advised otherwise by a probation officer.

[55]   In our view, the question is: which sentence is more appropriate in the circumstances of the particular case? Compare s 16(2) with s 56(1) and (2), all of which emphasise the term “appropriate”.

[56]   Section 339 of the Act sets out the penalties which can be imposed for breaches of the Act. Section 339(1) provides maximum penalties of two years’ imprisonment or fines of up to $200,000. If the offence is a continuing one, an offender is also liable to a further fine, not exceeding $10,000 for every day or part of a day during which the offence continues.

[57]   Section 339(4) of the Act, amended when the Sentencing Act 2002 was enacted, now provides:

(4)        A court may sentence any person who commits an offence against this Act to a sentence of community work, and the provisions of Part 2 of the Sentencing Act 2002, with all necessary modifications, apply accordingly.

In our view, all this provision does is to emphasise the availability of the option of community work when a sentencing Judge considers whether to impose a sentence of imprisonment.

[58]   Against that background we consider whether there is merit in Mr Kaye’s submission that a sentence of community work ought to have been imposed.

[59]   The starting point is the need to view the sentence of community work as a real and effective alternative to imprisonment for the reasons given in Burton and Minto. However, it is clear that a community based sentence (while being a real and effective alternative) may not be an appropriate sentence in cases where

accountability for harm done to the community, deterrence and denunciation are the most important sentencing goals.

[60]   The second point is to apply the Act and the Sentencing Act in harmony.  That the two statutes were intended to be read in that way is clear enough from the specific terms of s 339(4) of the Act.

[61]   It is also clear that the Sentencing Act was intended as an overarching piece of legislation designed to apply to all sentencing in this country. We refer to and adopt observations of Randerson J in Selwyn Mews Ltd v Auckland City Council (High Court Auckland, CRI 2003-404-159-161, 30 April 2004) to that effect.

[62]   The third point relates to the approach to sentencing for offending against the Act. The Judge regarded protection of the public as the primary consideration in sentencing for offending under the Act. In so doing he relied on a decision of the Full Court of the High Court in Machinery Movers Ltd v Auckland Regional Council [1994] 1 NZLR 492 and on a Canadian decision, R v Bata Industries Ltd (1992) 9 OR (3d) 329; 70 CCC (3d) 394.

[63]   In our view the proper approach to sentencing for offending of this nature has been modified by the Sentencing Act. That point was made by Randerson J in Selwyn Mews. Justice Randerson said:

[35]      Reference was made to the sentencing principles established in Machinery Movers Ltd v Auckland Regional Council [1994] 1 NZLR 492. That decision continues to have application but must now be read in the light of the provisions of the Sentencing Act 2002.

[36]      The Sentencing Act largely replaces the Criminal Justice Act 1985 and codifies sentencing principles developed by the courts over a lengthy period. It applies to all sentencing on criminal charges including charges laid under the Building Act and the Resource Management Act. It calls for a systematic approach to sentencing, commencing with a consideration of the purposes of sentencing under s 7. Not all those purposes will always be relevant to sentencing in environmental cases. For example, in some cases the  harm  done  may  be  to  the  community  generally  rather  than   specific members of it. Reparation to particular victims may be relevant in some cases but not others. Rehabilitation will have no relevance to corporate offenders and may not be relevant to individuals who are otherwise of good character.

[37]      But many of the purposes of sentencing in s 7 will usually be relevant in environmental cases including holding the offender accountable for harm done; promoting a sense of responsibility for the harm; denunciation and deterrence (both personally and generally).

[38]      The principles of sentencing in s 8 will also be relevant particularly (under s 8(a)) the gravity of the offending and the degree of culpability involved. That will include the extent of any damage or adverse effects caused to the environment and the extent to which there was deliberate or reckless conduct. As well, the court will need to consider the issues of seriousness of the offence and penalties under ss 8(b), (c), and (d); consistency in sentencing levels under  s  8(e); the effects  on victims  under s 8(f) where applicable; and the particular circumstances of the offender under ss 8(h) and (i). Where there are issues about mitigating any adverse effects on the environment such as repairing damage or clean up work, then ss 8(j) and 10 will become relevant.

[39]      Aggravating and mitigating factors under s 9 are to be considered. Although a number of these do not have particular relevance in environmental cases, the matters to be considered are not exclusive: s 9(4).

[40]      In environmental cases, fines will most often be the appropriate penalty. There are a number of provisions of the Sentencing Act relevant to fines. Section 13 provides that a fine must be imposed unless any of the specified exceptions in ss 13(1)(a), (b), (c), or (d) applies. Other provisions relevant to fines are ss 14 and 39 to 43. Obviously, the capacity of the offender to pay a fine will be very relevant and the court has power to order an offender to make a declaration of financial capacity if necessary. That might have been a useful tool in the present case.

[41]      Under the Resource Management Act, the court also has power to impose a sentence of imprisonment or community work: s 339(1) and (4). If a sentence of imprisonment is being considered, s 16 of the Sentencing Act is important. First, regard must be had to the desirability of keeping offenders in the community so far as practicable in terms of ss (1). Secondly, there is a presumption against imprisonment under s 16(2). Section 8(g) is also relevant (the least restrictive outcome in the circumstances).

