The Wanaka Gym Ltd v Queenstown Lakes District Council
[2012] NZHC 284
•27 February 2012
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CRI-2011-425-000002
CRI-2011-425-000003 [2012] NZHC 284
THE WANAKA GYM LIMITED FIONA CAROLINE GRAHAM Appellants
v
QUEENSTOWN LAKES DISTRICT COUNCIL
Respondent
Hearing: 26 September 2011
5 October 2011
Further submissions 11 November 2011
Appearances: D More for Appellants
R Cunliffe and T Surrey for Respondent
Judgment: 27 February 2012
RESERVED DECISION OF HON JUSTICE FRENCH
Introduction
[1] Queenstown Lakes District Council prosecuted Dr Fiona Graham and her company, The Wanaka Gym Limited, for various alleged offences under the Building
Act 2004.
THE WANAKA GYM LIMITED V QUEENSTOWN LAKES DISTRICT COUNCIL HC INV CRI-2011-425-
000002 [27 February 2012]
[2] Following a defended hearing in the District Court, a Judge found all the charges proved.1 He imposed fines totalling $64,000 and declined an application to discharge Dr Graham without conviction.2
[3] Dr Graham and Wanaka Gym now appeal the convictions. Dr Graham also appeals against sentence.
[4] The key issues for determination are:
(i)Did the signatories of a notice to fix and a dangerous building notice have the requisite delegated authority?
(ii)Was the dangerousness test under s 121 of the Building Act satisfied on the evidence?
(iii)Was a condition in the building consent requiring fire safety standards to SA ratings a lawful condition?
(iv) Should Dr Graham be discharged without conviction?
(v) Should penalties have been imposed on both the company and
Dr Graham?
Factual background
[5] The building at the centre of the dispute is situated in Tenby Street, Wanaka. The property is owned by Wanaka Gym. Dr Graham is the sole director and shareholder of Wanaka Gym.
[6] The building was originally a joinery factory and was later converted to a commercial gym. A residential unit was then added on to the back of the building,
with the commercial gym operating at the front. In about 2000, Dr Graham decided
1 Queenstown Lakes District Council v The Wanaka Gym Ltd DC Queenstown CRN-
08059500156, 19 April 2010.
2 Queenstown Lakes District Council v The Wanaka Gym Ltd DC Queenstown CRN-
08059500156, 10 January 2011.
to close the gym and convert it into low-cost residential accommodation where young people could stay while in Wanaka, in particular during the ski season. The idea was to have one residential unit with communal living facilities and a group sleeping area.
[7] Wanaka Gym applied for a building consent in 2000 to enable it to undertake the conversion. For reasons which are in dispute, the application became stalled. In
2000 the council issued a dangerous building notice which was subsequently withdrawn.
[8] Following an inspection in August 2003, the council issued another dangerous building notice. The council was of the view that the use of plastic tarpaulins to separate sleeping areas in the old gymnasium part of the building was dangerous in the event of a fire. It required the immediate vacating of the property and for the building to remain unoccupied by sleeping residents.
[9] In early September 2003, the council obtained an interim injunction to restrain Wanaka Gym from using or permitting the use of the building.
[10] On 24 September 2003, the substantive hearing for a permanent injunction was adjourned part-heard after Wanaka Gym gave an undertaking to the Court.
[11] The undertaking was to complete the filing of a new building consent application, as well as the following:
1.The Respondent undertakes to this Court that until such time as the premises at 155 Tenby Street Wanaka have been upgraded to the standard that meets a SA rating, only the Respondent, named family members, and guests not exceeding four in number, will occupy the premises.
2.The Respondent undertakes that currently working smoke detector alarms, operational fire fighting equipment and egress from the building is in existence.
…
5.Upon consent being granted the Respondent will forthwith carry out the alterations to the standard required by the Building Code. Upon completion of the alterations and any further inspections by QLDC
or their nominated representative the question of the use to which the building is then put may be reviewed by the Court.
[12] ―SA‖ is a term used in the Acceptable Solutions part of the Fire Safety
Compliance document prepared in respect of the Building Code. It refers to
―sleeping accommodation‖.
[13] The building consent was eventually issued in July 2005.
[14] In 2006, the council issued contempt proceedings against Wanaka Gym alleging a breach of the undertaking. A conviction for contempt was entered in the District Court but subsequently set aside by the High Court on appeal.3
[15] Nothing further happened until June 2008 when the council undertook a further inspection. According to the council‘s evidence, the inspection revealed the existence of fire hazards and building work that did not comply with the building consent.
[16] Shortly after the inspection, a dangerous building notice was affixed to the building.
[17] The council undertook a further inspection on 15 July 2008 to check compliance with the dangerous building notice, following which a notice to fix dated
18 July 2008 was served on Dr Graham. The notice set out particulars of alleged non-compliance with the building consent that had been granted and alleged non- compliance with the building code.
[18] The council was concerned the building was still being occupied despite the service of the two notices. It accordingly sought and obtained another interim injunction restraining Wanaka Gym from allowing the premises to be occupied for residential purposes.
[19] After obtaining the injunction on 8 August 2008, the council undertook a further inspection on 11 August 2008. Later, in December 2008, it initiated a
3 Wanaka Gym Ltd v Queenstown Lakes District Council HC Dunedin CRI-2006-412-36, 24
November 2006.
criminal prosecution laying fourteen informations under the Building Act. Nine of those informations were against Wanaka Gym and five against Dr Graham personally in her capacity as a director.4
[20] As I have already mentioned, following a defended hearing in the District Court, a Judge found all the charges proved. He imposed fines totalling $64,000 and declined an application to discharge Dr Graham without conviction.
The appeal against conviction
[21] The appeal is against all the convictions and accordingly I now turn to deal with each of them in turn.
Wanaka Gym – s 116B(1)(a) use of a building on or about 10 June 2008 for which it was not safe
[22] The unsafe use alleged in the information was using the building for sleeping accommodation which was not safe in the event of fire.
[23] As noted by the Judge, the question of whether the use was unsafe falls to be determined by reference to s 121 of the Building Act which stipulates that a building is dangerous if, in the event of fire, injury or death to any person is likely because of fire hazard or the occupancy of the building.
[24] In finding the charge proved, the Judge relied on testimony from three prosecution witnesses that the use of windbreak or shadecloth below the ceiling insulation material was inappropriate and was a significant potential hazard in the event of fire. The Judge said he was further satisfied that loose wiring which ran above the shadecloth material and close to sleeping occupants was also potentially dangerous in the event of fire.
[25] On appeal, Mr More submitted there was no evidence as to what happens to shadecloth when it is ignited, and in the absence of such evidence the Judge should
have been left with a reasonable doubt as to whether the cloth would ignite or simply
4 Relying on Building Act 2004, s 386(5).
melt in the proximity of any flames. Mr More also pointed out that the shadecloth had been present during previous council inspections and yet no issue was taken with it. As regards the loose wiring, Mr More submitted that the wiring was not live and that a finding it was only potentially dangerous was too low a threshold of what constitutes an unsafe use. In Mr More‘s submission, the correct legal test was
reasonable probability of injury.5 Mr More further submitted it needed to be borne in
mind that the building was occupied by long-term tenants who knew their way around the building.
