Withington v Bay of Plenty Regional Council
[2018] NZHC 1237
•30 May 2018
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2017-070-3201
[2018] NZHC 1237
BETWEEN ROGER WITHINGTON
Appellant
AND
BAY OF PLENTY REGIONAL COUNCIL
Respondent
Hearing: 29 May 2018 Counsel:
V J Hamm and T J Conder for Appellant A A Hopkinson for Respondent
Judgment:
30 May 2018
JUDGMENT OF BREWER J
This judgment was delivered by me on 30 May 2018 at 11:00 am pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Holland Beckett Law (Tauranga) for Appellant
Cooney Lees Morgan (Tauranga) for Respondent
WITHINGTON v BAY OF PLENTY REGIONAL COUNCIL [2018] NZHC 1237 [30 May 2018]
Introduction
[1] Judge Harland convicted and discharged Mr Withington1 for disturbing the foreshore in a manner that has or is likely to have an adverse effect on it.2 He now appeals that outcome, submitting he should have been discharged without conviction.
[2] My task is to examine the outcome to see whether an error has been made such that I should impose a different one.
Background
[3] Mr Withington pleaded guilty to the charge. The facts are not in dispute but, as is common with charges brought under the Resource Management Act, they are set out at great length. I will summarise them.
[4] Mr Withington and his wife own land adjacent to an inlet of Tauranga Harbour. A drain flows through their property to a floodgate and then along a channel to the sea. Mr Withington applied to the respondent (the Council) in 2013 for resource consent to use a digger to clear out the channel from the floodgate to a point 500 metres out into the harbour. He intended this to prevent flooding of his property. He did not proceed with the application once the Council explained the complexity of the resource consent process.
[5] In 2016, Mr Withington had further contact with the Council about clearing the channel. This included a meeting on site at which Mr Withington gave his opinion that mangroves in the harbour were choking the channel and causing flooding on his property. The Council’s officers recommended that Mr Withington clear the drain on his own property and fix the floodgate. If that did not reduce the flooding, further consideration would be given to doing work on the channel. Mr Withington was reminded that a resource consent would be required for any work seaward of his floodgate.
1 Bay of Plenty Regional Council v Withington [2018] NZDC 1800.
2 Contrary to s 12(1)(c) Resource Management Act 1991. The maximum penalty is two years’ imprisonment and/or a fine not exceeding $300,000.
[6] Nevertheless, Mr Withington engaged a contractor who possessed a 20 tonne digger. He told him to clear the channel seaward of the floodgate for a distance of about 215 metres. The contractor did that, piling about 1,290m³ of material along the length of the excavation.
The Judge’s sentence
[7] Judge Harland saw the issue on sentencing as whether she should discharge Mr Withington without conviction, convict and discharge him, or convict him and impose a fine.
[8] The Judge had to consider the effects on the environment resulting from Mr Withington’s illegal activity. After carefully reviewing the various reports and submissions, her Honour declined to categorise the effect of the offending on the environment as minor:
[56] … This was a reasonably extensive area of unlawful clearance in the coastal marine area and I accept the conclusions of the report writers as to the significance of the effects on the environment both actual and potential. Only part of these effects can be remediated and only in time.
[9] Judge Harland went through the three-step process of determining whether the threshold for exercise of her discretion to discharge without conviction was crossed.3 The Judge first identified the gravity of the offending, identified the direct and indirect consequences of a conviction for Mr Withington and then assessed whether those consequences would be out of all proportion to the gravity of the offending.
[10] In assessing the gravity of the offending, the Judge was particularly impressed by Mr Withington’s personal circumstances. Mr Withington, at 63 years of age, has been a responsible and law-abiding citizen. He has been actively involved in the Aongatete Estuary Care Group as treasurer, and his wife was the chairman until recently. Both had felt the need to resign because of the charge. Further, there had been a successful restorative justice conference with some $2,000 paid for remediation and $10,000 as a costs contribution.
3 Sentencing Act 2002, ss 106 and 107.
[11]The Judge accepted that Mr Withington:4
… has clearly felt profoundly ashamed and distressed by his actions. His health has been affected, and he has displayed, in my view, remorse over and above that which would normally be displayed by a defendant in these circumstances. The extent of the defendant’s remorse for his actions were powerfully expressed at the restorative justice conference and clearly had a significant impact on those who were present representing the Council.
[12] In the end, the Judge assessed the gravity of the offending to be moderately serious and not at the lower end of the scale, despite the remorse expressed by Mr Withington, which included him making the payments.
[13] The direct and indirect consequences put before the Judge, and her responses to them, were as follows:
·A conviction would be a barrier to Mr Withington travelling to China for business purposes. The Judge pointed out there was no evidence as to whether a conviction of this nature would impede travel to China. She said it would be surprising if it did.
·The effect of a conviction on Mr Withington’s health. The Judge said:
[79] I accept that the defendant has been extremely stressed by these proceedings, and that this has affected his health. Once the proceedings are concluded, however, it is reasonable to expect that that level of stress will abate if not disappear, and that life will return to normal.
·Stigma and embarrassment attaching to and resulting from a conviction. This consequence related primarily to Mr Withington and his wife’s involvement in the local estuary care group. The Judge took the view that a conviction for an offence of this nature should not disqualify Mr Withington from continuing his involvement with the estuary group and nor should it damage his reputation to the extent feared.