[64]   The sentencing goals that influenced Judge Doogue to impose a term of imprisonment were accountability for the harm done to the community (s 7(1)(a) Sentencing Act), denunciation (s 7(1)(c)) and deterrence (s 7(1)(f)). All of those goals are specifically mentioned in s 16(2)(a) in relation to the imposition of a sentence of imprisonment.

[65]   In our view, the Judge was right to choose the sentencing option that best met the goals of accountability, denunciation and deterrence. There is a world of difference, in the minds of most members of the community, between a sentence of imprisonment and a sentence of community work, notwithstanding the observations

made by this Court in both Burton and Minto. A short sentence of imprisonment  may well deter Mr Conway from behaving in this way again. He will realise that further offending of this type is likely to result in a longer period of imprisonment. Equally, it may well deter other members of the  community, of similar mind to     Mr Conway, from ignoring or deliberately flouting the provisions of the Act or orders of the Environment Court.

[66]   If a sentence of imprisonment were not imposed potential offenders might well regard the economic risk of a fine, or the possible sanction of community work, as a risk worth taking to gain profit from illegal activities. A short sentence of imprisonment (as evidenced  by  Mr  Conway’s  appeal  to  us  to  impose community work) is much more likely to be regarded as a deterrent by the community than a sentence of community work.

[67]   When a Court has to consider the possibility of imposition of a short term of imprisonment to give effect to sentencing goals such as accountability, denunciation and deterrence it will often be difficult to compare like cases in any meaningful way. Instead, as s 16(2)(a) and s 56(1) and (2) of the Sentencing Act suggest, the focus will be on which sentence is more appropriate.

[68]   We are also satisfied that, in determining the appropriate sentence to impose for offending against the Act, a sentencing Judge is entitled to have regard to the policies underpinning the Act. In this particular case, the provisions of ss 5, 6(a) and 7(c), (d) and (f) of the Act assume relevance. Those provisions state:

5Purpose

(1)        The purpose of this Act is to promote the sustainable management of natural and physical resources.

(2)        In this Act, sustainable management means managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural wellbeing and for their health and safety while—

(a)        Sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and

(b)        Safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and

(c)        Avoiding, remedying, or mitigating any adverse effects of activities on the environment.

6Matters of national importance

In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall recognise and provide for the following matters of national importance:

(a)        The  preservation  of  the  natural   character   of   the  coastal environment (including the coastal marine area), wetlands, and lakes and rivers and their margins, and the protection of them from inappropriate subdivision, use, and development:

…

7Other matters

In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall have particular regard to—

…

(c)the maintenance and enhancement of amenity values:

(d)Intrinsic values of ecosystems:

(f) maintenance and enhancement of the quality  of  the environment:

…

See also the functions conferred on Regional Councils, in respect of water management issues, by s 30 of the Act.

[69]   The extended definition of sustainable management in s 5(2) emphasises (amongst other things) the statutory purpose of avoiding, remedying or mitigating adverse effects on the environment. Section 6(a) recognises the national importance of the preservation of the coastal environment while s 7 draws attention to the need to consider not only the maintenance of environmental quality but also its improvement.

[70]   In cases such as this, these provisions assist the sentencing Judge to identify the matters Parliament considers to be significant where breaches under the Act are alleged and to assess accordingly the impacts of the offender’s conduct as well as the extent of culpability.

[71]   The sentencing goals of accountability, denunciation and deterrence could  not have been met in this case by a sentence other than imprisonment. Further, we are satisfied that the policies underlying the Act could not have been given effect without such a sentence. This was a serious case, involving persistent  offending over a lengthy period with significant environmental damage to important waterways. In addition, Mr Conway and the two companies deliberately flouted the authority of both the Council and the Environment Court while continuing their unlawful activities. Even now relevant resource consents have not been obtained,  yet the business continues from the site.

[72]   In some cases the fact that a guilty plea has been entered (particularly if entered early) and remorse shown may make a sentence of imprisonment inappropriate. But a late plea of guilty, particularly one entered on the eve of trial, with an absence of remorse may make a sentence of imprisonment more appropriate than community work.

[73]   When a Judge imposes a short sentence of imprisonment an appellate court will necessarily focus on whether the sentence was an appropriate choice, rather than whether it was manifestly excessive. We are satisfied that the sentencing goals of accountability, denunciation and deterrence could not have been achieved in this case by a sentence other than imprisonment.

[74]   For those reasons we are satisfied that the Judge was fully justified to impose a term of imprisonment. We are also satisfied that the term of  imprisonment imposed was appropriate.

Cash for Scrap and Millennium Investments

[75]   Mr Kaye challenges the level of fines imposed, primarily on the basis of a comparison with fines imposed in other cases in the District Court.

[76]   The fines imposed in this case were comparatively modest, given the maximum fine that could have been imposed of $200,000 per company. Furthermore, it is clear that each company took the economic risk of profiting through illegal activity. Indeed, from what we gleaned at the hearing of the appeal, the conduct continued while Mr Conway was on bail. It is important that the Court’s response to corporate offending makes it unattractive to take the risk of offending on economic grounds.

[77]   In those circumstances, the fines cannot be regarded as manifestly excessive. Indeed, fines at a higher level may well have been justified given the contempt shown for both regulatory requirements and Court orders.

Result

[78]   For those reasons, we dismissed the appeals against sentence on 28 October 2004.

Solicitors:

Crown Solicitor, Auckland