[26] I do not accept those submissions.
[27] In Weldon Properties Ltd v Auckland City Council6 this Court upheld a District Court judgment in which it was stated that ―likely‖ for the purposes of the predecessor section to s 121 does not mean ―probable‖, as that puts the test too high. On the other hand, a mere possibility is not enough, so it has to be a reasonable consequence or something that could well happen.
[28] The evidence on which the Judge relied to support his finding was given by two experienced building officers and a fire safety officer. What was of concern was that in the event of fire it was likely that the whole of the windbreak type cloth would ignite quickly, and rapidly spread across the whole area allowing the insulation to fall, seriously hampering the ability of people to escape. As regards the loose wiring, there was in fact evidence that it was live. In any event, the key point in terms of danger was not that the loose wiring was live, but that it could hamper the escape of occupants in a fire.
[29] That evidence was not seriously challenged in cross-examination and in my view, applying the test in Weldon Properties amply justifies finding the use was
unsafe for the purposes of the offence under s 116B.
5 Relying on Rotorua DC v Rua Developments Ltd [1998] DCR 1097; Dowling v South
Canterbury Electric Power Board [1966] NZLR 676 at 678.
6 Weldon Properties Ltd v Auckland City Council HC Auckland HC26/97, 21 August 1997. The Weldon formula was followed recently by the District Court in Thames-Coromandel District Court v Fawcett DC Hamilton CIV-2008-019-000655, 16 December 2008. In so far as there is any divergence between Weldon and Dowling, my preference is to follow the more recent Weldon decision.
[30] It is true that previous inspections, including an inspection by the fire safety officer, had not drawn attention to the condition of the ceiling. However, until June
2008 the council had no reason to believe the building was being occupied and used in the way they discovered it was when they inspected on 10 June 2008. There was also evidence that on earlier inspections, council officers would not have been looking for the ceiling material, but had the work on the building been completed and a final inspection undertaken, the problem would have been picked up then.
[31] In those circumstances, I do not accept that the failure to draw attention to the shadecloth earlier detracts from the claims about it being unsafe or gives rise to any issue of unfairness or abuse of process. Nor do I consider that the tenants‘ alleged familiarity with the building detracts from the Judge‘s finding. There was in fact evidence that new tenants were arriving from May 2008 through to July 2008.
[32] There is also a further point made by Mr Cunliffe, namely that in addition to the shadecloth and loose wiring, a finding of unsafe use is also supported by evidence of impediments to an emergency exit, notably door swings and obstructions. It is therefore not correct to assert that the tenants would have been easily able to exit the building in the event of an emergency.
Wanaka Gym and Dr Graham – permitting the use or occupation of a building on or about 15 July 2008 when a dangerous building notice was in place
[33] Mr More raised three grounds of appeal.
[34] The first was that the council could not have been satisfied to the requisite standard that the building was dangerous. For the reasons already traversed in relation to the shadecloth and loose wiring, I do not accept that argument.
[35] The second ground of appeal related to the validity of the dangerous building notice.
[36] The notice in question was signed by the council‘s then chief executive
officer, Mr Field.
[37] At the close of the prosecution case, Mr More submitted there was no case to answer on these charges because of the absence of any evidence Mr Field had delegated authority to issue the notice. The power to issue a dangerous building notice is derived from s 124 of the Building Act. Before exercising the power, the territorial authority must be satisfied the building is dangerous. Mr Field is not the territorial authority, and accordingly in Mr More‘s submission he could only make that determination if the Council had delegated its power.
[38] Mr Cunliffe for the council advanced several arguments as to why that analysis was wrong, but also sought leave to call evidence of the delegation in rebuttal.
[39] It appears the Judge never ruled on the application to call rebuttal evidence, either in his ruling on the no case to answer submission or in final submissions when the issue of delegation was raised again and Mr More conceded that s 98(1) of the Evidence Act 2006 applied.7
[40] Rather, the Judge dealt with the matter on the basis that the point raised by Mr More had no substance and therefore he was not required to consider the prosecution‘s application. The Judge gave several reasons why he was of the view Mr More‘s argument had no substance. These included the fact that Mr Field was the council‘s agent, that the issuing of the notice was an administrative act which did not require specific delegation, that the form and wording of the notice made it plain it was issued by the council through its Chief Executive and that s 124 did not require any particular procedure or form. The Judge also found that under s 92(1) of the Evidence Act, the issue of Mr Field‘s authority was a matter which should have been put in cross-examination to the prosecution witnesses. It was not put to them and the Judge was prepared to draw an inference that if delegation was required, it had been granted.
[41] After hearing from counsel, I indicated that I was not entirely persuaded by
the Judge‘s reasoning. I was inclined to the view that the issuing of a notice under
s 124 was more than just an administrative act, requiring as it did a substantive
7 Section 98(1) is the section governing the calling of rebuttal evidence.
determination about safety. Further, the fact the notice referred to Mr Field and was signed by him could not logically take matters any further because that begs the question of whether Mr Field was authorised to sign the notice in the first place. I was also not persuaded that s 92(1) of the Evidence Act did require Mr More to put the matter in cross-examination. The validity of the notice was a matter for the prosecution to prove in order to secure a conviction.
[42] Mr More submitted that if the issue of delegated authority was a matter which concerned me, then the appropriate course of action was for me to quash the convictions and order a rehearing.
[43] However, my preference was to exercise my power under s 119(3) of the Summary Proceedings Act 1957 and allow the prosecution to call evidence of the delegation. The existence of the delegation is a matter capable of objective verification. Either it existed at the time or it did not. There can be no prejudice to Dr Graham or Wanaka Gym. The prosecution could have called the relevant evidence in rebuttal at the District Court hearing, but were prevented from doing that by the Judge‘s approach to Mr More‘s argument. Mr More submitted that the prosecution should have appealed the Judge‘s decision not to allow the rebuttal evidence, but as Mr Cunliffe points out, the Judge did not give a decision as such. His omission placed the informant at a disadvantage, and that in my view must be part of the circumstances to be taken into account under s 119(3) in determining whether this evidence could reasonably have been adduced at the hearing. Section
119(3) is to be afforded a liberal interpretation with the over-riding criterion being what will best serve the interests of justice.
[44] In my view, the interests of justice were undoubtedly best served by allowing the council to call evidence of delegation.
[45] Following my ruling, I heard evidence from a building officer, Mr Laurenson. He produced the council‘s delegation register.
[46] Under the heading ―Statutory Delegations‖, the register identifies all the relevant legislation for which the council has responsibility and the powers, duties
and responsibilities delegated under the relevant clauses of each statute and associated regulations and bylaws.