[14] In weighing the gravity of the offending against the consequences of a conviction, the Judge said:
4 At [62].
[80] I must determine whether the direct and indirect consequences of the offending are disproportionate to the gravity of the offending. Unfortunately, try as I might, I cannot agree that they are. There is nothing unusual about the consequences of the offending that outweigh the gravity of it, or are disproportionate to it.
[15] Her Honour went on to consider whether to convict and discharge Mr Withington or convict and fine him. The Judge’s view was that any fine should be set at $30,000 to reflect the scale of the unlawful activity, the adverse environmental effects caused by the offending and the defendant’s knowledge he needed to obtain a resource consent. The personal mitigating factors would bring the fine down to
$18,675. However, because of payments already made by Mr Withington, the outstanding amount would be $6,206.50. The Council, although expressing itself to be neutral, supported a discharge without conviction. Accordingly, the ultimate sentence was a conviction and discharge.
Discussion
[16]The two issues for me to decide are:
(a)Was the Judge in error to conclude the gravity of the offending was moderately serious and not at the lower end of the scale; and
(b)Did the Judge err in her assessment of the proportionality of the consequences of a conviction against the gravity of the offending?
Gravity of the offending
[17] I have had the benefit of lengthy written submissions from Mr Hopkinson for the Council (the Council maintains its neutrality) and from counsel for Mr Withington. I have considered them against the findings made by Judge Harland. I see no error in the Judge’s assessment of the circumstances of the offending itself. This was deliberate offending which had a deleterious effect on the estuarine environment. Ms Hamm makes careful submissions about the limited extent of the damage to the environment. I do not consider a fine assessment is necessary. It cannot be said there was no damage, and it cannot be said there was extensive damage having regard to the size of the affected environment.
[18] However, the law is clear that when assessing the gravity of an offence, all circumstances relevant to the offending, including personal circumstances, must be taken into account. The proportionality assessment, which is the third step, is made in relation to the end point of the assessment of gravity.
[19] In this case, Judge Harland decided Mr Withington’s personal circumstances, when applied to the circumstances of the offending, reduced the gravity of the overall offending to a point where the proper course was to convict and discharge without further penalty. That could not be done with moderately serious offending. It could be done only with offending at the lower end of the scale. I add that I agree with the Judge’s analysis of Mr Withington’s personal circumstances and the weight which the Judge accorded them. But it follows the Judge erred in not concluding that the overall gravity of the offending was low.
Proportionality
[20] I agree with the Judge’s assessment of the direct and indirect consequences of a conviction for Mr Withington. However, Ms Hamm asked me to accept as fresh evidence an affidavit from Mr Withington sworn on 2 March 2018 exhibiting a letter from his General Medical Practitioner. I agreed to do so because the issue of Mr Withington’s health had to be considered by Judge Harland and the doctor’s letter is by way of update.
[21] Mr Conder (who was deputed to do so by Ms Hamm) submitted that the consequences put to the Judge, amplified by the new doctor’s letter, establish that the consequences for Mr Withington of a conviction are out of all proportion to the gravity of his offending.
[22] The letter from Dr Vicarage confirms that Mr Withington was admitted to hospital as an emergency on 22 November 2017. He was found to have several very significant medical issues. He has heart problems and, at the time of his admission, acute kidney failure.
[23] Mr Withington’s heart conditions require lifelong medication and regular ongoing cardiologist review. The kidney failure has essentially resolved but will require ongoing monitoring. Dr Vicarage concludes:
I can confirm that any further stress, particularly anything such as a criminal conviction, would have an extremely deleterious effect on his present and future health.
[24] Judge Harland, when she assessed the relationship between the consequences and gravity of the offending, used the word “disproportionate” to describe the test. If the Judge did not mean that as shorthand for “out of all proportion to the gravity of the offending”, then she was in error. The test that consequences must be “out of all proportion to the gravity of the offending” is a high one. It is not a matter of mere disproportion.
[25] I have concluded that the gravity of the offending was low but so too are the direct and indirect consequences to Mr Withington of the conviction.
[26] First, I shine the light of reality on the situation. Mr Withington pleaded guilty to a charge under the Resource Management Act. He has not lied, cheated, defrauded, been violent or depraved. He cleared a channel and this had an adverse effect on the foreshore. In all the circumstances, including his personal circumstances, he was convicted and discharged without further penalty.
[27]There is no evidence his travel to China will be impeded.
[28] Mr Withington and his wife have resigned from their ecological support group and I must imagine that the circumstances of the resignation are known. Mr Conder submitted there would be an element of personal vindication in a discharge without conviction because, on a personal level, people would be able to view Mr Withington’s conduct as not meriting sanction. That might be so. But I consider the Judge’s view on the matter of stigma to be correct. This is low level offending and it is a natural consequence of his actions that people’s view of him may be affected.
[29] Mr Conder submitted also that in view of Mr Withington’s health, anything that would serve to reduce the stress of his life must be beneficial and weigh in the scales.
[30] So far as the doctor’s letter is concerned, I take it that Mr Withington has significant health issues unrelated to the present case. Of course, it would be a good idea for Mr Withington not to be exposed to a lot of stress. But a conviction and discharge for low level offending should not be a great stressor. As the Judge observed, its effects will dwindle as time passes. I regard the doctor’s opinion on the likely effect of a conviction as not being substantially helpful.
Decision
[31] I do not find error in Judge Harland’s decision not to discharge without conviction. I find that the direct and indirect consequences to Mr Withington of his conviction are not out of proportion to the gravity of his offending, let alone out of all proportion to the gravity of his offending.
[32]Accordingly, the appeal is dismissed.
Brewer J
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