Woolley v R - [2014] NZCA 178

IN THE COURT OF APPEAL OF NEW ZEALAND

CA687/2013
[2014] NZCA 178

BETWEEN	PHILIP JOHN WOOLLEY Appellant
AND	THE QUEEN Respondent

Hearing:	19 February 2014 (further submissions received 5 March 2014)
Court:	Ellen France, MacKenzie and Mallon JJ
Counsel:	D J Clark for Appellant J M O’Sullivan and A A Jacobs for Respondent
Judgment:	12 May 2014 at 11.30 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.
BThe appeal against conviction is allowed in part. The convictions on counts 3 and 4 relating to breaches of s 9(3) of the Resource Management Act 1991 are quashed. No order for a retrial.
CThe appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellen France J)

Table of Contents

Para No

Introduction  [1]
Background  [6]
The reasons for verdict  [12]
The interrelationship between ss 9 and 13  [21]
Duplicity?  [40]
     Postscript  [43]
“Maintenance” of the drainage channel?  [44]
     The Judge’s interpretation of maintenance  [51]
Our analysis  [54]
Sentence  [62]
     The sentencing remarks  [63]
     The appeal against sentence  [71]
Result  [81]

Introduction

On 8 May 2010 Philip Woolley, the appellant, drove his digger into the Hinepango Reserve wetland at Rarangi (the wetland). As he drove, he crushed trees and other vegetation. He then drove the digger along an existing drainage channel, excavating and enlarging it as he went. This led to the destruction of vegetation in a strip about 10 metres wide along the western side of the channel. Mr Woolley did not have a resource consent to carry out this work. He was charged on indictment with four offences against the Resource Management Act 1991 (the Act) in relation to his activities in the wetland.
Following a trial before a Judge alone, Judge Harrop, Mr Woolley was convicted on 10 June 2013 of these charges.[1] He was sentenced by Judge Harrop to two months home detention and ordered to pay reparation of $38,253 and costs of $1,628.75.[2] Mr Woolley appeals against conviction and sentence.
[1]R v Woolley DC Blenheim CRI-2010-006-1979, 10 June 2013 [reasons for verdict].
[2]R v Woolley DC Blenheim CRI-2010-006-1979, 20 August 2013 [sentencing remarks]; and 10 September 2013. (On 10 September, the Judge confirmed a sentence he had already discussed on 20 August, but deferred pending the receipt of further information: see below at [69].)
The conviction appeal raises two issues. The first issue concerns the interrelationship of ss 9 and 13 of the Act which deal, respectively, with restrictions on the use of land and of riverbeds. Mr Woolley says that once the Judge found the wetland was a riverbed, he could only be charged with breaches of s 13, and not s 9 as well. The second issue is whether what Mr Woolley did comprised “maintenance” of the drainage channel.
The sentence appeal challenges the imposition of home detention and the amount of reparation. Both are said to be manifestly excessive.
We deal first with the conviction appeal and then with sentence. To put…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Woolley v R

Details

AGLC: Woolley v R [2014] NZCA 178
Case: [2014] NZCA 178
Decision Date: 12 May 2014 at 11.30 am

CaseChat Overview and Summary

Philip Woolley, the appellant, was convicted on four counts in relation to his activities in the Hinepango Reserve wetland at Rarangi, which involved driving his digger through the wetland and enlarging an existing drainage channel. The Court of Appeal was asked to decide two issues on appeal against conviction. The first issue concerned the interrelationship between ss 9 and 13 of the Resource Management Act 1991. The second issue was whether what Mr Woolley did constituted “maintenance” of the drainage channel. The Court found that there was an overlap in the functions of territorial and regional authorities in this case, and that charges under both sections were possible. However, the Court concluded that it was duplicitous to charge Mr Woolley under both ss 9 and 13 because there was no point of distinction between the activities covering the excavation activity in either the riverbed or the wetland. It followed that the appeal against conviction on counts 3 and 4 had to be allowed. The Court found that the Judge was right to ascribe to “maintenance” its ordinary dictionary meaning of “keep[ing] up”/“preserv[ing]”. The Court dismissed the appeal in relation to counts 1 and 2. The appeal against sentence challenged the imposition of home detention and the amount of reparation. The Court found that the sentence of home detention was within the available range, and that the quantum of reparation was not manifestly excessive. The appeal against sentence was dismissed.

Orders