[47] Section 2.2 of the register deals with delegations to the chief executive officer. These are stated to include the delegation of all the council‘s powers, duties and responsibilities contained in a number of statutes which are listed in a table. The Building Act is on the list. The register confirms Mr Laurenson‘s understanding that the ―complete delegation‖ of any activities to do with the Building Act goes to the
chief executive officer.8
[48] Mr More pointed out that the register produced was version 7, dated October
2009, and therefore not evidence that back in June 2008 the chief executive officer had the delegated authority.
[49] However, this submission overlooks the scheme of version 7. It purports to be a complete restatement of the council‘s delegations policy that was first promulgated on 25 June 2004, every amendment affected by any subsequent version being specifically listed. The power to issue a dangerous building notice is not among any of the listed changes and therefore the document does show that from
2004 onwards the chief executive officer has always had the power to issue a dangerous building notice.
[50] The evidence satisfies me that the notice issued on 25 June 2008 was valid.
[51] A third ground of appeal relates to the definition of the term ―the building‖ and an inconsistency between the notice that was issued and the relevant informations.
[52] In stating that the council was satisfied the building was dangerous, the dangerous building notice expressly defined the term ―the building‖ as being that part of the building situated at 155 Tenby Street outlined in red on a plan attached as
Schedule A. The part outlined in red was the group sleeping area and it was this area
8 With the exception of the powers to adopt plans, strategies, policies or bylaws and the powers delegated to specific positions contained in the legislation and any associated regulations.
which the notice said no person was entitled to use or occupy until specified remedial works were undertaken.
[53] The informations, however, referred to ―the building‖ without any
qualification.
[54] Mr More contends that in referring to the whole building, the informations were clearly defective, and that it was impossible for the council to prove that the notice prohibited people from using or occupying the whole of the building when the notice did not in fact prohibit that.
[55] The point is a highly technical one. There is no suggestion that Wanaka Gym or Dr Graham were in any way misled or prejudiced. As the evidence, including cross-examination of prosecution witnesses, demonstrates, they clearly understood that the charge related only to the group sleeping area.
[56] I am satisfied that the informations which expressly included a reference to the notice did inform the appellants of the substance of the charge and that there has been no miscarriage of justice. Section 204 of the Summary Proceedings Act applies.
Wanaka Gym – carried out building work otherwise than in accordance with a building consent – constructing mezzanine living space and storage areas
[57] According to the prosecution case, the inspection of 10 June 2008 revealed building work that had not been undertaken in accordance with the building consent. One of the offending items was alleged to be the construction of mezzanine living space and storage areas in bedrooms which had not been detailed in the approved plans and consent.
[58] In order to constitute ―building work‖ for the purposes of the offence, the work in question had to amount to the alteration of a building. Mr More submitted that on the evidence what had been constructed were not living spaces but bunks. Although they had been fixed to the partitions rather than mounted on a frame sitting on the floor, that of itself could not change their essential nature. There was
insufficient room between the bunks and the ceiling for the area to be described as a living space.
[59] The same argument was advanced and rejected in the District Court. Having read the relevant testimony and viewed the photographs, I agree with the Judge that these were much more than bunks, but were part of the building. The structures span the width of the bedrooms and were fixed permanently to the walls. The mattresses in the spaces cover only part of the structure, leaving a significant amount of space for storage of clothes and personal effects. Lights attached to the ceiling are positioned above the mezzanine floors. My conclusion is that this was building work for the purposes of the offence.
Wanaka Gym – carried out building work otherwise than in accordance with a building consent – provision of non-compliant or incomplete fire exit ways
[60] The information at issue reads:
The Wanaka Gym Limited failed to comply with section 40(1) of the Building Act 2004 by carrying out building work which was otherwise than in accordance with a building consent namely BC031148 issued by the Queenstown Lakes District Council on 21 July 2005.
Particulars
By providing fire exit ways which were not compliant or complete with incorrect direction of door swing, incorrect installation of fire doors, obstruction of final exit and missing external platform and non compliant exit and directional signage.
[61] Mr More submits the information contravenes s 16(1) of the Summary Proceedings Act because it alleges two offences – fire exit ways that were not compliant and fire exit ways that were not complete. Section 16(1) states that every information shall be for one offence only.
[62] It may well be that the wording does technically breach s 16(1), but in my view appellate intervention is not warranted. As the District Court Judge pointed out, the relevant complaint related to a fire exit which did not have an appropriate exterior platform as required by the fire safety notice. The fire safety notice formed part of the building consent. It was thus work that was both non-compliant and
incomplete. The ―or complete‖ was surplusage. There has been no miscarriage of justice as a result of any deficiency in the wording of the information.
[63] A second ground of appeal raises a more fundamental issue as to whether the fire safety requirements in question were lawfully part of the building consent in the first place.
[64] The requirements were shown on an approved plan that was part of the building consent. They were derived from a fire safety report dated 26 November
2003 which the council had required Wanaka Gym to provide. The report stated
―our client, Fiona Graham, has elected to upgrade the dwelling to a standard required of visitor accommodation notwithstanding the intent to continue with residential occupation.‖
[65] Mr More submits the requirements were unlawful because they were standards required of visitor accommodation, and this was not visitor accommodation. It was a single household unit, essentially the same as a student flat.
[66] ―Visitor accommodation‖ is a term used in the council‘s district plan. It is defined as the letting of a residential accommodation for less than three months. The tenancy agreements between Wanaka Gym and the residents, however, required a minimum stay of three months.
[67] In support of his argument, Mr More referred me to a determination of the building industry authority.9 Mr Cunliffe claimed, however, that far from supporting the appellants‘ case, the determination actually supports the council‘s position.
[68] I have found the determination very helpful.
[69] It was issued after the District Court decision, and is therefore something that was not considered by the Judge. Wanaka Gym had asked the building industry
9 Regarding conditions to a building consent and the use of a building at 155 Tenby Street, Wanaka, Department of Building and Housing, Determination 2011/069, 12 July 2011.
authority to determine a number of issues, including whether the council was correct to impose visitor accommodation standards on the building consent issued in 2005.
[70] In its determination, the authority points out that residential accommodation and visitor accommodation are not terms used in either the Building Act or the Building Code. Nor are they classified uses or terms used in the Building Regulations. The authority therefore formulated the issue for decision as being whether the council was correct to issue the building consent with provisions relating to fire safety not required for a single household unit.
[71] As explained in the determination, the Building Code classifies buildings under seven categories, called classified uses. The classified uses have different features that in turn determine the fire safety requirements of the Building Code in respect of escape and spread of fire. The performance criteria that a building is required to meet depend on its classified use.
[72] The use categories relating to residential buildings are:
Type Description
2.0 HousingApplies to building or use where there is self care and service (internal management). There are three types.
2.0.2 Detached Dwellings Applies to a building or use where a group of people live as a single household or family. Examples: a holiday cottage, boarding house accommodating fewer than six people, dwelling or hut.
2.0.3 Multi-unit Dwelling Applies to a building or use which contains more than one separate household or family. Examples: an attached dwelling, flat or multi-unit apartment.
2.0.4 Group Dwelling Applies to a building or use where groups of people live as one large extended family. Examples: within a commune or marae.
3.0 Communal residential Applies to building or use where assistance or care is extended to the principal users. There are two types:
3.0.2 Community service Applies to a residential building or use where limited assistance or care is extended to the principal users. Examples: a boarding house, hall of residence, holiday cabin, back country hut, hostel, hotel, motel, nurses‘ home, retirement village, time-share accommodation, a work camp, or camping ground.
3.0.3 Community care Applies to a residential building or use where a large degree of assistance or care is extended to the principal users.
[73] In the authority‘s opinion, based on the design of the building for the building consent and the evidence provided to the authority by Wanaka Gym, the classified use of the Tenby Street building was a group dwelling use. It was not a detached dwelling. The number of persons the building was designed to accommodate (20) and Dr Graham‘s own evidence about its intended use and the numbers actually using it during the relevant period militated against finding it was a single residential unit. The authority rejected Dr Graham‘s argument that because the tenants were living as one large family, they were not ―groups‖ of people. The authority found that the term ‗group‘ was to be given a broad interpretation and that the reference in the group category to people living ―as one large extended family‖ better fitted the use of the Wanaka Gym building than the other two housing categories.
[74] Under the Building Code, the fire safety requirements for the group dwelling use are more onerous than for a single household unit. It followed, in the authority‘s opinion, that the issue of a building consent for Tenby Street with provisions relating to fire safety that were more onerous than those required for a single unit household was in fact correct.
[75] On the other hand, the provisions in the building consent exceeded those required of a group dwelling use. The fire safety report from which they were derived used the prescribed acceptable solution for a purpose group (the SA purpose group) which corresponds to community service use. For obvious reasons, the perceived fire risk for a community service use is higher than a group dwelling use, and hence the requirements are more onerous.
[76] There is, however, no prescribed acceptable solution for a group dwelling use.
[77] In the absence of a lesser prescribed acceptable solution for a group dwelling use, reliance on the more onerous acceptable solution for community service use was, as the authority put it, an appropriate proxy. The other option would have been for Wanaka Gym to have devised an alternative solution of its own that more closely met the code requirements for group dwelling use. But that would have required the
advice of a suitably qualified fire engineer and more complex design work. The benefit of using a prescribed acceptable solution is of course certainty, because the Building Consent Authority must accept it as complying with the code.
[78] Having read the determination and the evidence, I am satisfied that there is no merit in the challenge to the legality of the fire safety conditions in the consent. It is unfortunate that the parties, including Wanaka Gym‘s own fire safety report, have used the term ‗visitor accommodation‘, because it appears to have become a bone of contention ever since as to whether Tenby Street was visitor accommodation or not. Yet, in my view for present purposes, that debate is entirely irrelevant. What matters is the finding that it was not a single unit dwelling and that in the absence of an acceptable prescribed solution for a group dwelling use, the more onerous prescribed acceptable solution for SA purpose group was an appropriate proxy.
[79] I agree with the authority that the building is not a single residential unit.10
[80] I am also satisfied that the council did not ever impose visitor accommodation standards on Wanaka Gym. Nor, for that matter, did it ever impose SA (community service use) fire safety requirements. It was Wanaka Gym which undertook to comply with those standards at the injunction hearing, and it was Wanaka Gym who supplied a fire safety report which adopted the prescribed acceptable solutions for community service use. It may well be the undertaking was given under pressure, as Mr More submitted, but it would always have been open to Wanaka Gym to devise an alternative solution rather than rely on a prescribed acceptable solution. What it definitely could not do was invoke the fire safety standard for a single residential unit.
[81] In all those circumstances, I have come to a very clear view that the fire safety requirements in the building consent were not illegal.
10 The same conclusion, that it was not a single household unit, was reached by Judge Neave in
Queenstown Lakes District Council v The Wanaka Gym Ltd DC Christchurch CIV-2003-002-
000265, 18 November 2008.
Wanaka Gym – carrying out building work otherwise than in accordance with a building consent – installation of additional walls and doors not detailed in accordance with the approved building plans and consents
[82] The additional walls and doors were discovered by the council during its 10
June 2008 inspection.
[83] Mr More submits that because of an amendment to the Building Act made on
16 October 2008, undertaking the work in question would no longer be an offence, and the charge is therefore de minimis.
[84] The amendment in question is an amendment to the first schedule of the Act. It states that a building consent is not required for the construction, alteration or removal of an internal wall, including the construction, alteration or removal of an internal doorway.
[85] However, the new provision is subject to a proviso. One of the effects of the proviso is that a building consent will still be required if the means of escape from fire provided within the building is detrimentally affected.
[86] The amendment was not in force at the relevant time. Even if it had been in force, I am satisfied that because of the proviso, the construction of the additional doors and walls would still amount to an offence. There was evidence that the alterations did detrimentally affect the means of escape from the building in the event of fire.
Wanaka Gym – carrying out building work otherwise than in accordance with a building consent – construction of internal partition walls without a 400 millimetre gap between the top of the wall and the ceiling
[87] Evidence was given by prosecution witnesses that during the inspection in June 2008 they noticed that across the whole of the old gym area, where rooms had been created, the walls separating them had not been completed with an appropriate
400mm gap. Although most appeared to have a gap at the top of them, the gap was
―clearly not‖ 400mm. A number of the gaps were measured using a measuring tape.
[88] The requirement of a 400mm space between the top of the wall and the ceiling is derived from the fire safety standards that were part of the building consent.
[89] As mentioned, Mr More challenges the lawfulness of the standards. However, for the reasons already discussed, I do not accept the challenge has merit.
[90] Mr More also argued that even if the standards were lawfully imposed, there was in any event substantial compliance. He submitted it was important for the Court to look to the underlying purpose for the requirement of a 400mm gap. The purpose is to permit heat and smoke to escape above the partitions, thereby signalling to others the potential urgency of the situation and preventing heat being trapped in one small area. Mr More contended that the Judge erred in failing to consider whether safety was in fact compromised.
[91] In support of this submission, Mr More referred me to the evidence of an expert witness called by the defence. The expert, a Mr Brown, testified that the
400mm gap in the standards is a nominal figure. Mr Brown also testified that photographs he had been shown of the fire cell area at Tenby Street satisfied him there was still compliance with the standard.
[92] In cross-examination, however, Mr Brown was unable to say when the photographs he had been shown had been taken. Further, he himself had not personally inspected the building until 2009. When asked what he meant by the term
‗nominal‘, he explained he meant ―400, give or take a small tolerance‖. A gap of only 350mm would, he said, be certainly pushing the boundaries. He also conceded that he had overlooked the fact that in one bedroom, no gap at all at the top of the wall had been left or cut out.
[93] The offence is one of strict liability. The Judge said he was satisfied on the evidence, including that of Mr Brown, that the council had established some internal partition walls were constructed without the required 400mm clear space beneath the ceiling. That finding was amply supported on the evidence, and I see no reason to interfere with it.
Wanaka Gym – on or about 11 August 2008 failing to comply with a notice to fix dated 18 July 2008 – failing to provide 400mm gaps
[94] The notice to fix was issued on 18 July 2008. It identified the building work which did not comply with the building consent or building code, and stipulated what was required to be done to rectify the non-compliance.
[95] Amongst other things, the notice required Wanaka Gym to complete the construction of internal partitions providing a minimum 400mm space before any further use or occupation of the building was allowed. However, the building continued to be occupied after 18 July 2008 without the gaps being rectified.
[96] The sole ground of appeal against the conviction of this offence is that the notice was not properly issued because the signatory lacked the necessary authority. The issue is thus similar to that raised in connection with the validity of the dangerous building notice.
[97] The notice to fix was signed by Mr Laurenson.
[98] Mr Laurenson is a building manager. He is not an employee of the council. He is employed by Lakes Environmental Limited. Lakes Environmental Limited is the regulatory contractor for the council. It is a council-controlled organisation.
[99] The power to issue a notice to fix is derived from s 164 of the Building Act. Under s 164, the notice must be issued by a responsible authority. Mr More argues that while the council was a responsible authority within the meaning of s 164, Mr Laurenson personally was not, and in the District Court there was no evidence he had the delegated authority to issue the notice.
[100] For the reasons already traversed in connection with the dangerous building
notice, I allowed the council to call evidence about the council‘s delegations policy.
[101] The delegations register shows that the council has delegated all its functions under the Building Act to the Chief Executive Officer, and that the latter has in turn specifically sub-delegated the power and authority to issue s 164 notices to Lakes
Environmental Limited. The sub-delegation was effective from 25 June 2004 and has remained in force throughout the intervening period.
[102] In cross-examination at the hearing before me, Mr Laurenson was asked to identify the source of his own personal authority. He replied by referring to his job description, as well as the warrant that has been issued to him under s 177 of the Local Government Act 2002 and the warrant that has been issued to him under s 229 of the Building Act. I am not persuaded the two warrants do actually authorise Mr Laurenson to issue a notice to fix under s 164. The Building Act warrant says he is warranted in relation to the functions and powers under certain specified sections of the Building Act. The sections in question are listed but do not include s 164, although they do include the power of inspection. As for his warrant under the Local Government Act, that warrants him as an enforcement officer but is limited by its terms to offences and powers under the Local Government Act.
[103] However, the council‘s delegation policy has this to say about contractor delegations generally:
Except as specifically provided, delegates may not sub-delegate these powers. The delegation is made jointly and severally to the named company and to the principal officer(s) of that company. Whilst employees of the company may deliver the services, the delegation of powers is made only to the company and the principal(s).
And in relation to delegations to Lakes Environmental Limited in particular:
The principal of Lakes Environmental Ltd, or if delegated in writing, a member of Lakes Environmental Ltd staff, may exercise the powers, duties and responsibilities to supervise, manage and control all the activities under the contract between the Queenstown Lakes District Council and Lakes Environmental Ltd. These powers are delegated subject to the limits imposed by general law, council policies and specific conditions imposed by the Council.
[104] Mr Laurenson, as manager of building, is arguably a principal officer of Lakes Environmental Limited for the purposes of this clause. Further, in any event, his job description specifically refers to the power to issue a s 164 notice to fix.
[105] I am therefore satisfied Mr Laurenson did have the requisite authority to sign the s 164 notice.
[106] My finding that both the dangerous building notice and notice to fix were validly issued disposes of the grounds of appeal raised in relation to both these matters.
Wanaka Gym – failing to comply with notice to fix – failing to provide proper egress
[107] The notice to fix directed Wanaka Gym to provide appropriate fire egress from the group sleeping area by the provision of identified fire exits and escape paths, including appropriate signage, direction of door swing and construction of platforms outside the identified fire exits in accordance with the fire safety report and the building code. Those matters were to be attended to before any further use or occupation of the building was allowed.
[108] The evidence established that occupation continued after the notice was served without those matters being actioned.
[109] Mr More raises three grounds of appeal in relation to this conviction.
[110] I have already addressed and rejected two of those grounds, namely that the notice to fix was not properly authorised and that the imposition of fire safety standards to SA (community service use) standards was unlawful.
[111] The third ground of appeal is that the timeframe specified in the notice, namely ―before any further use or occupation is allowed of the building‖ was not a reasonable timeframe in the circumstances.11
[112] These circumstances are said to be that the notice to fix referred to the whole of the building, while the prohibition on use or occupation related only to the part covered by the dangerous building notice. Since use or occupation of part of the building was allowed, Mr More submits the stipulated timeframe was meaningless.
[113] There is, however, no suggestion that the appellants were in any way misled. All of the matters of non-compliance arose in the group sleeping area, and the notice
11 Section 165(1)(b) provides that a notice to fix must state a reasonable timeframe within which it must be complied with.
makes that clear. I accept Mr Cunliffe‘s submission that it was ―highly reasonable‖ to provide a timeframe which made compliance a pre-condition to further use or occupation of that particular area. That it was only occupation of the particular area that was prescribed was self-evident.
Dr Graham – wilfully removing the dangerous building notice
[114] Section 368(1) provides that:
1) A person commits an offence if the person—
(a) wilfully removes or defaces any notice published under this
Act; or
(b) incites another person to do so.
[115] Of all the charges, this was the only one that was not a strict liability offence.
[116] Mr More submits that the Judge entered a conviction based on credibility, but erred in his analysis of one aspect of the evidence.
[117] At the hearing in the District Court, Mr Laurenson and Mr Russell (another building officer) testified that after they had attached the dangerous building notice to the front door of the building, they gave a copy to Dr Graham and explained its contents. According to their evidence, she became verbally abusive and reached to tear it off the front door. They remonstrated with her, warning that it would be an offence to remove the notice. She ignored them, removed the original from the door and screwed it up, despite it being laminated. She then went back inside, taking both the original and the copy notice. That was on 25 June. On 27 June, Mr Russell attached another copy to the front door.
[118] For her part, Dr Graham testified that she wanted to prevent the fixing of the notice until she could establish that her terminally ill father was sitting down and able to take the shock of hearing the news. She claimed that within the hour she had reaffixed the notice, which was contrary to Mr Russell‘s evidence, because he testified that when he returned to the property on 27 June, the original was not there. Dr Graham‘s evidence was supported by testimony from her mother.
[119] The Judge did not find the evidence of Dr Graham and her mother credible.
[120] In the course of discussing their testimony, he said in his decision ―I am afraid that my conclusion is that Dr Graham has exaggerated the state of her late father‘s health at the time.‖ This is the area of the evidence that Mr More says the Judge got ―totally wrong‖. The father had terminal cancer and died some months later.
[121] I do not accept that the Judge got it totally wrong. The Judge‘s finding was made in the context of claims that Dr Graham‘s father was too ill to come to the door to see the notice. However, there was evidence the father had recently flown over from Melbourne and travelled by bus to Wanaka from Christchurch, that he and his wife went out to dinner the same day the notice was affixed and the next day walked down to the bus stop in Wanaka to catch the bus back to Christchurch.
[122] Against that background, the Judge‘s comments are justified.
[123] In any event, the conviction was not dependent on whether the Judge accepted Dr Graham‘s versions of events. Dr Graham did not deny removing the notice. Once she had deliberately removed the notice, the offence was complete. Whether she intended to remove it temporarily is irrelevant.
Outcome of appeal against conviction
[124] As will be readily apparent, Mr More has raised every possible ground of appeal. However, I am not persuaded that any of them has sufficient merit to warrant appellate intervention.
[125] The appeal against the 14 convictions is accordingly dismissed.
Appeal against sentence
Sentencing in the District Court
[126] In structuring his sentencing analysis, the Judge adopted a three-step approach following Hanham & Philp.12 First, the Judge assessed culpability, identifying the appropriate starting points having regard to mitigating and aggravating factors. Then he assessed the appellants‘ financial capacity. Thirdly, he undertook an overall assessment of the total imposition of fines.
[127] The Judge assessed Dr Graham‘s culpability, and hence the company‘s culpability, as being at least in the medium category, probably between medium and high categories of the Hanham & Philp scale. This was because of the potential for harm of the occupants and the fact that Dr Graham permitted a number of tenants to continue using the group sleeping area despite the dangerous building notice. The Judge said Dr Graham had deliberately defied the notices and done so for a commercial purpose. He described her actions as high-handed and her attitude towards the council as contemptuous, noting that at no stage had she ever demonstrated any significant remorse. Rather, she had attempted to avoid responsibility.
[128] Of the various charges, the Judge identified the six charges laid under s 168 of the Building Act (failing to comply with the notice to fix) to be the most serious. He considered that in respect of those charges, a starting point of a $5000 fine for each appellant was appropriate, except for the two offences which involved allowing persons to continue to occupy the prohibited parts of the building. For those two offences, he found that the starting point should be a $7500 fine.
[129] As regards the s 128 offences (breach of dangerous building notice), an appropriate starting point was $7500, but because they were committed during an
earlier period, the Judge said he was prepared to adjust this to $4500.
12 Department of Labour v Hanham and Philp Contractor Ltd HC Christchurch CRI-2008-409-
000002, 18 December 2008.
[130] For the s 40 offences (undertaking work otherwise in accordance with a consent) the Judge said that an appropriate starting point was a $5000 fine.13 This was reduced to $3500 on account of there being four such offences.
[131] In respect of the s 116(b) offences (dangerous use), the Judge cited Waitakere City Council v Graham14 and said that an appropriate starting point could have been a fine of between $6000 and $8000. However, having regard to the other fines payable by Wanaka Gym for similar offending, the Judge adopted a lower starting point of $4000.
[132] That left the offence committed by Dr Graham under s 368 of the Building Act (removing the dangerous building notice). In the Judge‘s view there were several aggravating features of her conduct which warranted a starting point of a fine of $2000.
[133] Having reached those various starting points on the basis of the aggravating factors, the Judge went on to say that he had considered whether there were any mitigating factors, including any remedial action taken after August 2008, but concluded there were no factors of any significance.
[134] The Judge then turned to financial capacity. He was critical of the adequacy of the information that had been provided and found that Dr Graham and Wanaka Gym had failed to establish incapacity.
[135] Finally, in undertaking an overall assessment, the Judge said this was to be undertaken against the background of the principles and purposes of sentencing under the Sentencing Act 2002, as well as the purposes of the Building Act. Also relevant, in his view, was the fact of the significant history between the council and Dr Graham and the fact the council had found it necessary to initiate this
prosecution.
13 Following Wilson v Fowler HC Auckland AP203/98, 16 March 1999 and Fairley v North Shore
City Council HC Auckland CRI-2008-404-000408, 4 May 2009.
14 Waitakere City Council v Graham DC Auckland CRI-2007-004-005596, 3 July 2007.
[136] As regards apportionment of the fines as between Dr Graham and Wanaka Gym, the Judge found that the fines should be borne equally. His reason for so finding was that, although the company was the owner of the building and had been convicted of more offences than Dr Graham, nevertheless it was Dr Graham who was in charge of the company; it was Dr Graham who had chosen to adopt an obstructive attitude towards the council; and it was Dr Graham who would receive the financial benefits from having tenants.
[137] The Judge saw no reason to reduce the fine for wilfully removing the dangerous building notice, on the grounds of Dr Graham being required to pay fines for the other offences. In his view, the charge laid under s 368 was a discrete offence.
[138] The Judge then addressed the issues of continuing offences,15 costs and an application for Dr Graham to be discharged without conviction.
[139] The Judge found the imposition of additional penalties for the continuing offences was not necessary, but that the council was entitled to costs in the sum of
$9000.
[140] Dr Graham‘s application for a discharge without conviction was based on concern that a conviction could prevent her from continuing her career in Japan as a geisha. The Judge, however, was not persuaded that the consequences of conviction would be disproportionate to the gravity of the offending. The Judge also declined an application for name suppression.
[141] The effect of the Judge‘s decision can be conveniently summarised:
Fines imposed on the company
For the three offences against s 168: $17,500
For the offence against s 128: $4500
For the four offences against s 40: $14,000
15 The charges under ss 116B, 128 and 168 involved continuing offences.
For the offence against s 116B: $4000
Fines imposed on Dr Graham
For the three offences against s 168: $17,500
For the offence against s 128: $4500
For the offence against s 368: $2000
Grounds of appeal against sentence
[142] On appeal, Mr More advanced the following arguments:
(a) The fines imposed in respect of the set of charges laid against both Wanaka Gym and Dr Graham should only have been imposed on the company.
(b) The fines imposed were manifestly excessive.
(c) The application for a discharge is supported by new information not available to the Judge, and should be granted.
(d) The Judge was wrong to decline the application for name suppression.
Did the Judge err in imposing penalties against both Wanaka Gym and
Dr Graham?
[143] The set of offences in respect of which both Dr Graham and Wanaka Gym were convicted relate to the three offences under s 168 of failing to comply with the notice to fix and the offence under s 128 for permitting the use or occupation of a building subject to a dangerous building notice.
[144] Dr Graham‘s personal liability derives from s 386 of the Building Act which,
under the heading ‗Liability of principal for acts of agents‘ states at subs (5):
(5) If a body corporate is convicted of an offence against this Act, every director and every person concerned in the management of the body corporate is guilty of the same offence if it is proved—
(a) that the act that constituted the offence took place with that person's authority, permission, or consent; and
(b) that he or she knew or could reasonably be expected to have known that the offence was to be or was being committed and failed to take all reasonable steps to prevent or stop it.
[145] Mr More submits that because she was the sole director and shareholder, Dr Graham was effectively the company. Her actions were the actions of Wanaka Gym and therefore, while technically she may have been legally guilty with the company, the penalty should be imposed on the company alone to reflect that it was the company that was the offender. She should not be penalised twice simply because she operated through the vehicle of a company.
[146] An obvious objection to this argument is that it is inconsistent with the existence of s 386(5). Undaunted, however, Mr More further argued that the section is aimed at companies with more than one director, not a one-person company like Wanaka Gym. In his submission, the situation was analogous to cases where husband and wife co-owners have each been convicted but treated as one defendant
for sentencing purposes.16
[147] I disagree.
[148] Section 386(5) is not expressed to be subject to any such limitation as suggested, and it has been applied without occasioning any controversy to sole directors.17 There are good policy reasons why it should apply to one-person companies.
[149] Further, the decisions relied upon by Mr More are distinguishable. In both cases there was significant remorse, while in Dong the prosecution consented to only one defendant being convicted and fined, while in Sirigiri the wife, unlike
Dr Graham, had not taken any active part in the offending.
16 Auckland City Council v Dong DC Auckland CRI-2007-004-013562, 1 April 2008; Sirigiri v
Manukau City Council HC Auckland CRI-2008-404-000086, 27 June 2008.
17 See for example Te Puru Holiday Park Ltd v Thames Coromandel District Council HC Hamilton
CRI-2008-419-25, 11 May 2009.
[150] Ultimately, the Judge in this case had the discretion whether to impose fines on both offenders. The approach he took was one that was open to him in the circumstances. I am unable to detect any error of reasoning or principle. There is no element of double jeopardy.
Was the quantum of the fines manifestly excessive?
[151] Mr More argued that the Judge failed to have regard or sufficient regard to important mitigating factors and that he erred in his assessment of the gravity of the offending. In Mr More‘s submission, the offending was ―very much towards the lower end‖ as opposed to being between medium and high.
[152] The important mitigating factors which the Judge is said to have ignored are identified as follows:
(i)The shadecloth had been there for many years without causing any actual danger and without attracting any attention from the council inspectors. It was removed immediately the council‘s concerns were made known at a judicial settlement conference which took place on 13 June 2008.
(ii)The wiring was not live and concerns relating to the wiring were rectified soon after the building notice had been attached.
(iii)The residents were all young people who knew their way around the building and were well able to exit it in the event of fire.
(iv)The creation of the 400mm gap was a work in progress. There was substantial compliance in the majority of the area.
(v)The work which was undertaken without a building consent did not compromise the safety of the building or the safety of the occupants.
(vi)The same factual matters were relied upon for more than one charge.
(vii)The determination of the Department of Building and Housing was that the fire safety standards were not necessary for the accommodation provided by the company.
[153] Several of these points were made in support of the appeal against the convictions, and for the reasons already discussed, I do not accept they have any real force. Some are also not supported by the evidence. For example, the claim that the shadecloth was removed immediately in June. There was in fact evidence that the shadecloth was still in place in a sleeping area in July 2008, and in other parts of the building in August 2008. The shadecloth may never have caused any actual danger, but that is only because there was never a fire. The shadecloth was nevertheless dangerous and in that sense there was actual danger.
[154] As for the 400mm gap being a work in progress, the point, as Mr Cunliffe submitted, is that the building should simply not have been used for sleeping accommodation during a work in progress phase. The appellants‘ own expert witness accepted that if a fire started in the studio bedroom where there was no gap, there was a danger to others in the group sleeping area. Further, while not all of the work undertaken without building consent compromised safety, some of it did.
[155] I see no reason to depart from the Judge‘s assessment of the gravity of the
offending.
[156] Nor do I accept the Judge failed to have regard to the factual overlap between several of the offences. On the contrary, it is clear from his comprehensive sentencing notes that he did. As I already mentioned, the Judge undertook an overall assessment, reduced the level of some fines on account of duplication and also refused to impose any additional penalties in respect of the continuing offences.
[157] The approach the Judge adopted is consistent with the leading decision on sentencing under the Building Act, Wilson v Fowler,18 and other comparator cases.19
These confirm the fines were within range.
Dr Graham’s application for a discharge without conviction
[158] Section 107 of the Sentencing Act states that an offender must not be discharged without conviction unless the Court is satisfied that the direct and indirect consequences of the conviction would be out of all proportion to the gravity of the offence.
[159] As I have mentioned, the Judge was not so satisfied.
[160] Following Hughes,20 the Judge‘s conclusion is not to be treated on appeal as the exercise of a discretion. Rather, it is for me to undertake my own independent assessment of the merits.
[161] I have already addressed some aspects of the gravity of the offending arising out of submissions that the fines were manifestly excessive. Further aspects raised by Mr More in support of the application for a discharge relate to Dr Graham‘s apparent lack of remorse and the s 368 offence (removing the notice).
[162] Mr More submitted that Dr Graham‘s apparent lack of remorse has to be seen against the history of her dealings with the council, her desire to provide residential accommodation as a single household and the council‘s constant attempts to thwart this by insisting she was providing short-term visitor accommodation. Mr More contended that Dr Graham‘s position had been vindicated by the determination.
[163] However, in my view, for the reasons already identified, this is to misconstrue the determination. If anything, the determination vindicates the council. It certainly
18 Wilson v Fowler HC Auckland AP203/98, 16 March 1999.
19 Nelson City Council v Ryan DC Nelson CRN7042007738, 17 June 1997; Wellington City Council v Brodie DC Wellington CRN9085019377, 27 July 2000; Waitakere City Council v Columbus Academy (NZ) Ltd DC Auckland CRN3090018943, 3 July 2003; Waitakere City Council v Graham DC Auckland CRI-2007-004-005596, 3 July 2007; Auckland City Council v Kumar DC Auckland CRI-2007-004-022014, 22 July 2008; Sirigiri; Fairley.
20 R v Hughes [2008] NZCA 546.
does not vindicate Dr Graham. It is most unfortunate that Dr Graham appears to have become so fixated on the visitor accommodation issue.
[164] My reading of the evidence is that the reason Dr Graham has no remorse is because of her arrogant and aggressive attitude towards the council and her stubborn refusal to accept that the safety of persons sleeping in the building was compromised. There has been no vendetta on the part of the council. Its concerns were legitimate.
[165] As regards the s 368 offence, Mr More submitted it fell very much at the lower end of the scale. Dr Graham‘s actions were borne out of understandable anger and frustration. She was at the end of her tether having returned to New Zealand in the hope and expectation that outstanding matters with the council would be able to be settled, only to be confronted with a fresh allegation involving the shadecloth, which the council had known about for some time. She was also under stress as the result of her father‘s illness. She replaced the notice, and there were no ongoing consequences. No member of the public would have had occasion to approach the building, and in any event, would not be sleeping there, which was the gravamen of all the offending. The tenants were fully aware of the state of the building and therefore the purpose of the notice (to alert the world to the danger) was not undermined by Dr Graham‘s conduct.
[166] Against that is the aggravating fact that Dr Graham was warned not to remove the notice and told that she would be committing an offence were she to do so. Yet she persisted. Her explanation for her defiant conduct was not credible. She did not respond to an email from the council requiring her to reaffix the notice, and when a council officer went back to the property two days later, on 27 June 2008, the notice was not there. He affixed another notice, and when he returned less than an hour later it was to find a chalkboard placed in front of the notice, obscuring it from view. The chalkboard had a message written on it stating ―The old Wanaka Gym – single household unit – have a happy day.‖ New tenants were arriving from May
2008 through to July 2008.
[167] In light of those facts, I am unable to accept Mr More‘s characterisation of
the offending.
[168] Like the District Court Judge, I consider that, viewed overall, the gravity of Dr Graham‘s offending is somewhere between the medium to high category of this type of offending.
[169] In itself, that does not of course preclude a discharge, although obviously the more serious the offending, the more likely it is that the disproportionality test will not be satisfied.21
[170] Dr Graham is a social anthropologist with a special interest in Japan. She has a most impressive academic record and has acquired international fame as the result of becoming the first Westerner to be accepted as a geisha.
[171] The concern is that these convictions will prevent her from being able to continue residing in Japan and so have serious consequences for her career.
[172] Dr Graham has been engaged in field work in Japan since 2007, working on her research topic, the geisha, and lecturing at a Japanese university. She currently has a long-term visa for three years which is due to expire on 31 March 2012. She had hoped to apply for permanent residency, but worries that these convictions will render that impossible. She also doubts that she will be able to renew her present long-term visa if the convictions remain.
[173] In support of Dr Graham‘s claims about the effects of the convictions on her ability to reside in Japan, she provided the Court with two opinions. One is from a Japanese mentor, a retired lawyer and former Judge. The other is an opinion obtained by Mr More from a Japanese lawyer specialising in immigration law in Japan, a Mr Michio Matsuzaki.
[174] There is a difference in emphasis between the two opinions, and of the two I prefer that of Mr Matsuzaki, who is independent. My understanding based on his opinion and the information about Dr Graham is as follows:
(i)Under Japanese immigration law, being sentenced to a term of imprisonment of one year or longer is grounds for revocation of a visa. Dr Graham is obviously not in that category.
(ii)A foreigner who has been sentenced to a term of imprisonment of more than one year is not eligible to enter Japan. Again, Dr Graham is not in that category.
(iii)As a general rule, it is a key pre-requisite to obtaining permanent residency that the applicant must have continuously resided in Japan for more than ten years. There is, however, a fast-track route (my terminology) whereby a person who has made a significant contribution to Japanese society may apply for permanent residency even although they have lived in
Japan for less than ten years.22 Dr Graham has not resided in
Japan for more than ten years, but in planning to apply in
2012, intended to rely on the contribution she has made to Japanese anthropology, a contribution which her mentor clearly regards as outstanding.
(iv)Although these convictions have not resulted in any term of imprisonment, their result is that it will ―hardly be possible‖ for her to avail herself of the fast-track route to permanent residency.
(v)Failing to obtain permanent residency this year will not however prevent her from continuing to live and work in Japan if her visa is renewed.
(vi)The convictions may reduce her chances of obtaining a renewal of her visa, or of eventually obtaining permanent residency after ten years‘ consecutive residency.
[175] It follows that while these convictions will prevent her from obtaining permanent residency in 2012, it is not certain they will prevent her from obtaining a renewal of her visa, or from eventually obtaining permanent residency. The disproportionality test does not require absolute certainty of consequences, but there must be a real and appreciable risk. In this case, however, the most that can be said is that the convictions will, or may, reduce her chances. Further, Dr Graham says she is the world‘s foremost expert in her field. If her international standing and contribution to Japanese society is as significant as is being claimed, then the risk of non-renewal must be mitigated.
[176] In support of her application for a discharge, Dr Graham also states that the battle with the council has almost bankrupted her and taken a toll on her health. Those, however, are not consequences of the convictions, and it is wrong for her to say, as she does in her affidavit, that all of it is the council‘s fault because the council wrongly refused to process her first building consent as a single household unit.
[177] Although the offences were not imprisonable, the offending was nevertheless relatively serious. As Mr Cunliffe points out, the residents were young, vulnerable people, many of them from overseas, who came to this country expecting our laws would protect them. In my view, the Judge‘s reference to the Childers Backpackers
Hostel tragedy in Queensland was not unjustified.23
[178] In my assessment, the direct and indirect consequences of conviction are not out of all proportion to the gravity of the offending. The s 107 test is not satisfied, and I therefore uphold the Judge‘s decision.
[179] It follows that it is not necessary for me to consider whether the fact the council was required to seek injunctions against Dr Graham‘s company should be
23 Sentencing notes at [67]. As the Judge explained, in the Childers Backpackers Hostel, 15 people lost their lives as a result of the fire caused by the activities of an arsonist. The subsequent enquiry disclosed safety deficiencies in relation to the building.
taken into account. That would be a matter bearing on the Court‘s residual discretion,24 and may well have been relevant had the disproportionality test been satisfied.
Appeal against refusal of name suppression
[180] The District Court hearing attracted some publicity, and Dr Graham‘s name
was published. No concerns were raised about this during the trial.
[181] An application for name suppression and suppression of information relating to her activities in Japan was, however, later made prior to sentencing.
[182] The Judge declined the application.
[183] On appeal, Mr More acknowledged that Dr Graham‘s name has already been published. However, he contended name suppression was necessary to stop further damage to Dr Graham‘s reputation. In particular, he was concerned that because of her international standing, publication of Dr Graham‘s name would find its way quickly to the internet.
[184] For his part, Mr Cunliffe, relying on Liddell,25 and the principle of open justice submitted that the Judge‘s decision should be confirmed. Mr Cunliffe was, however, prepared to consent to interim suppression for the duration of the appeal hearing itself.
[185] I accordingly made an interim order to that effect.
[186] However, a Google search revealed that the fact of Dr Graham‘s convictions
has already made its way to the internet.
[187] As I advised counsel, I considered there was no basis in law for any suppression orders, and made a ruling to that effect.
24 The existence of which has recently been confirmed by the Court of Appeal in Blyth v R [2011] NZCA 190.
25 R v Liddell [1995] 1 NZLR 538.
Outcome of appeal
[188] The appeals against conviction and sentence are dismissed. [189] The application for name suppression is declined.
Solicitors:
D More, Dunedin
Macalister Todd Phillips, Queenstown
6